My employer didn’t show up for the unemployment appeal hearing. Do I win?

by: Anonymous

Good evening,

I was forced to leave my job because the employer was trying to hide cash coming into the company and paying personal expenses with company funds, without reimbursing the company, under the guise “it’s my company, i can run it how I chose!” After refusing to re-classify personal expenses as “business expenses,” and requiring all cash be put into quick business QBs, I was demoted. I let it go.

At the beginning of October 2019, I found a series of notes to another employee on how to go about hiding the cash instead of giving it to me, so it would not be entered into QBs. At the same time, I found out the owner was cheating a customer out of a substantial amount of money, among a number of other items in order to get around paying taxes. I decided I could no longer be a part of this blatant fraud and tax evasion; so, I let the owner know I could not sit by and watch or be a part of this.

After filing unemployment, he began fighting it, saying I left because I was “unhappy.” This couldn’t be further from the truth; therefore, I filed an appeal with unemployment and was granted a hearing. I submitted evidence in the form of audio recordings of an employee lying to me (at the direction of the owner,) hand-written note from the owner on how to go around me, by keeping cash, and a video showing the owner going over the note. I truly believe I have all my ducks in a row, so to speak, and know everything I have accused him of doing is the absolute truth. I truly have no reason to lie…in fact have everything to lose due to this situation. He even had his attorney get sworn statements from all present employees, which all state I left because I refused to be a part of the fraud

My question is, since the employer chose not to be a part of the appeals hearing, will I be granted benefits based on a default since he nor his attorney being present?!

Thank you for your time and consideration!

Hi,
Okay, you left me with a few unanswered questions I’d of asked if we had talked about this first, such as whether any recordings you may of had were allowed into the record, but all I can say about your chance of winning the appeal hearing, given your former employer wasn’t at the hearing to rebut whatever evidence and testimony you got onto the record of the hearing is this. It sounds like it may of been enough to prove your burden of good cause to quit because because it was attributable to an employer requiring you to do illegal things, if you did not want to be demoted, or worst case, have any choice about your ability to remain employed without being complicit.

Frankly, I think any employee in that sort of situation would be a lot more than just unhappy, which may be why the employer or it’s attorney, chose not to appear for a stinking unemployment hearing to explain why benefits should be denied, by exploiting the right to cross examine a former employee on the merits of the quit, or why you were unhappy enough to quit a suitable job, given it was made unsuitable, by the employer’s actions requiring subordinate employees to be complicit in the cheating schemes dreamed up by a business owner.

I admire employers who create jobs, but I fall short of being a believer that all employers have some unspoken right to be believed automatically over those they employee.

It’s why I prefer documented proof especially when someone quits their job, because to be allowed to collect benefits after quitting with good cause, one should expect a hearing where they will need to “constructively prove why the employer gave them no choice but to quit,

Or, effectively prove the burden of fault for the end of an at-will employment relationship, was attributable to the employer, not the employee.

Very few unemployment statutes in any state unemployment laws, equate to a win/win no fault divorce. If employees would only accept this going into an at will employment job, I’d feel like I made one of my main points.

Chris

by: Christina

I was to come into work at 4am but thought it was 4pm my sister who is book keeper was the one who informed me I missed my shift. I then tried to reach manager but no reply back. I asked my sister if I was fired and she said yes she finished paperwork that morning. I didn’t bother reaching out to manager anymore. When I applied for benefits I was denied my employer said I quit and said I fired myself when I didn’t show up at work. I appealed it and was going to have my sister as witness but she and the company said they just wouldn’t respond at the hearing instead. Is that the best way to go it’s to late to subpoena her I have 2 days until my phone hearing.

Hi Christina,

When an employer tells someone they fired themselves because they didn’t call in to inform the employer they would not be at work, I suspect the employer’s initial response to the notice of claim filed was that claimant voluntarily quit by job abandonment, which is another way of saying they quit when they didn’t call, or show up to work.

However, in a lot of states, for someone to actually quit by job abandonment, it usually requires at minimum, two consecutive no calls, no shows, in a row to be a VQJA.

Now, for me to begin to know how to answer your question, as to what is the best way to go here, requires more information, which also assumes your employer will not show up at your hearing, or that your sister would actually be a good witness.

But assuming they don’t show, I would want to know how you plan to answer the hearing officer’s questions, which would likely be about why you missed the shift that led to your termination for violation of the employer’s attendance policy, including if there might of been other incidents, before the last that precipitated the employer’s decision.

Or, if the claim department in whatever state this is has to transfer any documents they may of received from the employer at the initial adjudication phase, such as written verbal, or written warnings, or an attendance policy.

Frankly, Christina, without knowing anything about your situation, I can tell you that when someone tells me their employer has said they will just not show up for a hearing to help the claimant, which virtually means they are willing to waive their rights to testify.

