Unemployment Hearing

[sjn02169]

What is the name of your state (only U.S. law)? Massachusetts

Last week I received my first check from the Massachusetts Department of Unemployment Assistance (DUA). This was after the DUA made two determinations: whether or not I was an employee, and whether or not I left voluntarily. My former employer claimed that I was an independent contractor, and that I quit. In both determinations, the DUA ruled in my favor that I was an employee and that I was terminated for reasons not involving willful misconduct.

This week I received an appeal notice. My former employer is challenging the DUA decision, and a hearing will be scheduled. I called the DUA to find out what is being challenged, and was told that it is the determination of whether or not I quit. If that is the case, can the employer use the hearing to also challenge the employee vs. IC determination, without having raised the issue in advance? I just want to ensure that I am adequately prepared. Thank you.What is the name of your state (only U.S. law)?

 

[commentator]

Your employer is appealing one part of a dual issue decision. He's probably pretty much accepted that you are an employee, he was not going to prevail in insisting you were an IC, because those regulations are pretty clearly spelled out, and you either is or is not. Not much to argue there, once the situation is looked at and the state has granted you unemployment status. If you had been determined to be an I.C. you wouldn't have even been able to set up a claim (at least using these wages.)

But then he certainly may go after the question of whether you quit or not. Either one of you could have appealed the decision, he had the right to ask for the appeal, even if he had no kind of good argument that you quit to begin with and has none now.

When the hearing comes be sure that you are prepared to present your story of exactly what happened when you were terminated, staying in the general outline of what you told the claims office at the beginning when you filed the claim.

 

[sjn02169]

Thanks!

When I filed my initial claim, I had only a Form 1099 to show my earnings, so DUA investigated. They called me a few weeks later, told me that I had been in fact an employee, and asked for my side of the story as to why I left. The employer said I quit. In reality, I was fired for not signing an agreement - an agreement stating I was an independent contractor! I received a certified letter from my employer stating that was the reason for my being terminated.

 

[commentator]

Okay, then they haven't even made the initial decison on your claim. There will be an initial decision made, either granting you benefits or denying them. And then if they want to, the employer can appeal the decision if you are approved, or you can appeal if you are denied. We'll have to wait till this is resolved, keep certifying for weeks as they are worked. But if they determined you were really an employee, instead of a contractor, as I said, there's not too much appeal for that.
And you were fired for refusal to sign that you were a contractor? Well, it sounds pretty good for your side, that's all I can say right now. Keep us updated.

 

[sjn02169]

Thanks again. Btw, just to be clear, I've already received two checks from DUA. My first one arrived the day after I told them side of the story.

I will let you know the outcome. My guess is that it will be a while before the hearing, given the backlog of cases.

 

[swalsh411]

Refusing to agree to something that is not true is not misconduct. If that is the only thing they have to say you quit I suspect you will prevail.

 

[sjn02169]

Here is an update on my case. The hearing is scheduled for this coming Friday, July 8. Per the hearing notice:

"The ISSUES to be heard are whether:

There is substantial and credible evidence to show that the claimant left work voluntarily with good cause attributable to the employer or its agent, or involuntarily for urgent, compelling and necessitous reasons, or by discharge for deliberate misconduct in willful disregard of the employing unit's interest, or for a knowing violation of a reasonable and uniformly enforced policy or rule, unless the violation was the result of the employee's incompetence."

Here are the facts that I plan to present at the hearing. Any feedback would be greatly appreciated...thank you!

I was part of [my former employer’s] sales team for one year, from April 2010 until April 2011.

During that time, my employer tried to get me to sign an agreement stating that I was an independent contractor. I refused, because I believed that my work, and the work of the other sales representatives, constituted employment.

The original agreement was presented in the summer of 2010, and a revised one was presented in early 2011. I told my employer, both verbally and in email communications, about the 3-prong test used under Massachusetts state law to determine whether or not someone is an independent contractor, and how I felt that my employer was not able to pass that test.

On April 1, I received an email** from my employer stating that my work relationship with his company would end on April 10 if I did not sign and return the agreement by then. I replied by email a couple of days later, once again pointing out to my employer that he was not meeting the requirements to pass the 3 prong test.

I continued working during the first week of April, visiting clients and placing orders.

Early on the week of April 10, I received a letter by certified mail from my employer stating that my relationship with the company had ended because the agreement was not signed and returned.

I applied for unemployment assistance. The Massachusetts Department of Unemployment Assistance conducted an investigation, and subsequently ruled that I had been an employee of the company.

** Here is the text of the email that my employer sent on April 1:

In late January 2011, [the company] distributed a revised Sales Representative Agreement to all its contractual Sales Representatives. In particular, we asked that all Sales Representatives sign and return a copy of the revised Agreement to [the company] by April 1, 2011. As you know, it has been our policy that all Sales Representatives operate under a written signed Agreement. Since it is now past April 1, 2011, and you have not signed and returned the revised Agreement to us, we can only assume that you do not wish to continue representing [the company] and its products. Therefore, please consider this letter as a formal reminder, pursuant to Section 8 of the Individual Salesperson Agreement, that your official business arrangement with [the company] will terminate effective April 10, 2011 if the signed Agreement is not returned to us.

 

[swalsh411]

Based upon the information provided here I would be very surprised if your former employer won the appeal.

 

[OHRoadwarrior]

If you really want to hit him good, let all the other sales reps know of the determination.

 

[commentator]

Just present this orally, not in writing, okay? State your case clearly and concisely and I think you'll find you have this one pretty well under control.
Tell them exactly what you've told us here, and listen carefully, be sure you answer all the hearing officer's questions. If you have an opportunity to ask questions to your former employer, ask him the three prong things "Was I under your supervision? Did I handle my own..." skewer him again with the thing that he was trying to pretend you were an independent contractor when you were not. Emphasize that although you were thoroughly within your rights to leave this job, and you would have had a good work related reason to quit, you did NOT quit the job, you continued to report and do the work, you just told him, repeatedly that you did not wish to say you were an independent contractor and refused to confirm that you were what you were not. It was his decision to stop you from working.

Good luck, let us know how this comes out.

 

[sjn02169]

I just received notification that my previous employer withdrew his appeal. My guess is he finally took someone's advise to stop digging himself deeper into a hole! Thanks for all the advice...all along I thought the hearing was just a colossal waste of time.