Unemployment Insurance Appeal Involving Job That I Refused

[Mt_Vernon]

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


Hello. I live in Chicago, Illinois. My primary occupation is actor, and I also worked for the Census Bureau as a Census Enumerator for two months in 2010. In January 2011, my earnings from some acting jobs and from my work at the Census Bureau qualified me for unemployment insurance (UI), which is administered by the Illinois Department of Employment Security (IDES). My weekly benefit was $51, the lowest possible benefit.

In early July, I was offered a one-day acting job as a background actor in a commercial. This job would be 60 miles from my home and would require me to work for 10 hours. My compensation would be only $50. This pay was way too little to compensate me for 10 hours of work and 120 miles of gasoline and tolls. So, I rejected the job.

An IDES adjudicator determined that the acting job that was offered to me was suitable as defined by the Illinois UI Law, which can be found at the following link:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2434&ChapterID=68

Therefore, IDES wants to punish me for not accepting the job. Why does IDES believe that the job was suitable? Well, there are several reasons.

1) IDES believes that the workplace location was only 25 miles from my home.

2) IDES believes that, when I rejected the offer, I had been unemployed for more than 1 year.

3) IDES believes that the wages and hours of the refused job were not substantially less favorable than the wages and hours of the last job that I had.



I filed an appeal of IDES's ruling. I explained 1) that the job was, indeed, 60 miles from my home, 2) that I had been unemployed for only three months when I rejected the offer, 3) that my last job paid much better than the refused job, and 4) that the refused job is illegal because this job paid only $5 an hour, which is below the Federal minimum wage ($7.25 an hour) and the Illinois minimum wage ($8.25 an hour).


I have an appeal hearing scheduled in a few weeks, and I have a few questions about the minimum-wage issue.

1) If a job pays below Federal and state minimum wage, doesn't that make the job automatically unsuitable under the Illinois UI Law, regardless of where the job is located or how long a person has been unemployed. Can IDES force me to take a below-minimum wage job under any circumstances?

2) I spoke about the minimum-wage issue to the Wage and Hour Division (WHD) of the Federal Department of Labor (DOL). WHD said that it has the authority to go after employers who pay less than the Federal minimum wage. However, WHD does not have the authority to go after state agencies that force people to accept jobs that pay less than the Federal minimum wage. Is IDES violating any Federal law by forcing me to take such a job? If yes, which Federal agency investigates this?

3) I recently found out some information about the background actors who DID work on this commercial.

There were two groups of background actors. The actors of the first group were given the same offer
that I was given (about 10 hours of work for $50), and they accepted the offer. These actors are not in a union, and neither am I. So, all of us are non-union, and we all got the same offer. They accepted it, and I rejected it.

However, the day before these actors were supposed to work, the employer called them and told them that their pay would be increased to $75. Now, $75 for 10 hours of work is $7.50 per hour and is above the Federal minimum wage of $7.25 per hour but is still slightly below the Illinois minimum wage of $8.25 per hour. Now, why would the employer raise the pay when the actors had already agreed to work at lower pay? Maybe because even the employer realized that asking people to work for $50 for 10 hours was illegal and inappropriate?

The actors of the second group also were not in a union, but they had *agents*. These actors, at the start, were able to use their agents to negotiate a pay rate of $150 for 10 hours of work. These actors never accepted the $50 offer. The first offer they accepted was for $150.

So, ultimately, ALL the background actors ended up working for rates much higher than what was offered to me. These rates were more in line with minimum-wage laws than the $5 per hour that I was offered. So, does all of this prove that the $50 offer that I received was unsuitable (as defined by the Illinois UI Law) on the grounds that the $50 offer was below Federal and state minimum wage?


I appreciate any helpful comments. Thank you.What is the name of your state (only U.S. law)?

 

[anteater]

50+ posts in a thread on another semi-popular legal forum and now you want to start the same thing here?