This is usually true whether they need to sustain, or rebut the burden of proof, my first thought is to ask if the employer may be counting too much, on the fact many claimants become their own worst enemy at a lower level hearing, by rarely taking advantage of what could otherwise be a strategic opportunity to argue appropriately to the issue used to deny their benefits, be it a voluntary quit without good cause, or a discharge for misconduct.

by: Chris

The answer as to whether your employer may be allowed to attend the hearing by phone, depends on what the state rules. And that often depends on whether the state allows for split hearings, meaning at least one interested party to the appeal hearing is allowed to attend by phone.

I used to make request for this type of thing often, if the direct witness wasn’t able to attend in person, or the hearing rep I could get hired for the employer, was located in a different state, than where the hearing was taking place.

Other than this, I can tell you the only state I worried the claimant would ask for the hearing to be changed from phone to IP was North Carolina, that regularly conducts phone hearings.

And all because NC had a procedural rule, or statute, that allowed for one interested party, to be face to face with their opposition at a hearing.

Chris

by: Anonymous

I have an unemployment hearing today. At first it was scheduled as a phone interview but I rescheduled as a face to face weeks ago when I contracted the flu and lost my voice. I checked my unemployment documents last night to see if anything new was added and saw that the employer sent a letter at 4:55 pm on Friday stating they could not be there in person but could dial in.

Since this is last minute change and I specifically requested a face to face will they allow this or will it be as if the employer did not show up for the hearing? I have yet to receive anything regarding a change and considering the time of day it was sent the appeals referee probably will not see the request until this morning.

by: Chris

Hi Jeffery

To clarify I’ve understood correctly, you’re planning to appeal a hearing decision affirming the initial claim denial of benefits, but because the employer didn’t show up, or phone in for the hearing that went forward because you filed the appeal, you think that may be a good reason to appeal a hearing decision?

Did I get the basis of your reason to appeal to a board of review (second level, or higher appeal authority) correct?

If I did, your reason for appealing to some perceived incorrect hearing procedural issue, will also likely not turn out well in my opinion, as you somehow lost a hearing you requested to present facts why your discharge shouldn’t be held as misconduct, although the employer wasn’t even at the hearing to sustain their burden to prove your guilt of work related misconduct.

The real question is what do you think the hearing officer did to you during the hearing that was not fair to you, or somehow was in disregard of your rights to due process during the hearing.

Chris

by: Jeffery

How’s it going, so I was fired on misconduct for answering my phone when I wasn’t near the area and was told to get out the way and let see the urgency and call back in break area.

So I appealed and the employer wasn’t at the hearing but it was started anyway. I’m going to appeal for that reason.

So my question is how do I go about this and have fairness, or there is nothing for me to do.

by: Anonymous

Hello,
I had my my Appeals hearing after reviewing the file I noticed the EDD rep who did the initial phone Investigation did not correctly document my reasons for walking off the job.

I walked off the job due to Retaliation, Harrassment and Intolerable working condition’s. Therefore I understand that based on my experience and what the EDD rep typed up, the employer wanted to appeal. I wrote a 9 page incident report documenting incidents that lead me to walk off the job. I know job abandonment is automatic voluntary termination.

I noticed the individual that was supposed to represent the company did not call in. I don’t want to assume that I automatically won the appeal.

If in fact I do lose, would it be possible to go straight to the labor board and possibly file a class action lawsuit due to mistreatment from the employer? In my department countless employee’s walked off the job as well.

Thank you in advance!

Hi,

I am not a lawyer, but as a non-lawyer person, I know your question has left the wheelhouse I work in, unemployment insurance benefits.

However, there are other labor laws in California and if you feel strongly about doing more than filing an appeal of a hearing decision to the EDD Board of Review, there’s nothing stopping you from investigating at the California Department of Industrial Relations other options you may have in California.

To do something about unemployment benefits though, such as when you voluntarily quit your job for reasons of fault you can prove should be held attributable to the employer is what that hearing your employer didn’t attend, was all about.

Chris

by: Anonymous

I gave my account due to a misconduct termination and explained the best of my ability of why it was not misconduct. My husband was present as an observer and also claimed that I did a good job of explaining my case. Employer was NOT present for hearing.

I was happy to discover that the judge ruled in my favor that my actions were not misconduct but his account of what I had said and my letter that I had submitted was slightly inaccurate. I don’t want to be branded as a liar or as providing inaccurate information. Do I correct this? Will this prompt an additional hearing from my employer? I don’t want to rock the boat. The judge mistakenly got some facts mixed up but I am confident that my recorded testimony was correct.

