Denied unemplment and filing an appeal...

New York State: I was denied unemployemt on the basis of misconduct. What do i need to prove. Is there some general measurement about acting in a way that any reasonable person would believe would not be misconduct or soemthing? Here are the details.

My boss and i were having a relationship, he ended it "no more relationship" I called a friend. 45 mins after the initial "no more relationship" he told me i was fired (aka, he fired me) and claimed to HR it was because i was on the phone, being insubbordinate and unprofessional. I filed for unemplyt.

WOrkers comp. sent me a letter that i was denied b/c: As per my handbook, it says no phones and i was on the phone".

There are 3 seperate locations. I worked at the one that this guy (D) manages, but i have worked there for one year and this manager, (the one i was having a relationship with, the one who fired me, and the highest ranking manager), permitted us to use our cell phones. He uses his, everyone uses theirs in front of him, for a full year no one has ever been reprimanded for doing so, told not to do so, i've never even heard it mentioned - under any circumstances. He even approached me during the phone call and asked me to lower my voice. I did so immediately.

The day after i was fired, i went back to HR and explained what really happened revolving around his firing me. HR claims that it was *she* who fired me, b/c after D. said "you're fired, get your things and get out" he brought me over to HR, (btw, AFTER telling me, that he over-reacted and he was going to set it straight, this guy is a complete a-hole), brings me over there, meets w/ her in private, she asks me if what he said was true, was i on the phone, i said yes, they met in private again. she said ok, for not following company policy and for being insubordinate, we no longer need your services, and had me sign a piece of paper.

I want to appeal, what do i need to state/prove in order for me to win? If i prove that we were always permitted to use cell phones, is that good/fair enough? B/c if we were always permitted, and no one ever asked not to, then he fires me for it, didn't i have no reason to believe this would be a problem? esp after i followed his orders re: my using my phone that day. I have never recieved a verbal or written warning for *any* misconduct on the job, (i have rec'd letters of praise from clients, i did a good job for 1 year there, and 6 months at their other location.). What to do? thank you.

btw, the owner is totally pissed off, while the owner is never present at our location, he owns them, after i was fired, um..i told him i had sex w/ D. in D's office. And D is his Golden Boy, (gets away w/ alot). Soooo...it might be a little personal for him. i can see them fighting this.

(also, i did write in the boxes of the online unemplyt application that: i rec'd no verbal or written warning. others have done the same and never been punished or repremanded. he fired me after ending our relationship. i had no reason to believe my job was in jeapordy when he fired me.).

There is no possible way anyone here can tell you whether or not you will win the appeal if you can show that you were permitted the use of cell phones. Only the state unemployment commission knows if that will be "enough".

All you can do is present your case to the best of your ability. There are no guarantees in life, and there are certainly no guarantees in unemployment.

cbg said:

There is no possible way anyone here can tell you whether or not you will win the appeal if you can show that you were permitted the use of cell phones. Only the state unemployment commission knows if that will be "enough".

All you can do is present your case to the best of your ability. There are no guarantees in life, and there are certainly no guarantees in unemployment.

Click to expand...

Well of course. Any advice would be appreciated.

You already got the advice, The advice is

All you can do is present your case to the best of your ability.

Click to expand...

pattytx said:

You already got the advice, The advice is

Click to expand...

that's the case in any case. Not sure where i went wrong here, maybe i stated my original question strangely.

What i was trying to say was, in this case, what is it that i'm looking to prove that the state would find relavent in a case like this. would it be to generally only look to prove that the activity in question was permitted? or should i look to prove there was a relationship, and that it ended that day, in order to show motive. What about using all the information, sort of fleshing out the whole story of what happened? i can get a former manager as witness to the permittedness of cell phone use, but not anyone for a relationship witness. (well, i do have a witness that i called a few mins after my boss got it on with me and told what happened, this is one year ago, lol, i so was shocked, it was my 3rd day on the job. is this an 'excited utterance' witness? is that something that is unlikely to be accepted in a hearing of this kind? I also have anyone who knows me having been told by me periodically that we were still involved, any good?