 

[commentator]

I can most certainly tell you that the hearing officer in the appeals hearing will NOT be a robot. Therefore, if you go in with a belligerant, overbearing, rude officious tone of voice, hammer them with this case law and that case law, cover them up with verbiage as your post has done here, Yack, Yack Yack...they'll be looking at this with a hopeful eye, wanting to find a way to stop your benefits. While they hopefully will go by the law and be unbiased, you really don't need to give them a reason they can hope they don't have to find in your favor.

Given what you've said here, regardless of the way you've said it, they probably will overturn this decision and re-start your benefits. If you've been continuing to certify for weeks, you will be back paid for those weeks. But for mercy's sake, why do you feel it is necessary for you to provide the information that the other workers who did accept the job blah blah blah? At the time you were offered the job, it was 60 miles from your home, involved wages of less than minimum wage. You had only been unemployed for three weeks, which is very easily documented by your claims records. It also would not hurt to emphasize that you would be quite happy to take pick-up jobs of this nature if they were closer to your residence and if they paid at least minimum wage for the day's work. You should also emphasize that you are actively seeking appropriate work in your area.

Skip that garbage about who all else who worked that job and that they had an agent and why they changed the pay at the last minute. That does not in any way apply to you. You are not obligated to document that justice has been served and that you turned them in to Wage and Hour and and and and**************.just that you refused the job because of the distance that you would have to travel, that it was a very limited time, and that it did not pay even minimum wage based on the information you had at the time you refused it.

Do not wave the prior decision about this in their face and show them triumphantly where they made mistakes. If the appeals officer is of reasonable intelligence, they will be able to see this without your going all "F. Lee Bailey" on them and making an oration demanding justice.

Be polite, professional and quiet in your presentation. Show them the reason you refused the job, logically and factually. ONLY the facts, presented nicely.
Given the circumstances, it sound pretty positive for your side. But you seem to have a tendency to beat the issue to death, and that tendency will not endear you to the appeals officer. When you've made your point, STOP TALKING. If they wish to know more, they can ask you questions. Give brief polite answers, lay of the superfluous information.

 

[cbg]

Of course she is. She hasn't gotten the answer she wants yet. Until someone tells her the the IL UI office has violated the law, she's going to keep beating away at it.

 

[commentator]

Incidentally, making a decision you disagree with does not involve "violating the law." It is not something you can sue somebody for. It can be corrected if the unemployment system sees it as something that needs to be changed, that's why you are getting an appeal.

I strongly suggest this person play it down, doesn't over do her drama. Getting your unemployment reinstated is the goal, not Justice For The Workers of the World. There have been a lot of new employees hired by the state to take unemployment claims in the las three or four years. Some of them do not do a particularly good job. That's why there is an appeals process.

 

[Mt_Vernon]

I can most certainly tell you that the hearing officer in the appeals hearing will NOT be a robot. Therefore, if you go in with a belligerant, overbearing, rude officious tone of voice, hammer them with this case law and that case law, cover them up with verbiage as your post has done here, Yack, Yack Yack...they'll be looking at this with a hopeful eye, wanting to find a way to stop your benefits. While they hopefully will go by the law and be unbiased, you really don't need to give them a reason they can hope they
don't have to find in your favor.

Well, first of all, I am am a male, not a female, as the responses here seem to imply.

Now, I did discuss this issue on a different forum, but that forum was taken over by some person who was not a lawyer and who seemed to dislike actors. This person was insulting me, and this person did not give any information that was of legal value. So, I came here.

Now, as for my post, I certainly did not mean to sound rude or belligerent. As for being officious and hammering people with case law, I think that may actually be a good thing. Acccording to what I read about the appeals hearing, the hearing will be conducted the way a trial is conducted. Both I and the IDES adjudicator will be under oath. I will give my side, and the IDES adjudicator will cross-examine me. Then the adjudicator will give her side, and I will cross-examine her. So, some "officiousness" may be in order.

