Chances of Winning Unemployment Appeal?

[commentator]

Okay, you want an expert....but you do not want to hear what every one of the people who have answered you have said? That's not a good sign. I hope you will be able to control this defensiveness in your appeals hearing.

First of all, we are assuming that as soon as you got the initial decision denying benefits, you immediately, or within the time limit, did notify the department that you wish to appeal this decision, didn't you? Otherwise, it's a moot question. And since then, each week you have been certifying for benefits as you were told to do at the beginning, though you have not been receiving any checks? Okay, good. Now....

The initial decision will have ONE reason on it that you were terminated. It will be, probably from what I can determine, that you voluntarily quit by your own choice. That they said that at that point you were in no danger of termination is great for your side.

The thing to remember is, pick your reason, pick your argument, and while in your appeal, stick to that one. Don't go chasing rabbits off into whether you were actually tardy at your company if you were sitting at your seat, walking in the door, in the can, whatever. We are not talking about tardiness here, except that you were threatened by your employer that you were to be fired, because of your tardiness.

The hearing will be formal, whether by phone or in person. If given a choice, I'd always go with "in person", since it lowers the chances your employer will actually show up. Since you aren't working anyway, you've got the time to go to the site. Since you are appealing, you will speak first. You will be sworn in, and the hearing will be recorded.

You will say that you were told you were about to be terminated. (Very important,you need to try to remember the exact phrases used, who said them and when) You were told that if you wrote a letter of resignation, you would be eligible for rehire, it would improve your reference, etc. Whatever motivational encouragement you were given. You were NOT given any opportunity to change the behavior they were threatening to fire you for, which was tardiness, though you did feel you had not really been tardy.

You did not want to quit your job, and would have done anything within your power to keep working if you had been allowed to do so. You feel that this situation is retaliation for a complaint against your supervisor that you gave to HR a few weeks ago. Before this time, you had had no disciplinary warnings or write ups and your job performance was not ever an issue.(If this is true)

Yes, the law does say you can quit your job for a good job related reason such as harrassment by a supervisor, I'd stay away from this. Remember, you did not quit your job. You were forced to resign by threat of termination.

Then the employer will speak. No matter what they say, how wrong they are, how much they lie, you do not make comments, roll your eyes, gasp, or in any way argue with them. You will be given an opportunity for rebuttal. Do not, I encourage you, pop off to them, call them an idiot or liar, or be disrespectful to the appeals officer conducting the hearing. Be polite and professional and sincere. Say you did your job to the best of your ability and reiterate that you did not want to leave.

Even if the employer does not show up for the hearing, you will be required to tell your story just as if they were there. It is totally possible that you will not win, even if they do not show up. If you were tardy, by the definition of tardy you have mentioned to us here, it would have been a more clear cut reason for termination, and since you probably did meet the definition of tardy, if you had received points for this before, they could probably have terminated you and your benefits would have been denied.

They actually did you a favor by asking you to do the resignation letter instead of terminating you for tardiness, since you can now say that you were encouraged to "resign in lieu of termination" due to having filed a complaint, were threatened with termination....once again, do not run off down the tardy trail, this is your weak area.

I actually do not think you should hire an attorney, as they would only be able to use the argument I have outlined for you above (if they were good and knew exactly which path to take) and your chance of winning....well, your situation is what it is. It will matter a great deal how well you can present it. It's worth a shot, anyhow.

 

[GonzoFL]

commentator is dead on the money with their advice to you. I have been through the appeal process(via 3 way phone here in Florida). I have to tell you that any appeal is a roll of the dice. The referee or appeals judge will be looking at a number of different things: Findings of fact,conclusions of law and credibility of the parties. State you case calmly and honestly....write it down and read it if you like. Be sincere(for God's sake don't whine or cry) and simply state your case. You could also do some research for any OK case law that might be on point to your situation. Be prepared for the case....go about it in the same manner that a trial lawyer would prep before a case. If you stick to the advice that commentator gave you concerning the facts....I honestly think you have a fair chance. I prepared and did research for 2 months before my hearing and soundly won the appeal not once...but twice.

