What is the name of your state (only U.S. law)? Vt. Had attorney represent a friend for unemployment. My friend was retaliated against for whistle blowing on an employee and resigned when the employer decided to change his job and transfer him without notice to a different job location to stop his complaints. His lawyer called it Constructive Discharge. The lawyer who helped him in the first appeal process and the employees attorney decided the only evidence needed at this appeal hearing was the transfer of his job and no need for bringing up any of the retaliation issues. His lawyer told him it was sufficient enough for him to win on "Constructive Discharge". Of course my friend thought his attorney knew what he was doing. Well, he lost. The judge at the unemployment hearing felt he quit, and driving 25 miles round trip because his job transferred him to a new site was insufficient for constructive discharge. So my friend appealed with the Unemployment review board, pro se. The Review Board would not allow any new evidence other than what was agreed upon at the last appeal. So he was denied again, reason: same reasons as first hearing. My friend feels he should of been allowed to bring up the retaliation and wants to appeal the Review Boards decision with the Supreme Court. Can he and how should he go about asking the Supreme Court to reverse the order of the Review Boards decision because they would not allow anything new which would "prove" his employer retaliated against him due to the sensitivity of complaints put in by him. Plus, they told him his current job was no longer an option and they are moving him to another job site to be re-trained there. So my question is: Can he bring up any new evidence with the Supreme Court to allow the whistle blower facts and to show his employer moved his job out of retaliation? The Review Board would not allow him to bring up any new evidence other than what was argued in first unemployment appeal and he feels he was misrepresented by his attorney and he also feels strongly the review board should of remanded it back to Admin. Judge for a new hearing due to these issues. Thank you so much, your advice is so appreciated. Faith
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Supreme Court PLEASE HELP
- Thread starter faithnlve
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startedone
Member
Answer is NO, he cannot argue further facts not in the record from the first hearing. That's the way it goes. Know the process before the hearing. I have a hearing next week in front of an administrative hearing officer..and have 289 questions written down for one witness ... I think I'm ready
commentator
Senior Member
No offense, but honestly, if I were conducting a hearing and a person started 289 questions, I'd shut that one down in a jiffy. Depending on what kind of hearing it is, the person conducting the hearing usually guides it and determines relevence, and is very conditioned to curtailing the amount of time spend on the issues.
I honestly think this post is too idiotic to even be a real post. Administrative hearings for the employment commission are nowhere near the Supreme Court, if the BOR doesn't accept it either, you COULD take it on to civil court, but your chances of winning are virtually non-existent. This person had no real attorney, and this all is just unbelievable to me.
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Um...I have used freeadvice.com for years. I have always always appreciated and valued many of the senior members whom have directed, helped and even criticized me. Yet, all in all there was always one person whom took the time to give me direction. And, yes I have posted many many times here and If you don't value the bloggers whom have supported and told others of this site to make it what it is today, then maybe I have been wrong.
Another note, It does go to the Supreme Court on the last appeal in Vermont. As for the Whistle Blowing, my friend confronted his manager about using company property for personal use. This is the third complaint he put in on this person. Since his manager and the supervisor he complained to are good friends, (they don't own the company), they transferred my friend to a different site location to get rid of him complaining any further. They even suspended him for a week before telling him on a Friday he was to start the following Monday at another building site 15 miles away. They told him he could no longer work here. He resigned due to the hostile treatment he was getting and being treated differently from other employees. He knew they moved him to just get rid of him.
As for his first unemployment hearing, he lost due to his attorney and opposing attorney decided only the transfer is necessary to decide unemployment claim. "Constructive discharge" would be the argument. The second appeal with the Review Board would not allow new information in, yet, allowed the opposing attorney argue even though the claimant claims whistle blowing protection, it no longer counts due to it would be considered new evidence. Oh well.
So, I was hoping someone could help in suggesting what argument we could use with the Supreme Court to get it remanded to new hearing so we can bring in the facts of the retaliation on my friend. Thanks.
Another note, It does go to the Supreme Court on the last appeal in Vermont. As for the Whistle Blowing, my friend confronted his manager about using company property for personal use. This is the third complaint he put in on this person. Since his manager and the supervisor he complained to are good friends, (they don't own the company), they transferred my friend to a different site location to get rid of him complaining any further. They even suspended him for a week before telling him on a Friday he was to start the following Monday at another building site 15 miles away. They told him he could no longer work here. He resigned due to the hostile treatment he was getting and being treated differently from other employees. He knew they moved him to just get rid of him.