Here is the website that describes the appeal hearing:

http://www.ides.illinois.gov/page.aspx?item=1769


If I sounded too officious, that may be because I spent years working in the corporate world and spent time working as a Federal agent (Census worker). If that is the wrong way to sound, how do you think that I *should* sound?

Given what you've said here, regardless of the way you've said it, they probably will overturn this decision and re-start your benefits. If you've been continuing to certify for weeks, you will be back paid for those weeks. But for mercy's sake, why do you feel it is necessary for you to provide the information that the other workers who did accept the job blah blah blah? At the time you were offered the job, it was 60 miles from your home, involved wages of less than minimum wage. You had only been unemployed for three weeks, which is very easily documented by your claims records. It also would not hurt to emphasize that you would be quite happy to take pick-up jobs of this nature if they were closer to your residence and if they paid at least minimum wage for the day's work. You should also emphasize that you are actively seeking appropriate work in your area.

Well, actually, I was unemployed for three months, not three weeks. But, three months is still a lot less than 1 year. And, after I refused that job, I have had three other acting jobs. Two of these jobs were only 20 miles from home and paid slightly above the state minimum wage for the first 8 hours and time-and-a-half after that. The third job paid $50 for about 3 - 4 hours of work, was about 50 miles from home, and came with a $25 travel reimbursement.

As for the information about other workers who accepted the job, that is a brand new development, and I wasn't sure whether I should mention it. That is why I came here. This information shows that the employer realized that the employer was doing something illegal. In your opinion, why, exactly, would it hurt me to mention this information?

I think that you MAY be correct in saying that, if I mention ALL the facts (60 miles, unemployed for only three months, below minimum wage, had three acting jobs since the refused job), then I will get a ruling in my favor. However, I came here to ask specifically about the minimum-wage issue. Does the fact that the refused job paid below the minimum wage *automatically* make the job unsuitable? Is IDES in violation of Federal law for trying to force me to accept this job? And I would still like an answer to these questions, if
at all possible.

Do not wave the prior decision about this in their face and show them triumphantly where they made mistakes. If the appeals officer is of reasonable intelligence, they will be able to see this without your going all "F. Lee Bailey" on them and making an oration demanding justice.

That "If" about reasonable intelligence is a big "If". My current UI claim is my 2nd claim since December 2007. I have been collecting UI, off and on, for a few years, and IDES has made MANY mistakes. This mistake is just the latest. I'm not really sure just how smart these people are.

If they wish to know more, they can ask you questions. Give brief polite answers, lay of the superfluous information.

Actually, the problem is that they did NOT ask questions. When I refused the job, I had to fill out a Refusal Form. That form asked for the employer's address, and I said that the employer's address (the corporate office) was located 25 miles from my home. The form also asked for the workplace location, and I said that that location was 60 miles from my home. An IDES adjudicator called me about the refusal. However, instead of talking to me about the refused job, she changed the topic to talk about the work that I had been searching for. She never really discussed the refused job with me. She never asked about the location or anything. Next thing I know, she mistakes the corporate office for the workplace location and says that the job was only 25
miles from my home.

So, you can't really wait until they ask you questions. They may not ask questions because they THINK they know all the answers, when they don't.




Anyway, commentator, I thank you for your "commentating".

 

[commentator]

Okay, I think you are way way beyond overthinking this stuff. I am very familiar with hearings, I know how they are done, please read my previous post, don't rely on something you think you are getting from a post you are reading on the internet about how it's going to go.

What they are interested in is whether or not you are making a legitimate job search, which you should be able to maintain that you are. Whether or not the job was within reasonable commuting distance, which it wasn't regardless of the location of the company's home office, and what you do and do not have to take in terms of employment, which you are way off base if you think you can engage in an argument with a person from employment services and win anything.

Listen to me. I have gone on your other site and read your postings. I have read your citing of case law. I have read your posts and the posts of others. Please listen to me. Answer questions, state your story simply and do not go all around the world trying to make some point about the unfairness of your treatment during your tenure with drawing unemployement, the ineptitude of the unemployment staff in general, and how they are "supposed" to be conducting their hearings.