Since my unmplyt was denied for cell use as per my letter from NYSBOL, can my job still bring into the hearing other reasons they gave to me that day for my being fired? like the: "Insubordination"? In which case, maybe i don't understand what insubordinate is, b/c i did what he told me to.

And they're not allowed to bring just *anything* in regards to my employment there, like all the sudden say: yeah, well she was late alot", right? b/c then i'd have to all the sudden come up w/ proof for that, so doesn't seem like it would be to fair.

I was suprised that the answers i wrote in my online unmplt application didn't seem to help me. Are they points i should still bring in to focus? (the no verbal/no written, no punishment of anyone else, no reason to believe my job was in jeapordy). Are these general seen as important and/or relevant?

I have a screen shot of a message board i posted on the day i got fired. on it i talk (write) to some girls saying right after he calls off the relationship at 12:55-1:03: things like: "i just got hurt by the friend with benefits", etc, etc. He fires me at 1:30, might be tricky to bring this in, whattya think? On it i even mention the same words he told HR that i said to him (i write that i asked for attention, he told HR that i asked for attention and she kept asking him to explain and he kinda kept trying to get around it, she kept saying she didn't understand). So, that would be very telling. i just thought of that. But i know msg boards are editable. But the responses from people would be very hard to edit, so it might be something they would still consider reading?

thanks
(i do work now btw, i am temping, but there are often times where there is not work all 5 days a week)


ahhh: Unemployment insurance provides workers, whose jobs have been terminated through no fault of their own.

just a little update, My hearing is on tuesday, i got a probono lawyer, a young law graduate, and so far, i've gotten my file from the labor office and read what the job is saying about me. trying not to take it personal. but anyway, . i feel pretty good about it. the hardest part for me is going to be making a poker face since i am still fairly affected. but i think i'm ok. Lawyer said don't even look at them, just stare at the judge.

we're gonna go w/ that he has always allowed us to be on the phone, and that we don't think being on the phone, although against policy handbook, is not enough to deny me benefits. and we will also bring in that there was an argument btwn us about a relationship. so here goes.

I just have a question for you - how long did it take for them to deny the claim? My friend has been waiting to hear from them for 7 weeks now and her claim says "still pending"...

Just got back. IT WENT SO WELL! Since i am indeed right in all of this, the HR director came in and in all the accounts she had from herself and my former boss, she had nothing to say, and of what she did, most of it was wrong, the craziest timelines ever, infact, and shocking to me, she had so much BS in there i could not believe it. She said my boss said to me that day, 3 different times, if you do that you're fired. Never. happened. the judge was getting very irritated at her for not being able to just tell the story from start to finish. she really had no idea. and my boss, lover boy who fired me, has moved to cali, so he emailed in a statement which had a lot of bologna in it, stuff that confirmed things that i said and yet directly conflicted with HR's account that she said she rec'd straight from him. and new b/s that conflicts also with his original statement.

when it was my turn, i answered everything really well, and calmly and very obviously true. he ended it btwn us. including the fact that i took some deep breaths and counted to 10 in a spa room (big deal), and got on my cell and tried to calm down by talking to someone b/f i went back to work with him (and my boss allowed cell phones) And the HR director was trying to say that other than talking on my cell, i "was extremely innapropriate". the judge had to ask her what was she talking about several times, b/c she kept just saying i was "innapropriate" but not what i had done. he said "inapproprate is a conclusion, please, what are you talking about".

anyway, it went really well, at the end they had absolutely nothing, they had that i gave my boss a dirty look, the judge said, "did you?" i said "i may have." My advocate (a law intern) "a look in our opinion does not rise to the level of misconduct worth of denying her benefits", etc.

i think i will probably win. i find out by mail in 2-3 weeks . thanks for listening. (and if i dont', i'm appealing).

mycarlb said:

I just have a question for you - how long did it take for them to deny the claim? My friend has been waiting to hear from them for 7 weeks now and her claim says "still pending"...

