NY Unemployment Determination Policy

[Geyser12]

That's a whole lot of if's and presumptions on your part.

I agree. *******

 

[commentator]

So the burden of proof for misconduct does not fall on the employer?
One thing I can prove is he is a liar.

Great, go to your appeals hearing, and make your case. Yes, the burden of proof that they had a valid misconduct reason to terminate you does go to the employer. BUT what I am saying is, once the initial decision is made, there is NO POINT in your camping there and trying to show it was the wrong decision.

Your task now is to move on to your appeals hearing, and make sure you present your case in such a way that your initial decision is overturned and you are approved for benefits. You will be back paid for any week you have certified for at this point.

I would suggest you come back and let us counsel you some before you go in with all guns blazing to your appeals hearing. The hearings are conducted in a certain way, and in a certain order, and they will look at things in a very distinct way. You must be sure you can present in a way that will make it likely your presentation will be more believable.

Above all forget about writing letters. It is a hearing, not a writing, and they absolutely do not want to get your case condensed into some big legalese bologny you've concocted at home. You'll speak, and present your case, and the employer can do the same. You will present your phone records if you want to, your letters, if you want to, and they'll be able to do the same. You'll answer questions from the hearing officer and/or the other party. You can ask them questions.

 

[Geyser12]

Can the letters, okay? YES, that is why I asked here prior to sending.

First of all, the adjudicator, who is not your "case worker" but is an officer of the unemployment system who will be making your first decision, is supposed to collect the evidence. She has two weeks, ideally. They are supposed to render an initial decision based on the evidence and statements from both parties within about two weeks. She has no personal relationship with you, and does not in any way have to respond to any inquiries you make to her personally. Your threats to file a grievance against her with the Department of labor are merely silly. This filing and approval and appeal process has been cut and dried pretty much since its inception in the '30's, and you're not going to change it because you don't understand how it works.



You are writing her personally, demanding that she call you back and let you argue with the information she received from your employer before she renders her initial decision. But too bad, she has already rendered it. She did not HAVE to call you back. She went with the "most believable" of the two parties. I don't know why, and it's no longer her problem. Your only recourse is to go to appeals, and try to show the appeals referee that you were NOT terminated for absenteeism, as your employer indicated, but that you actually, what? Didn't show up for those days for another reason? Were actually there on those days? Whatever it is you are going to use to argue that you did not know about the policy, did not quit by not showing up those days, whatever, you are really really really barking up the wrong tree if you think you need to rabbit trail off into whether the adjudicator who did your initial decision did it right. Trust me, forget about your initial determination. Forget this lady, forget writing her a letter, or filing a grievance against her. It won't amount to anything, and will seriously affect your chances of being approved. Not because you've threatened her or made an issue or something, but because you're not focusing on the important part of this situation.

Perfect, less work for me.

What do you mean it's updated nightly, and what do you think this would mean?
November 11th it was determined No unemployment would be paid. Perhaps it is still in pending status so I can continue to claim weekly.

I am assuming, from what you say, that you have been denied initially, and you have filed an appeal as directed in the letter. You should, very shortly receive information about your appeal hearing date.
Wonderful

At this point, you will be discussing the situation of your firing with someone entirely new.
Does that mean that all the evidence obtained initially is no longer pertinent?Forget the adjudicator who made your initial decision. Even if you had been approved in the initial decision, your employer could very well have filed and you'd have the same result, you'd be arguing your case before a completely different person in the appeals tribunal. The original adjudicator has the job of contacting both of you. They have the option of contacting either or both of you again to obtain the information they need to make the initial decision. They are under NO obligation to contact you a certain number of times, or allow you to argue with them regarding what they received from the other party. IF THEY WANT TO, they could even call both of you in to have what is called a fact finding hearing, where both parties present evidence. But once they've collected evidence from both parties, and made a decision, forget trying to argue with them any further about the issues. This happens prior to a hearing? Is this only to collect additional evidence for the hearing?