You will be formally sworn in during this hearing, the appeals officer will be doing a formal procedure. There is actually a template of the process the hearing is supposed to follow. You will be given an opportunity to present your case. What was asked of you or what someone said in the fact finding for the decision denying you benefits is NOT what you are arguing about. You will not get anywhere by brilliantly proving that the person who made your decision denying benefits was incompetent, or that the decision denying you benefits was wrong according to case law cited number blah blah blah blah.....

Just explain the nature of the situation. That though the office of the business is 25 miles from you, the job which was one day anyhow was 60 miles from your home. And as quoted to you when you refused it, they paid less than minimum wage. That you are doing a job search, legimately and honestly, for jobs that are within commuting distance and are appropriate for you. Don't say, "I know what my rights are! You cannot make me take this!.. blah blah blah."

DO NOT go into all this other c=**&, unless you want to be denied unemployment, and then you'll be back on these sites, asking what you can do, can you sue in civil court? can you file an EEOC grievance? can you .... and the answer to that is no. It goes no further, you just stop getting benefits. Period. End of story. When the hearing comes, shut up. Take a deep breath. Speak cautiously. Do not argue.Tell your story, just the facts,please. No emphasis on how badly you have been treated, how incompetent the unemployment system is in general.

Sorry about the gender mistake. But either way, you are a dramatic person who finds yourself in a bureaucratic situation. Go against your natural inclinations. Be formal, be cool. Do not be dumb. Your goal is to keep drawing benefits, not to tell them off dramatically. Curtail your desire to right the wrongs, correct the errors. Make no mistake, I know how the hearing will go. You are not expected to be dramatic go in there breathing fire and and Win one for the GIpper. You won't. Be factual and calm and you may get your benefits reinstated. If you don't, that's the end. No further appeals will help you.

By the way, there is nothing that makes the denial of benefits or the overturning of the decision "Automatic." You can't play that card and assume you will win. It is all based on whether or not the appeals officer determines that your refusal of work is appropriate, and that you should continue to receive benefits. So you don't have a golden drum to beat. Just tell your story, explain that it didn't pay minimum wage, don't assume that gives you an automatic "I get what I want!" pass. As I said, there is not really anywhere beyond here to take your appeal. The board of review looks only at legality of the decision, the chances of them overturning an appeals hearing decision is very slim. And beyond that is civil court, but if it goes that far, it's really really unlikely to be overturned. So win this one, and you won't have to worry about those others.

 

[Mt_Vernon]

and what you do and do not have to take in terms of employment, which you are way off base if you think you can engage in an argument with a person from employment services and win anything.

What do you mean, I can't argue about what job I do or do not have to take with a person from employment services?

Listen to me. I have gone on your other site and read your postings. I have read your citing of case law. I have read your posts and the posts of others. Please listen to me. Answer questions, state your story simply and do not go all around the world trying to make some point about the unfairness of your treatment during your tenure with drawing unemployement, the ineptitude of the unemployment staff in general, and how they are "supposed" to be conducting their hearings.

When you mention "other site", you're talking about the postings that I made under the name Midwest_Worker, right? I just wanted to make sure, because you say that I posted case law on the other site, and I don't think I posted any case law at all.

Anyway, if you saw the postings, then you know that I am facing two appeals, one for refusal of work and one for work search. Now, I agree that, at the appeal hearings, I should focus on the current issues, and I should not talk about the mistakes and ineptitude shown by IDES in the past.

You will not get anywhere by brilliantly proving that the person who made your decision denying benefits was incompetent, or that the decision denying you benefits was wrong according to case law cited number blah blah blah blah.....

Well, now I'm confused. Showing case law and legal precedent is a legitimate way to convince the appeals judge that I am correct. In fact, IDES provides a handbook on the Illinois UI Law that includes legal precedents. Here it is:

http://www.ides.illinois.gov/Custom/Library/publications/Publications/IllinoisUnemploymentInsuranceAct2.pdf (Legal precedents start on page 397.)