Hi there,
Are you seriously consider messing around and making an objection, to a board of review, about the hearing officer’s decision, when it reversed and allowed you to collect unemployment?

Well, know if it were me, I’d more likely be asking myself how wise a move like that would be, because I’d be more concerned the non-attending employer, might appeal the hearing decision and cite some good cause reason for why they didn’t attend the hearing, and ask for the hearing to be reopened, to address any perceived lie, that caused them to be found chargeable for the benefits you’re now receiving.

I’d also ask myself why the hearing officer restated my testimony in a way I know I didn’t testify to, which of course, could be heard, on the recording of the hearing.

Question, why do you think this could be used to brand you a liar, and who would do that to you, in in fact they would first have to read the hearing decision and know they can prove you were lying on the record?

Chris

by: Anonymous

I had a hearing today 1/2/2019 the employer didn’t respond to the telephone hearing after 15 mins, so the judge went on with the hearing.
They denied me because of misconduct but I appealed because it wasn’t the truth.

I’m in the state of south Carolina, so do you think it will go in my favor since they didn’t answer the for the hearing?

Hi,

It’s possible the hearing decision will reverse the initial determination and things will go in your favor this time, because the employer wasn’t at the hearing to sustain it’s burden of proving the reason you were fired for, was misconduct.

However, if I have a point for answering, it’s that winning by default of another party no appearing for the first hearing, may not be enough to make a favorable decision based on only one side of the story.. stick for good.

When I worked on behalf of employers and they couldn’t attend hearings, whether by phone, or in person, part of my job was to take steps to protect their rights to due process and therefore, I always formally requested a postponement of the hearing prior to the hearing and always, whether the employer’s reason for not attending a hearing seemed good, or not so good cause, to get a postponement, I did my best to frame any request to support a request to reopen.

Once the hearing decision came in, an appeal to a board of review, or commission was sent to request a reopening of the case back down at the lower appeal level and the postponement letter went with that appeal.

Generally speaking, if a reopening was allowed under such circumstances, it would be for an “additional” hearing just for the purpose of the employer to add their own testimony and/or evidence on the discharge, into the record.

But, I also checked any new hearing notice for an additional issue. “was there good cause for not appearing at the first hearing”.. because to be prepared for a hearing there are some issues that must be resolved first at another hearing, to know if testimony and/or evidence can be taken on the main issue, affecting unemployment eligibility.

Should this happen in your case, the employer managing to get your case reopened, it is just as important to appear for the second hearing, as it was the first hearing to maintain the first outcome, if in your favor.

by: Antione

They stated I violated employee conduct outside of work I followed the call out procedure and reported my arrest within the 72 hours that they wanted.

Your former employer actually has a policy saying that should you be arrested, you just have to report your absence due to being arrested within 72 hours??

Never heard of an employer attendance policy, or call off policy like that before.

Received your hearing decision yet?

by: Antione

Hello my employer didn’t show up for a hearing I got terminated working at a prison I was arrested and charge with domestic violence which they find out that wasn’t true my employer fired me because they stated it was employer conduct in policy telephone hearing they did not show up will I win or lose the appeal state of sc.

What policy did the employer say you were you fired for violating?

I’m not going to venture a guess about whether you will win, or lose. What you did describe above might be enough to lead me, a reasonable person to assume you may have actually voluntarily quit when you were a no call/ no show, because you were arrested and charged with domestic abuse, that never happened?

What I’m saying is I know it’s not unusual for some employers to say they terminated employment, when someone didn’t come to work and didn’t follow the call off procedure, but not calling, or showing up for work for two days in a row, is generally enough to argue the separation was a quit, not a discharge.

Chris

by: Chris

Hi Gail,

I’m going to call your attention to the precedent discussions about failing to appear for hearings.

Because I’ve actually had the experience of requesting multiple postponements for employer first hand witnesses who were legitimately, unable to appear for hearings on more than three separate occasions, I’m going to ask you, if you’d be willing to share the content of requests for ppmt you’ve found in the state documents you’ve received so far.

What we need to focus on, isn’t how aggravating this can be for someone collecting, or not, but the procedural perspective of the H.O. and whether they might be just giving you the short version of telling you like it is (no limits to reopening requests). without further explaining that to make that call, he/she actually has to take testimony from the employer about the non-appearance, to determine if it their prior non-appearances have been with, or without good cause.

The employer’s requests for reopening will be part of your claim record and therefore, because TX sends an amended document packet with each subsequent hearing notice, the employer requests should be included in the last two packets you’ve received thus far.

by: Gail

Chris

I’m in Texas

Working on finding an answer Gail. Will post another comment, hopefully with a link, when I find something more definitive than just my own disbelief, you were told there was no limit, except by definition, I know it ends when the state board dismisses one of those requests for reopening, or the hearing officer does when they take testimony about the employer’s good cause for not appearing for the prior hearings.