From the point of the initial appeal forward, your appeal, your whole claim is transferred to the appeals tribunal. In this hearing, you are going to make your case. The case will start again, as if it had never been adjudicated the first time.
I am counting on using the initial letter from my employer that I resigned, does this mean I will not have access to it? According to my notes in the initial letter I think my employer admit to speaking with me about my absence. [You will present your side of the situation, your employer will present their side.


Get busy establishing exactly what you're going to be saying in the hearing. That's the only appeal or complaint you have within the unemployment system.

Thank you this was most valuable.
How do I go about getting a subpoena for a witness or documents?
Should I have an attorney with me at the hearing? I have read through the statutes and have done much preparing.

Based on what I am reading, is sounds like an appeal court will not care much that my employer initially lied that I resigned, is that true? I know if I get to question him I will expose him for the liar he is, will I get to question him?

 

[Geyser12]

I would suggest you come back and let us counsel you some before you go in with all guns blazing to your appeals hearing. The hearings are conducted in a certain way, and in a certain order, and they will look at things in a very distinct way. You must be sure you can present in a way that will make it likely your presentation will be more believable .

I absolutely will!....as I get my ducks in order and my evidence question lined up I will be back for input...thank you!

Above all forget about writing letters. It is a hearing, not a writing, and they absolutely do not want to get your case condensed into some big legalese bologny you've concocted at home. You'll speak, and present your case, and the employer can do the same. You will present your phone records if you want to, your letters, if you want to, and they'll be able to do the same. You'll answer questions from the hearing officer and/or the other party. You can ask them questions.

Already forgotten....will I get to question my employer? Can I take him into a line of questioning outside the incident in question? I believe I was terminated for voicing displeasure with indecent behavior.

I have a bunch of things to run by you all....I may not appear it now, but I've been through days of testifying in family court and am very good at thinking before I speak, being respectful and making eye contact.

Thanks again everyone!

 

[cbg]

I can answer one question, and this is something I learned from Commentator. You can't do better than to listen to her.

No, they aren't going to care that the employer lied. They operate on the assumption that one or both parties may be lying. "Exposing" him is not the object here.

 

[commentator]

The hearing is very cut and dried. It is an administrative hearing, NOT a court case conducted like a court case. This is NOT a court of law. You are not Perry Mason. You can, if you wish, have an attorney to represent you. But the hearings are set up to be "user friendly" enough that the person can represent himself successfully unless he has some sort of communication problem. IN my experience, I have not found that most attorneys do a lot better job than an individual, unless the person is somewhat limited.

Both parties will be sworn in. The appeals officer, whatever they are called, will explain the process. LISTEN CAREFULLY. I am leery of those who say they've done a lot of research and yet are still pretty vague. You will not be allowed to present things that are not relevant, and you will not be allowed to object or intervene or cross examine the other party. Your assumptions could be dead wrong, as far as your research goes. Tell us what you are planning to do and maybe we can help.

You, as the appealing party, will probably be asked to present first. What they want to know is exactly the questions they asked you when you filed the claim. What happened, exactly, the last day you worked for this company. Why were you told you were no longer working for them? What did your letter of termination, if you have one say? When you talk about not having access to it, does this mean you gave the unemployment office your only copy? If so, it is attached to the material they will have in the appeals hearing.

I'm making a ball park guess here that something happened as in, you called your boss and told him you were going to be out for some reason two days, he said, that's okay, go on and take the next day too, and then you received a letter of termination saying you were out without contacting them for those three days, so you were fired? Is this the fact?

If so, you would probably want to show those phone records that show you making contact with them on the date you say you called in. Who are you wanting to subpoena? It can be done, you will need to contact the appeals tribunal where you filed your appeal and ask them what the process is if you really think you need to. But I am curious. Who do you want to subpoena, and why? It's a lot of time and trouble to go to if it won't really help your case substantially. Your opinion of relevance and your appeals officer's may be different.

You want to be succinct, professional, and factual. Present yourself clearly, and concisely. Then your employer will have the opportunity to present their evidence for whatever the reason is that they say they terminated you. During this presentation, you will NOT be allowed to jump up and shout "Objection!" or "You liar!" or anything of this sort.