 

[mlane58]

commentator is dead on the money with their advice to you. I have been through the appeal process(via 3 way phone here in Florida). I have to tell you that any appeal is a roll of the dice. The referee or appeals judge will be looking at a number of different things: Findings of fact,conclusions of law and credibility of the parties. State you case calmly and honestly....write it down and read it if you like. Be sincere(for God's sake don't whine or cry) and simply state your case. You could also do some research for any OK case law that might be on point to your situation. Be prepared for the case....go about it in the same manner that a trial lawyer would prep before a case. If you stick to the advice that commentator gave you concerning the facts....I honestly think you have a fair chance. I prepared and did research for 2 months before my hearing and soundly won the appeal not once...but twice.

All true, except for the case law. The hearing officer isn't interested in hearing case law, just what led to the termination and is it valid for either granting or denying benefits. The hearing officer isn't there to judge whether the claimant's termination was legal or not and citing case law would be irrelevant.

 

[GonzoFL]

Sorry if I wasn't clear on the OK case law aspect,I agree,the appellant should not cite case law. But reviewing relevant cases can't hurt. Now the judge may not be be looking for case law concerning if you were legally terminated or not...but he/she will be looking at case law as a determining factor for granting or denying unemployment compensation benefits on appeal.

 

[Utopmk]

hen, each week you have been certifying for benefits as you were told to do at the beginning, though you have not been receiving any checks? Okay, good. Now....

The initial decision will have ONE reason on it that you were terminated. It will be, probably from what I can determine, that you voluntarily quit by your own choice. That they said that at that point you were in no danger of termination is great for your side.

The thing to remember is, pick your reason, pick your argument, and while in your appeal, stick to that one. Don't go chasing rabbits off into whether you were actually tardy at your company if you were sitting at your seat, walking in the door, in the can, whatever. We are not talking about tardiness here, except that you were threatened by your employer that you were to be fired, because of your tardiness.

The hearing will be formal, whether by phone or in person. If given a choice, I'd always go with "in person", since it lowers the chances your employer will actually show up. Since you aren't working anyway, you've got the time to go to the site. Since you are appealing, you will speak first. You will be sworn in, and the hearing will be recorded.

You will say that you were told you were about to be terminated. (Very important,you need to try to remember the exact phrases used, who said them and when) You were told that if you wrote a letter of resignation, you would be eligible for rehire, it would improve your reference, etc. Whatever motivational encouragement you were given. You were NOT given any opportunity to change the behavior they were threatening to fire you for, which was tardiness, though you did feel you had not really been tardy.

You did not want to quit your job, and would have done anything within your power to keep working if you had been allowed to do so. You feel that this situation is retaliation for a complaint against your supervisor that you gave to HR a few weeks ago. Before this time, you had had no disciplinary warnings or write ups and your job performance was not ever an issue.(If this is true)

Yes, the law does say you can quit your job for a good job related reason such as harrassment by a supervisor, I'd stay away from this. Remember, you did not quit your job. You were forced to resign by threat of termination.

Then the employer will speak. No matter what they say, how wrong they are, how much they lie, you do not make comments, roll your eyes, gasp, or in any way argue with them. You will be given an opportunity for rebuttal. Do not, I encourage you, pop off to them, call them an idiot or liar, or be disrespectful to the appeals officer conducting the hearing. Be polite and professional and sincere. Say you did your job to the best of your ability and reiterate that you did not want to leave.

Even if the employer does not show up for the hearing, you will be required to tell your story just as if they were there. It is totally possible that you will not win, even if they do not show up. If you were tardy, by the definition of tardy you have mentioned to us here, it would have been a more clear cut reason for termination, and since you probably did meet the definition of tardy, if you had received points for this before, they could probably have terminated you and your benefits would have been denied.

They actually did you a favor by asking you to do the resignation letter instead of terminating you for tardiness, since you can now say that you were encouraged to "resign in lieu of termination" due to having filed a complaint, were threatened with termination....once again, do not run off down the tardy trail, this is your weak area.

I actually do not think you should hire an attorney, as they would only be able to use the argument I have outlined for you above (if they were good and knew exactly which path to take) and your chance of winning....well, your situation is what it is. It will matter a great deal how well you can present it. It's worth a shot, anyhow.

Commentator, I appreciate this advice, and this is along the lines of what I was looking for in a response. The path outlined is the path I will go. Though, I've already submitted evidence that I'd probably be fired, since the company stated that I wasn't to be fired, and I was actually motivated to resign.

