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NY Unemployment Determination Policy

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Geyser12

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

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

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

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

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

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

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

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

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

This is absolutely fantastic! Thank you. There is one question that I still haven't seen answered....Are we starting all over at this hearing or will all the documentation and notes for the determination be available at this hearing? I don't like to assume, but they are the whole reason for my appeal.

Seems very cut and dry....thanking you for simplify everything in such a comprehensive manner. You just saved me weeks of compulsive thinking!
 


Geyser12

Member
Also, if and when they see I have proof I called in on those days and the procedures were not violated can they present a new reason for my termination...I am thinking they will say, "Well she violated this procedure too, we just didn't mention it."

I guess they can say what ever they want. Will crying help my case? ~ Joking.
 

commentator

Senior Member
You are "starting all over" in the sense that you are presenting to a different person. What you said when your original claim was taken, your claim statement, which answered the questions about why you are not working there, will be on hand for all to read. Your employer's response, such as the so called termination letter which you did or did not receive, will be on hand.

If they want to present other documentation, or other evidence related to the case, they must prepare a copy for each of the parties. If you come in with phone records, they'll want to make copies for each of the parties. (So it's a good idea to black out anything you don't want to give others, keep only the related calls and numbers)

And yes, at this hearing, they could introduce evidence that you on your last day brought a gun to work and shot the company dog, if they want to. As to what this would do for the believability of their case, what do you think? The reason they gave in the original hearing is extremely important, and is what the hearing officer in this hearing will be interested in. Because they did not see fit to bring up these other issues then, when they were asked, "What were the circumstances under which this person left this job?"

Remember what we are telling you, misconduct is something you did that you knew or had reason to believe would lead to your termination, and yet you chose to do it anyway. KNOWING IT WOULD LEAD TO TERMINATION is huge. It must have been something in your power to control.

They are going to say that by taking off three days, you knew you would be terminated, and thus the three day absence meant you had quit the job. Be sure to be specific that you did not intend to quit the job, that you did your job to the best of your abilities, and that you were not in any way intending to leave the job.

By the way, if you and your co workers were getting pissed off about how much time the boss' son was taking off, and decided you'd take time off to pay him back or teach him a lesson, I wouldn't mention that at all in this hearing. As we've said, how they have treated others is important to your case only in that it may have led you to believe that you would be okay to take the time off, and since there was no strictly enforced company policy. In your whole time there, did you ever see or here of another employee being terminated for a three day absence? Did you ever have an issue with an absence before? Had you ever been warned that missing more days might cause your termination?

Crying doesn't help. Being the professional in this situation, instead of the whiner will work much better. Being brief and succinct is a plus. Looking professional and speaking quietly and without drama helps. We repeat, you do not have to defend yourself against every point they bring up or try to make. Your story about why you are terminated has not changed from the beginning. That is what makes it very believable. Keep it that way.

Though they may try, the employer cannot terminate someone using the "piecework quilt effect" in that you cannot cobble together three or four reasons and make a valid misconduct reason to terminate, they need to have to have one strong central reason and stick with it to keep the claimant from being approved. Documentation helps, too. If they say you quit, where is your letter of resignation? Where is your saying you quit on the unemployment paperwork you originally completed? Just tell your story. Do not try so hard to prove them liars.

Remember to keep up with your weekly certifications. Let us know how it works out. If you do not get your date for a hearing soon, call the appeals tribunal and make sure they haven't overlooked you somehow.
 
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cbg

I'm a Northern Girl
I just want to point out two things that don't really affect anything for the OP any more, but might be important to remember for the future if something similar happens again.

1.) It would not be the first time someone was willing to testify at a UI hearing when she talked to you, but refused to do so when it came right down to it. You've acknowledged that you don't need this person this time and that's good, but no matter how certain you are that she'd be willing to risk her job because she's already got another one, keep in mind that other people have also been that certain that their co-workers would support them and got thrown under the bus when it came right down to it.

2.) NEVER assume that because you didn't see any action taken, no action was taken. Unless you work in HR AND you have access to people's personnel files, you don't know that nothing happened to an employee who took several days off; you only know that whatever action was taken wasn't public. They weren't fired or suspended, fine. That doesn't mean they weren't given a warning (either verbal or written); or had a privilege taken away; or made ineligible for a pay increase or bonus; or will be assigned to work on a holiday. Oh, you asked them and they said nothing happened? What makes you think they're telling you the truth? Why should they? Why would they? (FYI I DO work in HR, and I wouldn't know about a disciplinary action that wasn't publicized either. I only have access to a small portion of the employee file, and it's not the part that relates to discipline.)
 

Geyser12

Member
In your whole time there, did you ever see or here of another employee being terminated for a three day absence?

No.

Did you ever have an issue with an absence before?
No, if I even thought I would be a minute or two late I would call.

Had you ever been warned that missing more days might cause your termination?
Absolutely not. My phone bill reflects my boss tried to call me twice, but there were 0 min and 0 secs, so he didn't leave a message to that effect (or affect...never could get those right) either.
.

You and cbg have been extremely helpful, thank you. I called today just to make sure they received my request for a hearing (my 30 days are almost up) and they did receive it, but don't have me on the schedule yet. Will let you know how it goes...and happy holidays!