I also want to remind you that each new hearing packet you get from Texas, should rightly list the “non-appearance” issue on the specific page intended for listing the hearing issues.

by: Gail

My former employer keeps requesting appeals only to not call in for the hearings. Upon speaking with the hearing officer she said there is no limit on appeal request. Is this possible? The former employer has now missed 3 hearings.

What state is this happening in Gail?

It’s possible to keep requesting reopenings for non-appearance, but when a party has missed three hearings in a row, and the state keeps giving them another chance, I would think there had better be some unquestionable good cause reason for the reopening, otherwise, I’d begin to wonder if the state (specifically, the person who keeps granting the reopening) might be doing so, to feed a bias against an employer, or claimant.

This is why I ask what state this is happening in, because if some hearing officer told me there was not limit to granting requests for a reopening due to non-appearance, I’m the sort who would want to verify that by going in search of the rule of administrative law procedure that supports that sort of statement from a state employee.

by: Pamela

Hi Chris,

Thank you for your response. Yes, I can get very wordy when trying to get my point across. It makes sense what you are telling me. I didn’t look at it that way at first. When training it was done as a side by side, buddy jacked. Trainer (rep) is in the phone and on the computer, while the trainee listens and watches. We have never been advised of a time limit for training. Sadly, there is no documentation to prove I was only trained one day. But training has always been a big issue in this department. I will just to answer the questions as best as I can and let the officer know that it was definitely a lack of training to the beat of my ability.

Thanks again,
Pamela G.

Hi,

Because the burden of proof to discharge an employee is the employer’s, my advice to you is when you’re listening to the employer’s side of the story at the hearing (party assigned the burden of proof for the issue goes first) listen for elements in their testimony, you can use to push back to rebut they have met the burden of proving guilt of misconduct when you’re given the opportunity to cross examine the employer’s DIRECT witness with first hand knowledge of the alleged misconduct.

Remember that the point of cross examining an employer who fired you, is to argue validly, why the employer’s presentation of their case, hasn’t met the standard of showing through as preponderance of testimony and/or any evidence related to that descriptive definition of (which is close to most state’s definition of misconduct, if not the precise language used by some states.)

Training an employee to do a job an employer expects any employee to perform to some rule, policy, or specific procedural protocol for a new job, because training is the thing that make an employee aware of all those things, is naturally going to be the responsibility of the employer, whereas an employee who ignores doing their job to those standards of expectation intentionally,, is basically a key element needed to change an inadvertent mistake, (arguably caused by insufficient training) into something resembling something close to willful misconduct through a preponderance of the overall testimony and or evidence (which in some cases, may need to be objected to by a claimant, to keep irrelevant to the issue, or final incident, out of the record).

Questions you should ask the employer therefore, should probably closely relate to the training lie you say they told the state, and your job while cross examining is to discredit, by getting the witnesses answer to expose they may of actually embellished the length of training you were provided to do this specific call center job, which wasn’t your usual job, and therefore should of been considered an inadvertent mistake, vs. intentional work related misconduct.

Of course, it is effective cross examination of employer witnesses with first hand knowledge, or second hand information that may be hearsay, that is the reason I recommend hearing representation by a “professional”.

Good Luck Pamela
Chris

by: Chris

You did provide a lot of information but frankly, I thought a lot of it did more damage, in that I can imagine how a lot of what you told me, could be exploited by the employer’s rep to discredit you at hearing.

First, I wouldn’t advise stating outright at a hearing that the employer is lying.

But I would encourage you to seek other ways to prove that to be fact, on the record of the hearing and from my vantage point right now, the lack of training seems to be your best bet.

Documentation is what weights testimony as being more credible than just stating what you think, hope, will be accepted as fact by someone without knowledge of the job you did (hearing officer), nor the rules, policies and procedures your job was subject to while you performed it to the expectations of the employer.

Question for me is, do you have any other way to prove you only received one day of training, than just talking about it?

Does the employer possess some sort of documentation about the length of your training for this job, even if you may need to subpoena something? That you were fired by someone not your supervisor, doesn’t matter, if you were working in their department, and you broke an established rule, or protocol.

If gut feelings were enough to quasi-legally assign fault for you being terminated, then maybe I should mention mine and the central question that popped into my head while reading this short section of your story.

“I advised the supervisor for this department that I wasn’t ready. He wasn’t my sup but insisted on putting me on the phone. The process was when customer is transferred from other department after being vetoed I am to assist with payment or changing email address and sending email to reset password. Customers email address has to match in our system and on the website for the customer to be able to access his account to log in. Customer having trouble getting in his account. Called several times and frustrated. So I advised customer in a joking way that I will try to trick the system to create a mock password. Mind you (I assume you meant to type calls) are timed and are advised of a time limit and get customer off the phone. Also if we can’t fix the issue than ask for assistance or Skype. No one available to assist me at this time of my call. So that is why I decided to take matters in my own hands.