In fact, I have already found some legal precedents that could apply to me.
I believe that I am supposed to submit these precedents as evidence, to the judge and to the adjudicator, BEFORE the hearings take place.

As for the competence of the adjudicator, I will not say that she is a complete idiot, but I will say that she made some serious misunderstandings. I will be diplomatic, but the adjudicator made mistakes, and I can't ignore that.

Just explain the nature of the situation. ... Don't say, "I know what my rights are! You cannot make me take this!.. blah blah blah."

Right. I will be diplomatic.

By the way, there is nothing that makes the denial of benefits or the overturning of the decision "Automatic." You can't play that card and assume you will win. It is all based on whether or not the appeals officer determines that your refusal of work is appropriate, and that you should continue to receive benefits.

This confuses me a bit. If a job violates Federal law, why doesn't that job automatically become unsuitable?

As I said, there is not really anywhere beyond here to take your appeal. The board of review looks only at legality of the decision, the chances of them overturning an appeals hearing decision is very slim. And beyond that is civil court, but if it goes that far, it's really really unlikely to be overturned. So win this one, and you won't have to worry about those others.

I'm not so sure that a civil court is unlikely to overturn a decision that has been affirmed by the appeals judge and by the board of review. Go to the precedents section of the UI Law Handbook mentioned above, and look at the following case:

Phyllis Dimodica v.IDES, No.2-87-0173 (1987)

The IDES adjudicator, the appeals judge, and the board of review decided that Phyllis did not have enough contacts for a proper work search. However, the court ruled that she DID have enough contacts.

Also, in MY work-search issue, I have even MORE contacts than Phyllis did. So, this precedent can help me.

 

[commentator]

And my advice is exactly the same to you as it has been.
You == Layman. Them== professional.

They do this all day every day. They didn't just look it up on the internet when it became important to them. They have heard every argument you could ever dream of making.

You come in there and start quoting case law to them and demanding justice it will do nothing but irritate them. You say : "Showing case law and legal precedent is a legitimate way to convince the appeals judge that I am correct. In fact, IDES provides a handbook on the Illinois UI Law that includes legal precedents. Here it is:"

Do you not think they might already be familiar with what is in their own handbook? Do you think they need you to tell them how to rule? The key word here is convince. What they are going to be doing is listening to you, sizing you up, listening for certain key things, perhaps asking questions to probe these issues, and if the impression they get is that you think you believe you know everything and that you think you can grab this case and wring it into what you want it to be and hand it back to them so convincingly that they will have NO choice but to see it your way, you are wrong.

It is rather common wisdom that the louder and more aggressively the claimant (or the employer) struts and quotes and demands, the more they have to hide, the weaker their case. While one in this position tries to make a decision based on law, rather than one influenced by the personality of the presenter, it is always hard to separate logic from instinct. An appellant who raises the hackles does not tend to get the benefit of the doubt. That's just life.

And if you lose, as I said, you will soon run out of appeals. Because once it has been taken up in appeals tribunal, there is only the board of review and then civil court, and if you lose in appeals, it is very rare that an appeals ruling is overturned. I keep saying this, though you keep arguing with me.

If you are making your appropriate job searches, show this. If this job was not appropriate, show this, (though not in legal terms.) Be polite, professional, brief.

I can see, from the whole posting history, that you are going to disregard everything you have been told and do what you think you should do, because frankly, you are a person who thinks you are very smart and who loves to argue. I hope it goes well for you, I hope you come through your hearing with flying colors. Good luck.

 

[Mt_Vernon]

You come in there and start quoting case law to them and demanding justice it will do nothing but irritate them.

