When you talk to the unemployment fraud worker, you are not talking to the police. You have not been charged with a crime and are not in the legal system at this time. Admission of guilt or remorse or intent is not necessary. It's not even expected. Remember that OP we had here a while back who kept saying the system just mysteriously kept sending her husband checks which he never received, and now he's overpaid? People in the system know, even if she doesn't, that there's no way this happened.
Mens rea or intent are factored in pretty much automatically because every time a person is signed up for a claim, they are carefully given the instructions for certification, told exactly how to report their earnings or beginning to work again, told that there are severe penalties for the deliberate misrepresentation of their situation, and "accidental" misrepresentation. Then if there is something they don't understand or have a question about how to report it, they are encouraged to ask, and the departmental literature on line and workers in the offices will explain it again and again. They sign statements agreeing that they have been told these things and that they understand them. If they were out of their head or in a coma when they did these things, they weren't able and available for work anyhow.
What's that saying about "ignorance is no excuse?" I have seen people come in who were so simple they truly had difficulties with the basic activities of daily living. But even they could not say they had not been told how they were expected to legitimately make these certifications, when they were to stop making them, and that any incorrect answers were considered falsifications. Even if someone else did them for the claimant, the claimant is still responsible if it is his claim. He's signed it every single time that false information was entered, unless fraud and false use of his identity was involved. And in this case, there's still culpability, and someone else may be criminally prosecuted.
Each week that this OP in this discussion filed for his unemployment benefits, he deliberately and distinctly lied in answer to the questions such as "Did you do any work this week for which you have been paid or will be paid?" Those certifications are on record. So what's the point of hiring someone to say, "Oh he didn't understand the questions!" or "He thought if he was making so much less it was okay to keep filing!" for him, while he still insists on making no comment to avoid self incrimination? It isn't going to help him in the system.
The system cross matches and re matches itself. It checks between states more and more these days. It checks hires against records of claimants. More and more "I didn't do it" is not a reasonable defense. If you can figure out some way to show that you didn't know what you were doing when you did what you did, more power to you. My only thought on this, in regard to the woman in New Jersey who said her "superiors" told her she was eligible for unemployment insurance, is that it is remotely possible that the employer was signing her up on a partial unemployment, and they were the ones who were falsifying the information about whether or not she worked or was paid for certain weeks, and all she was doing was signing the forms. That's the only case in which "my superiors told me I was eligible" might be a legitimate excuse or carry any weight about intent. Though her signature on the forms is a bad sign for her story.
Because once she had actually filed a regular claim, not one submitted by the employer, the unemployment system worker would have told her whether or not to file, how unemployment insurance is designed to work and what would be considered a lie or to be fraud, regardless of what a superior who did not work for the agency tried to tell her.
I have actually seen employers who encouraged their employees, their whole staff to sign up on unemployment insurance, giving them the false lack of work lay off paperwork, because they did not understand how the system works and were having trouble making payroll. But this does NOT mean that the employees were off the hook for committing fraud if they did what they were told to do and worked and drew unemployment. They were asked directly, "Did you work?" Yes, you did know what the question meant. You did know it was a lie. You did know you should not do it.
Since there are a lot more of these frauds discovered than are ever prosecuted to the fullest extent, it is very unlikely that a case would be prosecuted if there were the slightest edge of excusability or reason for mercy or especially pitiful or forgivable circumstances involved. Repeat offenders, multiple state offenders, people who are running large scale frauds involving several identities and multiple employers, those are the people who are most likely to be prosecuted.
I will continue to maintain that when you are busted for unemployment fraud, which you almost inevitably will be if you do it, your best move is to respond quickly to their contact, and express your intention to pay the money back. You do not have to admit you did it. You do not expect the police to come to your house and take your to jail immediately. But you should not avoid them or ignore them and you do not need to get a lawyer immediately. Use that money to pay back the overpayment. In most all cases, your situation can be worked out in some way with the agency before you are prosecuted for criminal fraud, even though you may be, can be, would be subject to such prosecution.