Really? You didn’t feel you’d been trained sufficiently, but took matters into your own hands to create a mock password for a customer because they got frustrated? Why did you break with employer procedures requiring you to get approval If you knew you had not been trained sufficiently to do this job?

In case you don’t see where that question could end up going, it’s what you did do for this customer that is capable of you proving you at least knew enough to trick the system, and that when you did that (with the customer’s SSN/DOB?) you also knew it often didn’t work anyway.

Misconduct means there is some level of knowing intent by an employee, to violate a rule, procedure, policy, directive they are aware of. You admitted fault while you wrote your story, because you also told me about what you knew you were supposed to do.

Whether there was any fraud, I don’t know. But I do know that word fraud is why your issue isn’t just regular run of the mill work misconduct, but the gross kind.

Chris

by: Anonymous

I am waiting for my hearing to appeal my denial for unemployment. I worked At a call center so all calls are Q/A’d. I had already been with the company 6 years. Was fired for gross misconduct. Said that I committed fraud on a call. I was trained to take these certain calls for less than 1 day. I advised the supervisor for this department that I wasn’t ready. He wasn’t my sup but insisted on putting me on the phone.

The process was when customer is transferred from other department after being vetoed I am to assist with payment or changing email address and sending email to reset password. Customers email address has to match in our system and on the website for the customer to be able to access his account to log in. Customer having trouble getting in his account.

Called several times and frustrated. So I advised customer in a joking way that I will try to trick the system to create a mock password. Mind you all fallas are timed and are advised of a time limit and get customer off the phone. Also if we can’t fix the issue than ask for assistance or Skype. No one available to assist me at this time of my call. So that is why I decided to take mattera in my own hands.

So, I out customers SS# in dob and create a mock password to get him into the system. I never gave password to customer. Reset email, sent email with link to customer to reset password. Moat of the time customer will call back because they still cant get into account. Of course rhis customer did call back. So after a week I was fired. I was never written up, no final no verbal. In the 6 years in was there never any issues. In this department 2 years.

Always top 10 or top 3. I was denied for unemployment. Just received my packet from unemployment. My old company lied on the documents on the questions. Said that I was trained 5 days and that I stated I was ready to be out in phone. Not true. I had asked several times for notes or documents of examples to show me how to conduct my conversation. Never provided. Never given the tools or any documents to assist me. Company also lied about this to unemployment. During my hearing can I state that the company is lying and that I don’t think that my firing was fair nor the denial of my unemployment? Sorry so long but needed all info to understand. Thank you. Any information greatly appreciated.

by: Anonymous

This is for the state of Georgia. I did not qualify for FMLA because I had not been employed for the required time frame of 12 months. However, I did meet the requirement of 6 months for short term disability. My doctors suggested a different course of treatment since I was not responding to medications. The treatment, once approved by insurance, is 4-6 weeks long, and is outpatient- meaning I would have to go into the doctor’s office 5 days a week.

The treatment is called Transcranial Magnetic Stimulation. The level of my depression and anxiety is debilitating and the fact that they recommended this level of treatment only further confirms my inability to work. I could have continued to extend my leave but the fact that I had no definitive time frame of when or if I will recover, I felt it was only fair to give my boss two weeks notice to find my replacement because my condition has gotten so severe.

My doctors didn’t flat out tell me “quit your job”. I felt it was the right thing to do in order to put my health first and because I knew for a fact I was unable to return in the near future.

Hi again,

I understand. You’re were being considerate and that is commendable, but that doesn’t mean that behavior equates to getting benefits, afterwards.

It does, however, create your problem, and a valid reason for why the employer responded the voluntary quit wasn’t their fault, because you didn’t inform them and give them a chance to help save your job.

The state of Georgia could very well be rule in the decision the quit was for good personal cause, but that is not how one meets their burden, in that they can meet the requirement of how UI law works when someone quits due to health reason.

Generally we can find a provision, or a regulation requiring a voluntary quit for health reasons without exhausting medical leave and/or disability, to be prompted by an objective decision to follow the advice of a professional, e.g., a doctor.

You seem to have indicated you do not yet feel able to work anywhere, due to depression that is debilitating, but until/unless you can get that opinion backed up by your doctor, it’s not objective, because it’s not predicated on the advice of your doctor.