As for his first unemployment hearing, he lost due to his attorney and opposing attorney decided only the transfer is necessary to decide unemployment claim. "Constructive discharge" would be the argument. The second appeal with the Review Board would not allow new information in, yet, allowed the opposing attorney argue even though the claimant claims whistle blowing protection, it no longer counts due to it would be considered new evidence. Oh well.
So, I was hoping someone could help in suggesting what argument we could use with the Supreme Court to get it remanded to new hearing so we can bring in the facts of the retaliation on my friend. Thanks.
commentator
Senior Member
Okay, I'll bite. How many times on these boards have you seen someone say, "I got a traffic citation and took it to traffic court and lost my case, when can I get it before the Supreme Court?"
There is no protection for "whistle blowers" in private industry situations like this one you have described. Whether or not the employee used that defense in his hearing wouldn't matter one tiny bit. The Board of Review can elect to admit new evidence if they want to, but they will only do so if it is going to make a significant difference in the argument. (Classic example is when someone produces previously unseen video of the incident) They refused to accept the new evidence because it was not going to make any difference at this point anyhow. He chose, or his attorney chose to argue it in the hearing as a constructive discharge based on the argument that he was being "forced to quit" because of the transfer. This was determined not to be the case. His unemployment insurance has now been denied twice. The attorney, who may or may not be to experienced in employment law (and all attorneys aren't) was doing just exactly the right thing to try to maintain that the employer had "forced a quit" (I prefer that term to "constructive discharge" but they're generally the same thing) What his alleged motive for trying to force the quit was isn't relevent in this situation.
From the evidence presented, it must have sounded, both times it has been heard so far, as though the employee had not exhausted all his alternatives, or the commute to the transfer site wasn't determined to be excessive when he quit the job, and thus was considered to have voluntarily quit. After reporting the wrongdoing to the supervisor, did he then report it to the higher office, the compay owner, did he make other efforts to be heard? They would have had the option of stopping his transfer or improving the treatment if they'd wanted to.
What difference would you think it would make in the unemployment hearing if he had said, "And the reason they were mad at me and the reason they wanted to get rid of me was because I had reported to them that some of their friends were stealing something from the company" ? Do you really believe that would cause them to say, "Oh, gee, in that case!!!!!!************** Whether or not your friend was "whistle blowing" (or trying to tattle on his co-workers) doesn't matter. If he'd been reporting violations of safety regs to OSHA it might have been a slightly different situation, but he wasn't.
Whistleblowing is a term sort of like "wrongful discharge." Because it does exist, and people are vaguely familiar with it, they think that they're right up there with the fearless when they report to their private employer that Joe CoWorker is smoking pot on the job, and they can't be fired, and they can't be mistreated if they've done that. They're dead wrong. Vermont is an "at-will" state. That means they can fire you at will, and you have the right to quit the job at will. Your friend exercised his right to quit, (because of his being transferred and the supposed way he was being treated) and it has been determined that he voluntarily left the job and is not eligible for unemployment benefits.
Your friend should definitely have been told this by his attorney. He has lost the appeal. There is the alternative if he went before a civil court, they might, one in a million, sometimes overturn the decision of the whole unemployment system, and then he might keep appealing, but let's face it. There is NO case here, has never been, and the person does not need a new hearing, there is NO possibility that there's going to be a different outcome, so the people who DO have the knowledge of the law, which is definitely not you, are not going to go back and demand that this person be approved for benefits, no matter what.
If you're such a wonderful friend, are you going to pay for his attorney fees and court costs, which are going to be far more than his whole unemployment insurance claim would be worth IF he did actually get approved to keep chasing this dead dog through the courts? No reputable attorney would take his case. You don't know more than his attorney that he had in the hearing. You are certainly wrong about how you think this appeal thing is going to go if you think the Supreme Court of this land is going to quit looking at the issues like Health Care reform and death penalty cases and start looking at your buddy's denial of unemployment benefits anytime in the next century based on your misconception about whistleblower protections.
The Supreme Court (and I am assuming you mean the big one, not just the state supreme court) even the state supreme court, if they actually DID ever ever consider taking the time to go into individual unemployment hearing decisions, (which I can assure you ain't going to happen, do you realize how many hundreds of thousands of these are held in each state every month?) does not take cases that have been determined to have no merit in lower courts, and I promise that is what happens if your friend were to try another appeal.
There is no protection for "whistle blowers" in private industry situations like this one you have described. Whether or not the employee used that defense in his hearing wouldn't matter one tiny bit. The Board of Review can elect to admit new evidence if they want to, but they will only do so if it is going to make a significant difference in the argument. (Classic example is when someone produces previously unseen video of the incident) They refused to accept the new evidence because it was not going to make any difference at this point anyhow. He chose, or his attorney chose to argue it in the hearing as a constructive discharge based on the argument that he was being "forced to quit" because of the transfer. This was determined not to be the case. His unemployment insurance has now been denied twice. The attorney, who may or may not be to experienced in employment law (and all attorneys aren't) was doing just exactly the right thing to try to maintain that the employer had "forced a quit" (I prefer that term to "constructive discharge" but they're generally the same thing) What his alleged motive for trying to force the quit was isn't relevent in this situation.
