Might have to repay unemployment benefits? Shouldn't have to?

[confuzzled1]

I have a friend who was fired from her banking job 18 months ago. She was fired for securities fraud and although she was later found innocent by the state of Michigan for the more serious charges, she did violate some company policies so the firing was upheld. She started receiving unemployment benefits right away even though her employer stated that they would fight it. They never acted on it though within the 30-day required period.

My friend just a received a phone call last week from the unemployment office stating that her employer did in fact protest the unemployment within the 30-day period, but it was overlooked. The protest was placed in her file but the benefits continued uninterrupted for the last 18 months.

Now she has to go to a hearing next week to decide whether or not her benefits will be extended the remaining 3 months (I think that's what she has left), but they are also going to decide if she has to PAY BACK everything she has received over the last 18 months. (and of course doing so would kill her financially)

Has anyone heard of such a thing happening before? She received a letter from the unemployment office 18 months ago stating that her employer did not protest the benefits and so therefore she was entitled to them. Now they are saying that they were wrong. Why didn't the employer notice she was getting paid benefits until now? I'm not sure how all of this works but it seems like someone screwed up big time and now my friend might have to pay for it.

The unemployment office gave her free advocacy service for the hearing but it sounds like her advocate is not much help. He hasn't really wanted to talk to her all that much. Sounds like he's really busy.

Any advice?

 

[pattytx]

I'm gonna be the nice guy here, which state it is not withstanding (sorry, guys).

If the person in question violated company policies, especially in such a major way, I'm surprised she got UI benefits at all. I'm assuming the employer appealed the determination and won. Yes, she does have to pay it back.

 

[ecmst12]

Apparently she is in Michigan.

 

[csi7]

The documentation to prove the case is in the timeline of the terminations and other actions taken by the company to handle the issue. Appeal hearings are to review the facts, statements, and you have to keep your emotions under control to get the full benefit of the examination of facts and statements. Make certain you put the facts on one sheet(s) of paper after you let loose all of your feelings about the matter. It will help you recall the details that show more of actual events.

 

[jsmith416]

It sounds like the employer is alleging misconduct. The exact definition of this varies by state but generally speaking it means the employee knowingly and willfully violated a reasonable rule the employer had established or did something egregious like showing up to work drunk or stealing/fighting.

It it clearly established in the law that the employer bears the burden of proof for showing misconduct. Your friend really doesn't have to do anything; if the employer cannot prove misconduct then benefits cannot be denied for that reason.

However it would help if your friend could think really hard about anything the employer might bring up as a possible misconduct issue and then formulate a defense to that. For example, if there was an alleged violation of policy then the employer should be able to prove that the policy was documented and that the employee was warned about the consequences of breaking it.

If your friend has no idea of what possible misconduct the former employer might be alleging then she will just have to wait for the hearing to see what they allege.

 

[pattytx]

Considering the employee was civilly prosecuted for securities fraud (even though she was judged not guilty), I'll bet it had something to do with that.

 

[commentator]

What happened 18 months ago is not going to result in a hearing about her reason for termination right now. This whole issue is about overpayment at this point.

My question is, did your girlfriend receive an initial decision letter which stated that she was approved for unemployment benefits? Back when she first filed, and they said the employer was not contesting it, she should have, at some point gotten a letter which said that "...the firing offense does not rise to the level of misconduct, therefore benefits are approved" or something similar. She should still have this letter.

It would not ever say anything about "the employer did not fight the benefits, so she is eligible for them." Whether they protested or not does not really determine whether the person received the benefits, it is whether they were terminated for a disqualifying reason.

When you said "the termination was upheld" what are you talking about?By whom? The labor board? The company union?

Now the agency is saying they THOUGHT the employer did not file a timely appeal to protest the approval of the benefits. So since the claim was approved, she was allowed to continue receiving benefits all this time. And then at this point, (which incidentally would be about the time frame in which the employer would first realize this error had occurred based on account charges), the employer is probably screaming, and when the agency looked back, they found that the employer HAD filed an appeal on this claim,a timely appeal, and it was not followed up on, no hearing was ever scheduled.

One thing that should definitely be brought up in this overpayment hearing. If the employer filed an appeal of the claim and then heard nothing about a scheduled hearing, they really should have followed up on this. I'm sure if she had been denied, and had filed an appeal and never heard anything else, she'd have called and asked why there had been no hearing scheduled.

But right now, the issue is not her reason for termination in the first place, it's whether she is overpaid for all the weeks of unemployment and extensions she has received, because the employer did not get their rightful chance to protest the claim.

She has certainly done nothing wrong. She was approved on the initial decision, and has filed in good faith, believing due to the agency's own statement that she was fully eligible.

Therefore, her argument in the hearing should be that due to her initial approval letter, she has filed for benefits for which she is fully eligible. Demanding that she repay the benefits, when the issue of her termination has never been officially appealed and she has never been denied benefits by the unemployment agency at any time would be inappropriate.

Asking her to have another appeals hearing, giving the employer the chance, at this late date to protest the claim would be inappropriate too, since this siutation came about not through her fault in any way, but through agency error. AGENCY ERROR. She should use this phrase frequently.

Not my error, not my fraud, but an error made by this agency, in not allowing the employer a timely protest. There is a good possibility that the claim would have been approved anyhow, even if he had filed a protest and there had been a hearing. So how could they now say she received the weeks in error? We don't know this. The claim has never been denied, had actually been approved in an initial decision.

This is what she needs to bear down on in the hearing that is coming up. She will be speaking probably with an appeals referee and the overpayment unit.

I am curious about whether they will be trying to do a hearing about the termination at this point or whether it will be a simple overpayment investigation. She should ask her "advocate" to find this out specifically. Is this some sort of legal services, or an agency provided advocate? In any case, she'll need to be proactive, find out as much as she can herself before the hearing.

If she were at any point to be determined to be overpaid by the agency for these weeks and months of unemployment, she would immediately need to file a waiver, requesting that the overpayment be waived due to her economic situation.