My thought is, if I have assumed correctly, even if you were to win this appeal hearing on the separation issue, you could expect to still be disqualified from receiving the benefits, because you say you cannot meet a basic condition of collecting regular unemployment benefits, which is to be actively seeking work and ready, able and available to accept suitable work, if it’s offered to you, in any week you claim benefits.

by: Chris

What state is this happening in?

No, I don’t think an employer using a third party UI claims administrator is what makes all the difference between a claimant winning and losing. Because an employee, or a claimant can choose to focus on the relevant facts, to have them well prepared with the added weight of relevant documentation, to prove, or rebut the burden of proof, related to the unemployment insurance hearing issue.

You must prove fault for quitting as attributable to the employer, even when quitting for health reasons.

Generally, when an employer chooses not to extend a medical leave, the burden of proof is effectively, shifted to the employer to prove misconduct, and we all should know someone who continues to be ill enough to not be released to work, even with restrictions and the need for work accommodation, is not something considered willful misconduct.

Questions:

I don’t know if it is safe for me to assume your STD leave was also being protected by an FMLA leave. (Family Medical Leave Act)

If your job was protected by FMLA, when you decided to quit your job a month into your leave, did you quit because you had exhausted all of the maximum twelve weeks FMLA can protect a person’s job in one year for those who work for employers with more than fifty employees (or in some states, less than fifty)?

Or did you make a personal choice not to ask for an extension of leave, up to include all of the 12 weeks when your doctor wouldn’t release you back to work on the leave’s RTW (return to work date)?

Did you quit your job on the advice of your doctor? Because that might make simple work of knowing where you should focus more.

If you did quit on the advice of a physician, did you make your employer aware you were quitting on the advice of a physician, thus batting the burden back at them?

If you did inform the employer, did the employer ask for the necessary medical documentation to make a decision about extending even an exhausted FMLA leave?

Or, ask if you needed an accommodation, to return to work?

And maybe now would be a good time to ask if you were denied unemployment because you quit without good cause, or because you are not able, or available to work anywhere, for any employer, at least until you can lift this sort of conditional eligibility denial, with a document from your doctor fully releasing you, or with some restrictions requiring a work accommodation, to make you conditional eligible to finally collect?

FMLA, not STD payments that supplement wage loss too, is at the heart of the burden of quitting and to not “exhaust” efforts that would enable a person desirous of saving their job wait to quit.

When people quit before exhausting the protection of FMLA, it translates to me, to choosing not to wait until the appropriate time when the burden of proof for ending the employment, more, or less naturally shifts to the employer, who need to fill a position they’ve been saving for someone who can’t come back tot work yet.

by: Anonymous

Hi, I recently took a short term disability medical leave of absence due to severe anxiety/depression. My condition has only worsened- so I voluntarily quit and was denied unemployment because my previous employer stated I quit for “personal reasons” and “I did not try to save my job before quitting”.

Needless to say, I appealed and to my surprise, (I worked in HR) they are using a third party for the hearing vs the HR manager which is not usually the case. Is the fact they are using a third party any indication of the outcome of my appeal? My reason for quitting was not personal, but medical and I have proof considering I was paid short term disability for a month- after they received proof of my diagnoses from my doctors.

by: Anonymous

Hey I had an appeal hearing today and my employer did not show. I waited on the phone only to hear the judge say, there was no hearing today because the employer didn’t show. She never got an statement from me, never heard my side of the story, She just told me to keep filing my weekly claims. What happens from here???

Three things could of helped to inform me, so I could reason why the hearing didn’t go forward.

What state held the hearing?

Was the issue looking into a voluntary quit, or discharge?

Who had to appeal the determination, you, or the employer?

But since I know how to be the guessing type, and not in the position where I know I need to be the verify, verify, verify type.

I would say you initially received benefits after being discharged. The hearing not happening would then make sense as an appeal made by the employer. And because it’s the employer who must MEET or SUSTAIN the burden of misconduct, and would be the party expected to go first at the hearing (party assigned the burden generally goes first), but there was nothing put on the record by the employer for you to rebut!

So, depending on which state it was held in, going forward, could of violated your rights to due process, procedurally speaking.

However, this doesn’t mean the employer didn’t do their own due diligence to make a pre-hearing request for a postponement prior to the hearing. I once did that a lot for employers because it literally is what can protect an employer, or a claimants right to due process when they appeal the dismissal and request a reopening from the board of review.

Of course I would expect in most states (meaning not all) the new hearing notice to have the additional issue of good cause for the non-appearance at the first tribunal hearing.

It’s not uncommon for hearings to go down this way, however, it’s more common for employers, not claimants to request reopenings, or even know they should request postponements and if denied, to not attend the hearing, because that would be like waiving your right to the postponement, which attempts to provide good cause for a ppmt.

And if this is your case and the employer manages to get the reopening, I would then make sure the new hearing notice had the additional issue of good cause, or not, for the non-appearance.