Click to expand...

hey there. ummm. let me check....

it looks as if i applied on 8/1,
rec'd my denial letter 8/26,
mailed off my request for a hearing 9/13,
on october 5th i received a hearing date of 10/17

call them. i did while mine was in limbo, and they were very helpful. they said my claim was just put on to an investigator that day. if you call they can definitely tell you something and will check on it for you since it's been so long.

neveragain77 said:

Well of course. Any advice would be appreciated.

Click to expand...

Advice? Here it is......

DON'T DIP YOUR PEN IN THE COMPANY INKWELL

CO19 said:

Advice? Here it is......

DON'T DIP YOUR PEN IN THE COMPANY INKWELL

Click to expand...

that advice is about a year and a half late. thanks.

I Won!!!

OMG I WON! I CANNOT BELIEVE HOW FAST THEY SENT THIS BACK! :O. The judge must have just zipped this out just because he was so appalled at my employers behaviour. omg, !! this is some of what he wrote, this is nuts. i saw the letter in the mail, i thought, what could they possibly be sending me so soon? a thank you for coming letter? . but i guess since i live downtown too? wow. this is awesome. this..honestly, i think the judge must have really wanted to get this decision back to me really fast. check this out...

there is a written decision by him, everythign he wrote says they
are $#@$%s:

under "FINDINGS OF FACT" (FACT!) ....."the manager of the employer
told the claimant that their personal relationship had ended. the
claimant was upset by what the manager had told her and she
telephoned a friend for emotional support. While she was speaking
to her friend on her cell phone, the manager waved a set of keys in
front of her and the claimant looked at him. The manager felt she
had given him a 'dirty look' and in response the manager told the
claimant she was fired" ....

(the keys btw, are keys that open lockers, and a client was locked out of hers, he wanted me to let her in. also, the manager denied there was ever a relationship.)

it goes on to state that the employer (HR) believed him, believed that i was insubordinate and that i refused to assist him, "and because of that belief terminated the claimant"

lol

then there is: OPINION

basically, that they are full of bull.

"The credible evidence establishes that the claimant was not
insubordinate and did not refuse to assist..." ....

"The employer submitted an email from the manager indicating that
on july 21st he had told her if she did not get off her cell phone she
would be fired. it is evident that the employer has given two
significantly different and contradicatory reasons and versions of
the incedent....." etc...

DECISION: initial determination overruled.

the claimant is allowed benefits w/ respect to the issues decided herein.

wow. this feels really good. i can't believe how fast this came back, the judge was so spot on too, in everything he said. i love everything he wrote. and after my boss denied everything to HR and the owner, they are going to see in black and white, that the judge said he's full of it. .

thanks for reading, eee, i'm very excited, happy.

Congratulations!!! I am so happy for you!!! I cannot wait to give this info to my friend because she also has a case pending... she just had a phone interview with someone and she faxed her evidence supporting her claim of being fired without warning, and her employer only had 48 hours to rebutt... as of close of business yesterday (the end of their 48 hour time limit) the man called her and said he hadn't received any info and was trying to "give them a little time" but would be making his decision in a couple days... I think it looks good for her... They probably sh*& their pants when they realized she had a copy of their policy she and they had signed upon her hire... LOL... I will let you know as soon as I find out anything from her if she won or not... her's wasn't denied yet... they just needed more facts to base their decision... he told her she would either get a check, or a letter very soon... Keep your finger's crossed... she needs a break here too...

It goes to show everyone out there... just because the employer says you don't qualify... you need to exhaust every option before giving up. My friend said the man told her that just because an employer said something is "gross misconduct" --- they still need to prove it. And firing without warning has to show good cause, ie---stealing, fraternization, drug use, etc... otherwise the employer should give an employee a chance to correct the mistake, or fire them, and accept the unemployment...

Again... congrats on winning...

I do hope you both realize that being granted unemployment benefits does NOT mean you were wrongfully terminated under the law?