Well, first of all, any case law that I submit will most likely be submitted *before* the hearing. Also, the appeals judge has a law degree. So, why would this guy be angered by the presentation of case law? I can see how the adjudicator might be angry, but the judge is a lawyer who understands the importance of case law. Judges *expect* people to bolster their arguments with case law. If IDES does not expect me to use case law, then why does IDES publish case law on its own website?

I will not "demand" anything, but I will use case law to bolster my claim.

Do you not think they might already be familiar with what is in their own handbook? Do you think they need you to tell them how to rule?
The key word here is convince. What they are going to be doing is listening to you, sizing you up, listening for certain key things, perhaps asking questions to probe these issues, and if the impression they get is that you think you believe you know everything and that you think you can grab this case and wring it into what you want it to be and hand it back to them so convincingly that they will have NO choice but to see it your way, you are wrong.

I don't think that any judge has memorized every single piece of case law. So, no, this judge might not be familiar with every single case.

Sure, let them size me up. They will see that I am not ignorant of the law and that I know something. I've never heard of anyone winning a legal battle by being ignorant of the law.

I'm not just an actor. I have multiple college degrees in a high-tech field. And I find your notion that I can win this legal battle only with a great personality, to be offensive.

Of course, being diplomatic is important, but being ignorant is fatal.

It is rather common wisdom that the louder and more aggressively the claimant (or the employer) struts and quotes and demands, the more they have to hide, the weaker their case. While one in this position tries to make a decision based on law, rather than one influenced by the personality of the presenter, it is always hard to separate logic from instinct. An appellant who raises the hackles does not tend to get the benefit of the doubt. That's just life.

Well, I certainly will not be rude to these people, but I don't quite understand why showing legal precedent means that I have something to hide.


And, speaking of legal precedent, I think I may have found a great one. In one case, it was ruled that, if a job offer contains the job's starting date but does NOT contain a definite starting time, then the offer is not considered to be a valid offer. If the offer is not valid, then refusing the offer is OK with IDES.

So, I went back to the wording of the offer letter for this acting job, and here is what the letter said:

I want to book you for July 15th as an extra for our commercial. You will get a phone call the day before with the exact starting time, but expect it to be around 10 AM and end around 9 PM.

The letter was sent on July 3.


So, the person making the offer admits that he doesn't know the exact starting time. "Around" 10 AM doesn't sound very definite. So, I may be able to cinvince the judge that this was not a valid offer in the first place.

 

[>Charlotte<]

Commentator, you can't say you didn't try.

 

[commentator]

Direct quote from OP: being ignorant is fatal.

 

[Mt_Vernon]

Well, I have some good news to report.

Now, as I mentioned before, I filed two appeals on two different issues, the job-refusal issue and the work-search issue.

On the issue of my work search, an adjudicator from IDES has looked at the revised work-search forms that I submitted, and has concluded that my work search was sufficient. This is an instance of an adjudicator's reconsidering a determination; so, there will be no appeal hearing in front of an appeals judge. So, I have prevailed on the work-search issue.

However, the job-refusal issue is still going on. That determination was not reconsidered by an adjudicator, and the appeal hearing for that issue is coming up soon.

 

[Mt_Vernon]

Well, I have more good news to report. I have won the appeal regarding the job-refusal issue.

I had the appeal hearing a few days ago, and the hearing was a very short one. The judge asked about the nature, date, and pay rate of the refused job. Once I told him the pay rate ($5 an hour), he said that pay rate was below minimum wage. At that point, the judge said he needed no further information. He didn't even ask how far from my home the job was. His written ruling states that the job is unsuitable because the pay rate is substantially less than the Illinois minimum wage ($8.25 per hour).

Now, the adjudicator knew from the beginning what the pay rate was. So, why didn't the stupid adjudicator issue the proper ruling in the first place? What a waste of time this experience was.

 

[csi7]

It was not a waste of time. It proves that when the facts are listed properly, without personal feelings being involved, that the information can be ruled upon fairly.
Good for you to win this appeal. In the future, be far more diligent about how you list information in your weekly or bi-weekly certification of job search and job refusals.