I worry this is more than anyone cares to know, but I always hold out hope, some will read and get whatever point I might be trying to make, about the processes AND HOW EVEN PROCESSES VARY FROM STATE TO STATE.

by: Anonymous

Hi I would like to know how do you feel about this did I win or no….My employer said I voluntarily quit after not giving me any post/site to work at for 6 months and before then they try to give me a pay rate of 9.50 after working for 10.50.

At the hearing they didn’t do there questionnaire or show for the hearing.

I showed pay stubs and copies of fixed checks and how I was gonna lose 9-10% of pay for pay cut.

I also showed them write ups that they wrote, but supposedly do away. I also showed them checks that I called about and also, that I called non-stop, to see if there was work and was ignored. Only person I spoke to was human resources and she told me you know what they trying to do to you ( make me quit) but I stayed positive and asked if they were still hiring and she said we’re always hiring.

Told the ref at that point it was out my hands

Hi Anonymous,

I hope you went so far as to opt into notifications, so you might read the answer.

Are you sure that HR person wasn’t just toying with you, because what they told you, that someone was trying to get you to quit, doesn’t make sense to me, because she may know full well, how to score points at UI hearings, especially voluntary quits where the employee doesn’t know how to score.

Even I might of recommended to an employer to DNA (do not attend) this hearing.

Why, because what you told me, leads me to believe you just might have refused an offer of suitable work.

One point I’d like to make first is that I don’t know the name of the state your hearing took place in, but because you referred to the tribunal hearing officer as the “ref” I might guess PA, since I know that’s what they still call hearing officers there.

I actually think you were on the right track to argue you had good cause to voluntary quit, that being, you quit due to a SUBSTANTIAL change to the terms and conditions of your employment. Which is generally initiated by an employer and in your case, when they offered you continuing work at a dollar less per hour.

However, the problem I see with this argument, is you told me you proved the pay reduction to be around 9 to 10 percent of your previous pay.

Generally speaking, because upon occasion I have read state precedent decisions, that amount, equating to a substantial change in pay to equate to good cause doesn’t sound to hot for your chances, not to mention you were also trying to argue you didn’t quit, by explaining you had called and been ignored for six months while you kept calling after you refused a dollar less per hour.

I’m also puzzled why you brought up the write-ups.

I assume you meant those reprimands should of no longer been counted against you, per some employer policy, but it’s still an argument that could be more useful, if you had actually been fired instead of refusing an offer of continuing and arguably, suitable work.

Mentioning you had been written up seems irrelevant to me, unless the plan was to win a hearing focused on the burden of the moving party to end the employment relationship for misconduct.

Which of course would go to how you were fired for something other than work related misconduct.

Chris

by: CC

Hi, I had my appeal hearing yesterday, my employer didn’t show. I quit my job due to impartiality and unfair treatment, I work in health care so asked my employer to move me to another case. I actually asked him twice to move me. he’s a very small company and said no, he had nothing for me, and told me to separate my emotions from my professionalism. Anyway, I gave testimony, but don’t know if I won?

Hi, I couldn’t say either if I think you might win, or not. But to do that, it’s because I know there would need to be more discussion that clarifies the conditions of why you asked to be moved to a different case, to determine if the employer saying no twice, might be argued as being an unreasonable response.

Which is precisely why I offer my services as a coach to offer guidance to those who can’t afford representation that knows how to win an unemployment appeal hearing, whether the employer attends the hearing, or doesn’t show up, but often still manages to get the appeal reopened by appealing a hearing decision explaining why they didn’t appear due to some good cause, just to finally get their testimony, and or evidence into the record of the hearing.

Of course a claimant can do the same thing to get a case reopened, if they think they have a good cause reason, for not appearing at a lower level appeal hearing.

Chris

by: Anonymous

Good morning, I filed for benefits previously and was denied for failure to prove voluntary quit, which I never quit in the first place. I was fired while out on STD due to a company policy stating after 90 days of leave they automatically terminate employment.

Well I provided no documents the first time and lost. I provided emails showing me reaching out to HR about me returning to work, numerous emails. They terminated me by mail termination effective September 15th. I was still on STD at the time and it didn’t end until November 2, the examiner said he didn’t need proof of that because it ended after I was terminated. I told him I was being honest about it, I thought I sent a letter from STD but he said he didn’t have it. He said he doesn’t doubt my honesty because I swore and was under oath. The company did not show for this phone hearing and was given a 10 minute grace period. Do you think I have a good chance, I’m in Maryland.

Hi Anonymous,

It sounds to me like a case I’d say, had a good shot at you winning, or in other words, a good shot an erroneous initial denial would be reversed on appeal, so you can finally start collecting benefits after being discharged for something other than misconduct because you couldn’t return to work at the end of ninety days.