And regarding your question, no your employer's truthfulness is not an issue. This is not a court of law. This is an administrative hearing. There is the assumption that either or both of the parties will probably be lying. They go with which one is most believable. If there is hard evidence, that makes you more believable, doesn't it? But probably at the end of most hearings, somebody has lied. There is no process for pressing perjury charges or suing someone for lying in a hearing.

Misconduct is defined as conduct which the employee had control over, and knew would likely lead to termination, but chose to do anyway. Whether it is in the company handbook or not, a 'no call no show absence' is generally considered a valid reason to terminate. It may come down to whether or not your employer told you, or you had reason to believe that your absence would lead to your termination. And it may be a "he sez/I sez" standoff. Once again, most believable of the two parties.

 

[swalsh411]

It is not at all uncommon that, for the initial decision, whatever the employer said happened is taken at face value with no requirement for proof. I've seen it happen time and time again. You can rage against the machine all you want but that's just how it is. At the appeal, they will be required to actually show proof of this alleged misconduct. Typically, this would be written reprimands signed by the employee that document an ongoing behavior problem. Unless it's something egregious like stealing, fighting, or showing up to work drunk, a single instance of bad behavior or no-call-no-show is not enough to warrant misconduct rising to the level of disqualification. Unless your employer can show good evidence of continued absences, tardy issues, or not calling in, I think your chances are pretty good.

 

[Geyser12]

What did your letter of termination, if you have one say? When you talk about not having access to it, does this mean you gave the unemployment office your only copy? If so, it is attached to the material they will have in the appeals hearing.

Dear {my name},
Although we appreciate your time here, this notice serves as termination of your employment with the company effective immediately.
Sincerely,
Employer
I don’t have access to the letter my employer sent to the Department of Labor stating I resigned. Can I get a copy of the case file prior to the hearing so I can be prepared? Can I get the notes taken? How would I do that?

I'm making a ball park guess here that something happened as in, you called your boss and told him you were going to be out for some reason two days, he said, that's okay, go on and take the next day too, and then you received a letter of termination saying you were out without contacting them for those three days, so you were fired? Is this the fact?

Almost, the letter of termination did not state why I was fired. I pasted it above.

Who are you wanting to subpoena? It can be done, you will need to contact the appeals tribunal where you filed your appeal and ask them what the process is if you really think you need to. But I am curious. Who do you want to subpoena, and why? It's a lot of time and trouble to go to if it won't really help your case substantially. Your opinion of relevance and your appeals officer's may be different.

This may not be good enough reason,but I want to subpoena the office administror. She can verify, no set of procedures are presented to new employees, she can verify I never showed up even 1 minute late or had unannounced absent during my entire 51 weeks, she can also verify that no disciplinary accusation verbal or written occurred. I am extremely concerned they will continue to lie and produce false documents stating this was common behavior.

And regarding your question, no your employer's truthfulness is not an issue. This is not a court of law. This is an administrative hearing. There is the assumption that either or both of the parties will probably be lying. They go with which one is most believable. If there is hard evidence, that makes you more believable, doesn't it?

Somehow this sounds contradictory to me, first you state, “your employer's truthfulness is not an issue” and then you state, “. They go with which one is most believable”. I must be missing something, to me the fact that he lied and I can prove it makes him less believable, is that not correct? My phone records also prove he lied because the determination letter states he claims “I did not call in” on those days.

Misconduct is defined as conduct which the employee had control over, and knew would likely lead to termination, but chose to do anyway. Whether it is in the company handbook or not, a 'no call no show absence' is generally considered a valid reason to terminate. It may come down to whether or not your employer told you, or you had reason to believe that your absence would lead to your termination. And it may be a "he sez/I sez" standoff. Once again, most believable of the two parties.

Additional notes:
My absence did not cause any damage or loss to the company. I am a data developer, so it is not like phones calls weren’t answered, orders were lost or not fulfilled due to my absence.