 

[commentator]

While it is okay to say that you were told you were going to be fired..and that you should sign this letter and resign instead...that's all you need to say about being fired. Keep off the tardiness issue all you can.

Your initial statement isn't binding. Just go forward with the issue of your being told your options were to resign or be fired. You didn't go to them and say, "Oh I was tardy today, so I guess you all will fire me now, won't you?" No, you were called in and they indicated to you that they were going to fire you, didn't they? As I've said, what you don't want is a discussion of whether you were actually tardy or not.

Just tell your story,stay on topic, one issue. You were given an ultimatum. You did NOT quit your job. Please do not be citing case law to the hearing officer. If there is anything a judge, an officer, ANYONE in this position hates, it is hearing a layman spout case law. Believe me, they not only have seen these circumstances before, they've probably seen them before this morning.

Which is why this forum is nice. People really do have fields of expertise, and once you know about something so totally and have heard things over and over again, sometimes, posters get a little short with their responses, but they really do know their stuff for the most part.

 

[Utopmk]

Thanks again for the advice. Tonight is the night of the appeal! It was already scheduled by phone for tonight when I started this thread! I will keep everyone updated on what happens.

 

[phase08]

When a UE appeal filed, the appellant has ample opportunity to submit supporting documents. The hearing officer has those documents in front of him/her. However, at the stage when a telephone conference is scheduled, it is rigidly controlled by the hearing officer. That is made clear at the beginning of the call. The appellant does not get to “tell his story”, s/he is directed to answer specific questions

 

[Utopmk]

Employer did not show up. I went by commentator's advice.

 

[Utopmk]

I would like to discuss what happened at my appeal.

Three documents were entered into evidence.

(1.)The original disqualification letter from unemployment.
(2.) My notice of appeal.
(3.) The paper booklet explaining my rights of the appeal.

The employer did not show up for the hearing at all. Testimony was taken from me only. I do not think I was cross examined by the Judge, but she did ask several probing questions.

I explained how I was basically forced to quit, and who told me that I could quit or get fired. I explained what happened that day...how I felt that I had no choice, and that I was given an ultimatum. She asked why I didn't talk to a higher level of supervisor (besides the direct supervisors I encountered that day), and I told her that he was not there on weekends. I then told her that I made attempts to call him on the next business day and left messages, and that he never returned my call. At the end she asked if there was anything I'd like to add, and I told her. "I feel like I was terminated by being forced to leave. If I would have been able to keep working, I would have. I felt pushed to leave"...or something very similar.

Basically, even with the employer not appearing, I was very nervous and intimidated. I think she realized this. I slipped up on a few dates, but was able to correct that information. (this is probably normal with the complexities of everything)

Also, I informed her that I was only late by the employers definition, but it could be found that I swiped my badge (for security) and was in the building 15 minutes early. She asked what time piece I was personally going by, and I told her: the clock on the wall. I informed her that I waited an unusually long time for the computer to load up, and asked a team leader what I should do about it, and was told there was nothing I could do, and that i would be fired. At that company, you are unable to log in until your user profile and all programs load.

Rather I won or lost, I will post the outcome of this hearing for educational purposes. Does anyone have any guesses of the possible outcome?

 

[commentator]

So far, so good! Glad you let us know how it went. Guess on the outcome? Aw, come on!

It sounds as though you were able to do what you set out to do. It is also easier to develop some rapport with the adjudicator if you are the only one there, so I'm sure your slips due to nervousness were forgivable. Everything was recorded, anyhow.

In response to Phase8 above, right, I guess I should have said, "Stick to your story." Some appeal processes involve only the adjudicator leading the process, asking specific questions. Those are mostly fact finding hearings.

Since the employer is not saying you were fired for lateness, and produced no documentation to that effect, (silly,silly employer, he might've coulda got you there!) rather that you voluntarily quit, and you maintain you were forced to quit or be terminated....and you managed to get your point across, I'd say you have a pretty good chance. Hope you are making your weekly certifications. You should hear pretty soon.

The next step, if the employer wants to take it or if you don't win is a Board of Review appeal. In this process, they do not have another in person hearing, they only look at the material presented in the hearing and the information submitted and determine if the law was followed. But I don't really think this is going to be an issue. I hope it works for you. Now, go find another better job! And do not be late, ever!