Too bad people don’t actually heal per the requirements of their employers, or we might never be allowed to get sick in the first place.

I think you have a good shot because whether your employer had to comply with the FMLA (family medical leave act) or not, your termination wasn’t for anything that would fit with all that goes into defining what work related misconduct is, but in truth, because you simply weren’t able to do your job when their policy said you had to be ready.

You said this was confirmed by the fact you were on a medically documented short term disability leave that extended beyond the employer’s policy of ninety days and the date they terminated employment.

An employer who has less than fifty employer is not subject to the rules and guidelines of the FMLA where an employee can’t be fired until twelve weeks of leave per year are exhausted.

In fact, an employer with less than fifty employees, can fire a person merely because they get sick, or stayed sick too long, for even a week. But if that person then files an unemployment claim it would not be crazy for the employee to assume their employer might fight benefits by using a common strategy to UI claim where health is a major factor.

Others reading this might also recognize that common response that suggests the claimant wasn’t actually discharged, but voluntarily quit when they failed to return to work from a medical leave of absence. Oddly, this is often enough for an initial denial, but may also fall apart, if the claimant appeals, and knows enough to have some sort of documentation submitted into the record to disprove, or rebut, a voluntary quit to literally prove the circumstances that explain it was a discharge.

And if I need to state my position again, when an employee, document, document, document, as if you might have something to prove one day.

The reason an employer not showing up is something I often ask about, is because I know what I used to do for employers and that was to request postponements for employer witnesses, prior to these hearings on a daily basis. When my request was denied, I also knew S.O.P was to use that request I mad for postponement, to get the hearing reopened to get the employer’s testimony on the record, albeit I also knew when I should be worried for the employer, who sometimes didn’t understand what a non-appearance issue could do if the failure to appear at the first hearing, really wasn’t for a good cause reason, or that which was good enough to of actually had the first hearing postponed.

It’s just my opinion that it is all the procedural rules and regulation a state unemployment department may have that claimants and employers alike don’t know about that really can get them, both coming and going.

I think you’re in good shape for a reversal though, based on what you told me about what did happen at the hearing.

All the best,

Chris

by: Anonymous

I was discharged for alcohol fail. I was made to go to the property to be checked by the nurse for a health check-up. My employer told me to file for unemployment. He said you might get denied, but appeal it and I will not show up for the hearing. Will I win

by: Anonymous

I had an appeal hearing today but my employer didn’t show nor was there a call in . The letter that was sent out by the UI judge states that they were required to be present or call 48 hours in advance with the name and number of person representing them . I was asked questions and have an honest answer. The judge seemed surprised by my answers ( and shocked) and said she had nothing further to ask . It was a 15 minute process. Does this sound like it is in my favor or no.

Seriously Anonymous, there would be no way for me to make an informed guess as to what you’re asking, because I don’t know what you testified to, that shocked the hearing officer.

If you want to elaborate, feel free.

by: Anonymous

I quit being managed out. Caused me to go on fmla from stress. Employer did not show up for hearing.

And, your point is?

Chris

by: Anonymous

I had a appeal hearing for my denied unemployment in the state of TX and my employer did not show for the conference call hearing. Do I automatically win? Will my unemployment be automatically approved?

Question first: Were you initially denied due to a voluntary quit, or a discharge for misconduct?

Sort of important for me to know anyway, if you really want me to give you some sort of answer to your question. What I know is the hearing was held on your appeal, but don’t know if the issue was to find if you had good cause to quit, or your employer had good cause to discharge you for misconduct.

Either way, winning is not guaranteed, merely because the employer failed to appear.

Who knows, they might have requested a postponement, but the request was denied. In this situation, I would expect an employer to request a reopening, if the hearing decision were to go your way.

Chris

by: Anonymous

I was laid off in December 2014. filed for unemployment, got denied because the employer who laid me off wasn’t liable. under the base period laws, my base period is July-December of the previous year and Jan-June of current year of file date. Which means my employer n that time would be responsible for my unemployment benefits. I quit that job 10 months before i got the job that laid me off. Will i get benefits?

Your comment hardly has a thing to do with the subject of the question you left it under.

But, what state are we talking about? Or you can just check the voluntary quit disqualifications for your state in the non-monetary chartbook at the USDOL.

I link to the page with all the state comparison charts on the unemployment law page .

The monetary chartbook explains base periods and qualifying wages in a BP

by: Anonymous

I just had a hearing yesterday and my employer did not show up. I gave my testimony and submitted a statement of all the events that had taken place. Will my employers see these statements? Right after the hearing my employer tried to contact me as well.

Hi,

They will see the documents if they manage to get a rehearing and you submit them again.