Do ALJ overturn at appeal?

[Abudswoman]

What is the name of your state? WI

I filed for unemployment but was denied. I have appealed the decision and received copies of the phone interview for both me and my employer. I started out working part time at a very flexible job. It even states flexiblity in the job detail. I eventually went to 'full time' status working 32 hours a week. I was off on Wednesday's. My boss stated that if I wanted to switch and have off a scheduled work day that I could work on my day off or through lunch hour, whatever. He was very flexible with me and the other employees. Until he wrote me up and put me on probation for tardiness (which I agree with) and for calling the office to report if I would be absent and not calling him at home. At that point, I corrected everything. I was at work before my start time and called him at home when my daughter came down with the flu. A few days later I was terminated due to being absent with my ill daughter. Anyway, I received the information that he had sent for the phone interview. I hadn't prepaired well for my own phone interview as I had never done this before and I believe that is one reason I was denied. He had made a list of days I was absent but never bothered to say that he was flexible or that I had worked other days. I found many discrepincies in the information that he gave for the interview. He didn't send them my time card, instead he wrote his own list (not showing days I worked), he had written down days that I was tardy that weren't even my scheduled work day (even though I worked). I found MANY discrepincies in this interview information. For instance, he told UI that I took vacation and went to a concert during the middle of my daughters illness. I did go to a concert and took vacation but NOT when my daughter was sick and I will have a witness for this and her school attendance report. Little lies like that are what he filled his phone interview with. It is long to get into what type of a person he is, but lets just say he will do ANYTHING he wants, inluding lie, to make things turn in his favor, in any situation. I have 2 questions:

If I can prove (which I can) that he has lied about different things in his phone interview, will this show that he is uncredable and help me?

If I loose with the ALJ, I will appeal again. I have been looking on the internet at the LIRC site and see many cases, however I don't see ANY for the ALJ cases. Is there a chance that they overturn or do they pretty much leave it as is?

Any advice? Thank you.

 

[Beth3]

Yes, initial determinations can be and sometimes are overturned at the hearing.

The ALJ will base his or her decision SOLELY on the basis of testimony and evidenced provided AT the hearing. So forget about proving that the employer lied when giving the initial statement. It's irrelevant and the ALJ will not take into account anything you or the employer told the UC Division prior to the hearing.

The benefit of knowing what the employer's initial statement was is that it let's you know what issues they will raise at the hearing and what you need to be prepared for. Just focus on your own testimony and any evidence you need to present and refuting the employer's testimony. You will have an opportunity to cross-examine any witness who testify for the employer at the hearing. Careful though - cross-examining witnesses is a tricky business and with rare exceptions, you are best off presenting your own case and leaving it at that. ALJ's are pretty good at deciding who's credible and who's slinging a bunch of baloney. Believe me, those guys have heard it all.

Do not go to the hearing with a list to present to the ALJ of all the lies the employer told them in their telephone statement. It won't be accepted and as I said, it's irrelevant. What you can do though is anticipate what the employer's representative(s) might testify to at the hearing and be prepared to respond with your own evidence to refute their allegations, as appropriate.

 

[Abudswoman]

Thank you Beth. When I read the last paragraph of your post I had to laugh. A lot of the references I was preparing for were the lies that he told the phone interviewer. Thank you for explaining that they would not use that interview information. I do, however, believe that the employer will bring the same information to the hearing that he supplied for the interview. So, I will approach each discrepancy as they come up at the hearing.
Thanks again for your reply!!

 

[Beth3]

You're welcome. Just remember that when the employer is testifying, you need to keep your lip buttoned, no matter what they say. You'll have your turn. If you start interrupting when someone else is testifying or the ALJ is asking questions, you'll get him or her annoyed. Not that that will influence his or her decision but in any courtroom, it's usually a good idea not to tick-off the judge.

Also remember that the standard evidentiary rules apply, which means first-hand information only. Anything you testify to as to what someone else said or did (who is not present) is hearsay. You can't present written statements from other employees to support your claims. They have to be present to testify in person.

 

[Abudswoman]

WOW!! Thanks so much for the advice. I appreciate it. I have never even filed for UC before so this is all so new to me. I do have witnesses that will be present. Also, lets say he testifies to whatever...and I don't agree with it. I should silently jot notes so that I can have my say about his testimony and dispute it? I can guarantee that I will not agree with his testimony as he is very inconsistant with his words and actions. That is the reason I had brought a witness with me to meet with him regarding my probation letter. He claims I violated the probation and I feel that I didn't. Anyway, I will get a chance to dispute his testimony with my evidence right?

Thanks again! This is such a help.

 

[Beth3]

Yes. You will have a chance to respond to the employer's testimony with your own version of the events, your own witnesses, and present any evidence you have - copies of relevant sections from the employee handbook, company policies, letters or memos from the employers, etc.

You don't have to be Perry Mason here. It's extremely rare (and usually completely unnecessary) for anyone to have an attorney representing them at a UC hearing. The ALJ knows that and will question both parties on all the relevant issues - the ALJ will figure out quickly what those are - and you will also have an opportunity before the hearing is over to make any statements about anything relevant the ALJ did not inquire about.

The ALJ will lead the proceedings, so just follow his or her lead. They will tell you when it's your turn to speak. But in the meantime, if the employer says you took the toner cartridge out of the copier and smoked the contents, just bite your lip. After the employer or any of their witnesses testifies, the ALJ will ask you if you have any questions for the witness. The answer to that 99% of the time is "no." There's absolutely no point getting into a "yes you did, no I didn't" debate with the employer. They have their version of what happened, you have yours. Only ask a question if there is very pertinent FACTUAL information to inquire about AND you know what the correct answer is or have evidence to refute their statement if they answer incorrectly.
Again, that will be rare. This is not your opportunity to present your case. The ALJ will typically have the employer testify first, then it will be your turn to state your case.

 

[Abudswoman]

Thank you so much Beth!! I appreciate all of your help and advice. I have a much better understanding. I'm also glad to know that I simply need to follow the ALJ's lead. I was a little nervous but feel much better now.

Thanks again!!