Now, I really didn’t want to bring this up, but prior to this I never would have thought I could be terminated for not reporting 3 days. The owners son has far (more than 3 times) not shown up or called. He is always late without calling, occasionally reeks of alcohol and watches porn in front of me and the other female (administrator). The other female and I sat down with the owner back in April and voiced our displeasure with this. A month after we talked to the owner the son was right back at the same behaviors. I perceived that since he was not terminated for any of these that this was considered the acceptable standard. I am telling you this because I am concerned he is going to come in, change his story and say that I should have known based on a set of company standards. I am also concerned his son will come in and back up his lies. Because he is family does that mean he doesn't abide by the same standards? and I should have known this how?

If they stick ONLY to the information given in the initial investigation and are not permitted to add a bunch of new lies....I think I have a very good chance...and thanks swalsh too!

 

[cbg]

Because he is family does that mean he doesn't abide by the same standards? It can. No law requires that an employer treat all employees the same as long as it's not because of a characteristic protected by law. Being or not being related to the employer is not a characteristic protected by law. Therefore, the employer can legally treat you differently than his son was treated.

and I should have known this how? You should never assume that you are entitled to the same treatment as a family member gets.

 

[Eekamouse]

Dear {my name},
Although we appreciate your time here, this notice serves as termination of your employment with the company effective immediately.
Sincerely,
Employer
I don’t have access to the letter my employer sent to the Department of Labor stating I resigned. Can I get a copy of the case file prior to the hearing so I can be prepared? Can I get the notes taken? How would I do that?

Almost, the letter of termination did not state why I was fired. I pasted it above.

This may not be good enough reason,but I want to subpoena the office administror. She can verify, no set of procedures are presented to new employees, she can verify I never showed up even 1 minute late or had unannounced absent during my entire 51 weeks, she can also verify that no disciplinary accusation verbal or written occurred. I am extremely concerned they will continue to lie and produce false documents stating this was common behavior.

Somehow this sounds contradictory to me, first you state, “your employer's truthfulness is not an issue” and then you state, “. They go with which one is most believable”. I must be missing something, to me the fact that he lied and I can prove it makes him less believable, is that not correct? My phone records also prove he lied because the determination letter states he claims “I did not call in” on those days.


Additional notes:
My absence did not cause any damage or loss to the company. I am a data developer, so it is not like phones calls weren’t answered, orders were lost or not fulfilled due to my absence.

Now, I really didn’t want to bring this up, but prior to this I never would have thought I could be terminated for not reporting 3 days. The owners son has far (more than 3 times) not shown up or called. He is always late without calling, occasionally reeks of alcohol and watches porn in front of me and the other female (administrator). The other female and I sat down with the owner back in April and voiced our displeasure with this. A month after we talked to the owner the son was right back at the same behaviors. I perceived that since he was not terminated for any of these that this was considered the acceptable standard. I am telling you this because I am concerned he is going to come in, change his story and say that I should have known based on a set of company standards. I am also concerned his son will come in and back up his lies. Because he is family does that mean he doesn't abide by the same standards? and I should have known this how?

If they stick ONLY to the information given in the initial investigation and are not permitted to add a bunch of new lies....I think I have a very good chance...and thanks swalsh too!

Why would you think the office administrator would testify to your benefit instead of to her employer's benefit? You'd be wasting your time trying to drag her into this mess.

 

[Proserpina]

Why would you think the office administrator would testify to your benefit instead of to her employer's benefit? You'd be wasting your time trying to drag her into this mess.

I'd think it's pretty much guaranteed that she'd lie on the stand if it means she keeps her job.

 

[Geyser12]

Why would you think the office administrator would testify to your benefit instead of to her employer's benefit? You'd be wasting your time trying to drag her into this mess.

She will not lie for them. She refused to lie to customers for them. I worked side by side with her and there is no way under oath (she is only 24) that she will lie. She just closed on her house and will be quitting very soon. But she can't agree to testify willingly right now.

 

[Proserpina]

She will not lie for them. She refused to lie to customers for them. I worked side by side with her and there is no way under oath (she is only 24) that she will lie. She just closed on her house and will be quitting very soon. But she can't agree to testify willingly right now.