From the evidence presented, it must have sounded, both times it has been heard so far, as though the employee had not exhausted all his alternatives, or the commute to the transfer site wasn't determined to be excessive when he quit the job, and thus was considered to have voluntarily quit. After reporting the wrongdoing to the supervisor, did he then report it to the higher office, the compay owner, did he make other efforts to be heard? They would have had the option of stopping his transfer or improving the treatment if they'd wanted to.
What difference would you think it would make in the unemployment hearing if he had said, "And the reason they were mad at me and the reason they wanted to get rid of me was because I had reported to them that some of their friends were stealing something from the company" ? Do you really believe that would cause them to say, "Oh, gee, in that case!!!!!!************** Whether or not your friend was "whistle blowing" (or trying to tattle on his co-workers) doesn't matter. If he'd been reporting violations of safety regs to OSHA it might have been a slightly different situation, but he wasn't.
Whistleblowing is a term sort of like "wrongful discharge." Because it does exist, and people are vaguely familiar with it, they think that they're right up there with the fearless when they report to their private employer that Joe CoWorker is smoking pot on the job, and they can't be fired, and they can't be mistreated if they've done that. They're dead wrong. Vermont is an "at-will" state. That means they can fire you at will, and you have the right to quit the job at will. Your friend exercised his right to quit, (because of his being transferred and the supposed way he was being treated) and it has been determined that he voluntarily left the job and is not eligible for unemployment benefits.
Your friend should definitely have been told this by his attorney. He has lost the appeal. There is the alternative if he went before a civil court, they might, one in a million, sometimes overturn the decision of the whole unemployment system, and then he might keep appealing, but let's face it. There is NO case here, has never been, and the person does not need a new hearing, there is NO possibility that there's going to be a different outcome, so the people who DO have the knowledge of the law, which is definitely not you, are not going to go back and demand that this person be approved for benefits, no matter what.
If you're such a wonderful friend, are you going to pay for his attorney fees and court costs, which are going to be far more than his whole unemployment insurance claim would be worth IF he did actually get approved to keep chasing this dead dog through the courts? No reputable attorney would take his case. You don't know more than his attorney that he had in the hearing. You are certainly wrong about how you think this appeal thing is going to go if you think the Supreme Court of this land is going to quit looking at the issues like Health Care reform and death penalty cases and start looking at your buddy's denial of unemployment benefits anytime in the next century based on your misconception about whistleblower protections.
The Supreme Court (and I am assuming you mean the big one, not just the state supreme court) even the state supreme court, if they actually DID ever ever consider taking the time to go into individual unemployment hearing decisions, (which I can assure you ain't going to happen, do you realize how many hundreds of thousands of these are held in each state every month?) does not take cases that have been determined to have no merit in lower courts, and I promise that is what happens if your friend were to try another appeal.
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Thank you for your response. I do appreciate that you took the bite. 
Reading what you wrote does make sense. I was thinking he could pursue it through appeal by showing the proof he has of them moving him to another job site to shut him up. But, if what you say is true, then it would not be worth pursuing. Just so sad. The other things I did leave out was, the day after he complained these things happened....The manager had him always move to back of line of others (I know weird), allowed others to go home for lunch not him, accused him of falsifying his time sheets (made up lie) suspended him during that week no pay, put him back to work saying everything was ok, suspended him the next day no given reason, other co-workers "ordered" not to talk at all to him, given the crap work all of a sudden, then, gave him a letter removing him from his job of 8+ years to new site to be re-trained for position at new site. They told him his job at this site of 8+ years is no longer an option.
So, I just want you to understand why this appeal was important to him. I really do appreciate and value your expertise in all this. Thank you again for your time and help. Maybe you suggestion of small claims is the way to go...but...do they do these kind of cases? thanks so much for the bite..... Faith
Reading what you wrote does make sense. I was thinking he could pursue it through appeal by showing the proof he has of them moving him to another job site to shut him up. But, if what you say is true, then it would not be worth pursuing. Just so sad. The other things I did leave out was, the day after he complained these things happened....The manager had him always move to back of line of others (I know weird), allowed others to go home for lunch not him, accused him of falsifying his time sheets (made up lie) suspended him during that week no pay, put him back to work saying everything was ok, suspended him the next day no given reason, other co-workers "ordered" not to talk at all to him, given the crap work all of a sudden, then, gave him a letter removing him from his job of 8+ years to new site to be re-trained for position at new site. They told him his job at this site of 8+ years is no longer an option. So, I just want you to understand why this appeal was important to him. I really do appreciate and value your expertise in all this. Thank you again for your time and help. Maybe you suggestion of small claims is the way to go...but...do they do these kind of cases? thanks so much for the bite..... Faith
eerelations
Senior Member
Small claims court for what? Denied UI benefits? Small claims court isn't going to give him that. No way, period.