 

[phase08]

Employer did not show up. I went by commentator's advice.

So this was an in-person hearing? Sorry, I thought it was a telephone hearing. Anyway, yes, I'd be curious about the outcome. Good luck.

 

[GonzoFL]

The appellant does not get to “tell his story”, s/he is directed to answer specific questions:


Is the the way it is in Oklahoma? I was the appellant(in Florida) and after being sworn,the first thing the referee directed me to do was give my side of the story. The appeal was down via 3 way phone conversation.

 

[phase08]

The appellant does not get to “tell his story”, s/he is directed to answer specific questions:


Is the the way it is in Oklahoma? I was the appellant(in Florida) and after being sworn,the first thing the referee directed me to do was give my side of the story. The appeal was down via 3 way phone conversation.

I don’t know anything about Oklahoma nor did I ever say anything about Oklahoma. Ditto for Florida.

However, I did sit in the home of someone in another state (Ohio) who had a telephone hearing re: appeal for unemployment benefits. (It was on speakerphone.) There was no “story telling”. Specific questions were asked and the person answered. They had already submitted documentation several weeks prior to that telephone hearing. About 2 weeks after that telephone hearing, they received a decision. They won.

 

[Utopmk]

So far, so good! Glad you let us know how it went. Guess on the outcome? Aw, come on!

It sounds as though you were able to do what you set out to do. It is also easier to develop some rapport with the adjudicator if you are the only one there, so I'm sure your slips due to nervousness were forgivable. Everything was recorded, anyhow.

In response to Phase8 above, right, I guess I should have said, "Stick to your story." Some appeal processes involve only the adjudicator leading the process, asking specific questions. Those are mostly fact finding hearings.

Since the employer is not saying you were fired for lateness, and produced no documentation to that effect, (silly,silly employer, he might've coulda got you there!) rather that you voluntarily quit, and you maintain you were forced to quit or be terminated....and you managed to get your point across, I'd say you have a pretty good chance. Hope you are making your weekly certifications. You should hear pretty soon.

The next step, if the employer wants to take it or if you don't win is a Board of Review appeal. In this process, they do not have another in person hearing, they only look at the material presented in the hearing and the information submitted and determine if the law was followed. But I don't really think this is going to be an issue. I hope it works for you. Now, go find another better job! And do not be late, ever!

I have been filing weekly certifications. I am owed for about 6 weeks! I hope everything went ok, and my testimony holds credible. I did add additional information, and describe additional events that I felt would be important to my case. Though, the booklet says that only issues raised before the hearing will be considered, I'd like to think that this goes with the original issue! Again, regardless of the outcome, I appreciate the advice!

So this was an in-person hearing? Sorry, I thought it was a telephone hearing. Anyway, yes, I'd be curious about the outcome. Good luck.

This was a telephone hearing.

The appellant does not get to “tell his story”, s/he is directed to answer specific questions:


Is the the way it is in Oklahoma? I was the appellant(in Florida) and after being sworn,the first thing the referee directed me to do was give my side of the story. The appeal was down via 3 way phone conversation.

Yes she wanted me to describe my "account of what happened".

I don’t know anything about Oklahoma nor did I ever say anything about Oklahoma. Ditto for Florida.

However, I did sit in the home of someone in another state (Ohio) who had a telephone hearing re: appeal for unemployment benefits. (It was on speakerphone.) There was no “story telling”. Specific questions were asked and the person answered. They had already submitted documentation several weeks prior to that telephone hearing. About 2 weeks after that telephone hearing, they received a decision. They won.

Conduct of the Hearing

The Hearing Officer has the sole authority for the conduct of the hearing. In conducting the hearing, the Hearing Officer shall:

1. Explain the issues and the meanings of terms the parties do not understand;
2. Explain the order in which persons will testify, ask questions and give rebuttal;
3. Help parties in asking questions of other witnesses;
4. Question parties and witnesses to obtain necessary facts;
5. Determine if testimony and documents being offered should be received and considered;
6. Require parties to give proper background or foundation for secondary evidence, documents and opinion testimony; and
7. Take official or judicial notice of well-established matters of common knowledge, public records.

Additional information about Oklahoma Appeals Hearing Process can be accessed at: Unemployment Insurance Appeal Hearings and Decisions