Hmm.

She just closed on her house.

And you think she's going to risk her current source of income?

Seriously?

(Not that it really matters)

 

[commentator]

She will not lie for them. She refused to lie to customers for them. I worked side by side with her and there is no way under oath (she is only 24) that she will lie. She just closed on her house and will be quitting very soon. But she can't agree to testify willingly right now.

Listen to what I am saying here. YOU DO NOT NEED TO SUBPOENA THIS PERSON. There will be no added value to her being there. Forget this. You are not trying to beat this issue to death. Okay, just the facts, ma'am, as Joe Friday says. If you begin calling in odd people to prove this or that aspect of your testimony, latch onto little details and beat them into the ground, try to show beyond a shadow that your employer is a lousy lying no good, they're going to quickly decide you're a nut job and what you say will be much less believable. It is completely not necessary that you refute every single statement that your employer makes. You just tell your side of the story. DO NOT WORRY about what they are going to say, prepare yourself and get ready to pound every single accusation or statement they may make into the ground. Just present your facts. Be brief, professional, and exude trustworthiness. Do NOT be combative and assertive, and do not confront your employer and drag in things that are not directly related to your case.

For one thing, do not even dream they'd want to hear about your employer's son's poor attendance, except that you might mention that you have seen several other employees, in the last few months, be absent for several days in a row and no action was ever taken so you really had no reason to believe your employer would terminate you for being out of work on the days in question.

Okay, if they do not have a handbook, with your signature, saying this was company policy, and here is your signature on it and you signed off on it on such and such date, then what they'll say is that yes, it was company policy. You'll say that is was not company policy. And the hearing officer will go with the more believable.

I have even seen cases where employers manufactured handbooks and warnings, even signed by the employee, which were bogus ( I believed the claimant, and I was the hearing officer.) If something like this were to happen, you should clearly, in a dignified manner, say, "I would like to state that this is NOT my signature, and I have never received such a warning." But just because they submit something, or have a witness say something, that does not mean it will be believed unless you have a counter witness or counter proof.

But seeing everything they submitted so you can refute it line by line is not what you are supposed to be doing here. You just present your facts. You don't have to or need to pick apart everything the employer may say or submit. That just complicates and weakens the important issues. Did you quit your job? Did you know that if you were absent on these days, it would result in your termination?

The attitude you should cultivate and present here is that you do not understand how this happened, that you had NO IDEA that what took place on such and such date, when you spoke with so and so (your supervisor) as is documented in these phone records, was not being received, and understood by them as time off, not as a resignation.

You did not in any way understand that your absences on date one, date two and date three were going to lead to your being terminated. You were not told this when the conversations were held, and you were completely surprised to hear that you were being terminated. You were even more surprised to hear that they had told the unemployment office that you had quit the job. You had not done so, it was never your intention to do so, and you never made any statements to that effect.

You seem to be a very thorough and a little bit obsessive personality type. But be very sure that these unemployment hearings are not designed to go on all day. They are designed to cut quickly to the relevant part of the unemployment law, and whether or not it was applied correctly in your case. The reason you are able to self represent is that you are not going to go in there and argue brilliantly, annul and disqualify your employer's statements, and do a brilliant summation which will convince the jury. You're going to quietly and succinctly tell your story. Then a decision will be rendered.

Please, please, whatever you do, do NOT attempt to go into the hearing and quote unemployment case law to the hearing officer to argue your case. They know the laws, much better than you do, and will find this very off-putting. While they try to be objective, they are human. And if you are an ostentatious, argumentative know it all, it will be slightly harder for them to find you believable.

 

[Geyser12]

Hmm.

She just closed on her house.

And you think she's going to risk her current source of income?

Seriously?

(Not that it really matters)

Yes she will, because she already has a job lined up with her husbands family. The only reason she has stayed at the job is because she has been there two years and the mortgage company would consider her more of a risk if she just start a new job for a family member....at least that is what her attorney told her.

Irrelevant now.