OP, I know you've been hanging around these forums for years and years - and that's OK, I've been hanging around here for years and years too. But I must admit I'm somewhat appalled that in all those years you haven't managed to learn the little bit needed to know that what your friend did is not in the legal sense "whistleblowing."
OP, I know you've been hanging around these forums for years and years - and that's OK, I've been hanging around here for years and years too.
But I must admit I'm somewhat appalled that in all those years you haven't managed to learn the little bit needed to know that what your friend did is not in the legal sense "whistleblowing."commentator
Senior Member
OKay, I accept that you were trying to help. But really, you're not helping this person by telling him yes, you were done wrong, and we're just going to go take this on to the Suuupppreme Court! This person made their big mistake by quitting the job. It is possible that they could have changed the way they went about it slightly and done a few more things before quitting and gotten his unemployment benefits approved, but it is far too late for that at this point.
If he had kept working there, doing his best, and they had finally elected to fire him, he'd have had a much better chance of approval. When the person quits, the burden of proof is on him that he had a very good job related reason to quit, and that he had exhausted all reasonable means of resolving the issue before he quit. If the employer fires someone, the burden of proof is on the employer to show that he had a very good job related reason to fire the person, and usually that the person has been given the oppotunity to change his behavior and keep the job before he has been fired. But many people go with their pride, say "I don't have to take this!" and walk off.
We'd have been able to coach the person a little if he'd come on here and asked before he acted. Really, the employer can legally treat their employees pretty awful, there are no labor laws that prohibit this. I hate that he spent the money on an attorney and didn't get approved, but even though he may FEEL that it should be a certain way, or that if he'd had a different attorney, it would have been a different outcome, I suspect that's not the real case. Encourage him in his job search, and hopefully he'll be able to get something else and move on soon. Not being able to move on, dwelling on how badly he's been treated would be the worst thing that can happen here.
Incidentally, in all state unemployment systems, the next step when you are denied by the board of review is to move into CIVIL court, not small claims court, and no you cannot take an unemployment insurance case into small claims court. I didn't say that at all. In one in a million cases, something that has been denied three times in unemployment insurance hearings will be overtuned in civil court, but that's about as rare as a flying dodo bird. The legal people in the unemployment system know a lot more about unemployment law than anyone in the regular court system, and if they've said it doesn't hunt, usually the proverbial dog doesn't hunt.
If he had kept working there, doing his best, and they had finally elected to fire him, he'd have had a much better chance of approval. When the person quits, the burden of proof is on him that he had a very good job related reason to quit, and that he had exhausted all reasonable means of resolving the issue before he quit. If the employer fires someone, the burden of proof is on the employer to show that he had a very good job related reason to fire the person, and usually that the person has been given the oppotunity to change his behavior and keep the job before he has been fired. But many people go with their pride, say "I don't have to take this!" and walk off.
We'd have been able to coach the person a little if he'd come on here and asked before he acted. Really, the employer can legally treat their employees pretty awful, there are no labor laws that prohibit this. I hate that he spent the money on an attorney and didn't get approved, but even though he may FEEL that it should be a certain way, or that if he'd had a different attorney, it would have been a different outcome, I suspect that's not the real case. Encourage him in his job search, and hopefully he'll be able to get something else and move on soon. Not being able to move on, dwelling on how badly he's been treated would be the worst thing that can happen here.
Incidentally, in all state unemployment systems, the next step when you are denied by the board of review is to move into CIVIL court, not small claims court, and no you cannot take an unemployment insurance case into small claims court. I didn't say that at all. In one in a million cases, something that has been denied three times in unemployment insurance hearings will be overtuned in civil court, but that's about as rare as a flying dodo bird. The legal people in the unemployment system know a lot more about unemployment law than anyone in the regular court system, and if they've said it doesn't hunt, usually the proverbial dog doesn't hunt.
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I did explain what your advice was. And, I agree it is not worth even trying to go any further with this. It's hard when others get mistreated or you see how it affects their lives. Your advice is good sound advice and I have a better understanding of not pursuing this. Thank you for taking the time to answer. I still love this site, no matter what others think of me. Bye, Faith
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