Oh, cbg**************.BelizeBreeze says "Hello".
 
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LdiJ

Senior Member
You and cbg have been extremely helpful, thank you. I called today just to make sure they received my request for a hearing (my 30 days are almost up) and they did receive it, but don't have me on the schedule yet. Will let you know how it goes...and happy holidays!

Oh, cbg**************.BelizeBreeze says "Hello".

Wow...that's a blast from the past.

Just one little thing that I would like to add...

Its very common for employers to "invent" things or embellish things in order to challenge a UI claim. Some do it automatically, as virtually a policy. Its not uncommon for those same employers to fail to show up for an administrative appeal hearing when they know they cannot prove their claims. Some employers will take the shot that you will roll over and play dead, and not appeal, but will not want to waste their own time with the appeal hearing if they are pretty sure they are going to lose. With some small employers its also a desire not to be publicly embarrassed. With some, if they are truly busy, its a desire not to waste a morning or an afternoon on the process, if they know that they lied on the paperwork. Others will show in order to take it to the bitter end.

So...there is a small chance that you will end up winning the appeal by default. Absolutely do not count on it, but don't be surprised if it happens.
 

Geyser12

Member
Wow...that's a blast from the past.

Just one little thing that I would like to add...

Its very common for employers to "invent" things or embellish things in order to challenge a UI claim. Some do it automatically, as virtually a policy. Its not uncommon for those same employers to fail to show up for an administrative appeal hearing when they know they cannot prove their claims. Some employers will take the shot that you will roll over and play dead, and not appeal, but will not want to waste their own time with the appeal hearing if they are pretty sure they are going to lose. With some small employers its also a desire not to be publicly embarrassed. With some, if they are truly busy, its a desire not to waste a morning or an afternoon on the process, if they know that they lied on the paperwork. Others will show in order to take it to the bitter end.

So...there is a small chance that you will end up winning the appeal by default. Absolutely do not count on it, but don't be surprised if it happens.

I was thinking the same thing. I just printed out my termination email an realized I replied 11 minutes later stating,

"Oh my gosh, Brian(my Boss), why are you doing this? What did I do wrong?" He never replied.

That may help in showing I did not intentionally violate procedure.

In regards to BB, I use to post as Snostar in the custody forum for years, we became very close.
 

Geyser12

Member
Also, not that I intend on bringing this up at the hearing but I am pretty certain I was laid off.

It's been two months and they have not hired a replacement. They took out a line of credit and a loan just prior to firing me. At the end of October I was due 5k increase in salary and would have qualified for 2 weeks paid vacation and this holiday would have received 7 days paid when the office was closed.
 

cbg

I'm a Northern Girl
The fact that they have not hired someone to replace you yet does not automatically characterize your leaving as a layoff.
 

commentator

Senior Member
One little further note. It wouldn't hurt to work this information about the reason you believe you may have been terminated (how the company appeared to be struggling, and how you would have very shortly been due for an increase in salary which it appears it was going to be hard for them to come up with) if they will let you. Sometimes the appeals referee will say this isn't relevant, but if you can get it in, it certainly, we both know, speaks to their motive.

But don't call it a "lay off" and don't try to argue that you've really been laid off. Because you haven't. The company did not choose to use this term. They terminated you. Whether they should fairly have laid you off if your services were no longer needed or affordable, and you had done nothing to deserve a firing, which implies misconduct, and you did not quit, which you can testify to repeatedly, and they have no evidence of, they didn't. They lied, they said you quit, or were fired for cause, or whatever. As it has been pointed out, they can say just about anything.

But one thing is, even if the employer doesn't show up for the hearing, you still have to present your case. You do not automatically win the case. You just make your case, the statements the employer has previously made are read in, and a decision is still made which you have to wait for and the appeals officer still has to make.

Needless to say, you certainly do have a much better chance of winning if the employer does not show up. I'm just saying they don't slam the door and say, "Okay, you're approved! This turkey didn't show!" I have seen hearings where the employer didn't show and the claimant was still denied. If the termination was due to something that clearly misconduct, and it's not an approvable claim they're going to find for the employer no matter what is said or done in the hearing or who shows up or doesn't show up. In fact, even if neither of you shows up, and no one called to be rescheduled, they'll still read in the material and give a decision based on what they have at this point.

Watch your tendency to argue and over detail. Listen very carefully to the appeals officer and answer all questions they ask thoughtfully and briefly.

Good luck to you, let us know how it comes out. Keep making those weekly certs, and I hope your new job search is successful soon. Doing better is the best revenge you can have on a poor quality employer.
 
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Geyser12

Member
Watch your tendency to argue and over detail. Listen very carefully to the appeals officer and answer all questions they ask thoughtfully and briefly.

Good luck to you, let us know how it comes out. Keep making those weekly certs, and I hope your new job search is successful soon. Doing better is the best revenge you can have on a poor quality employer.

Stand up straight, look them in the eye, think my answer through before it comes out of my mouth, be truthful, don't forget to breathe and don't point fingers....I can do this successfully.

I am not a vengeful person but I do agree on the second statement....Right now I am working on developing a nation wide company with John McAfee!

Thanks again!

cbg...I'll let the cranky old man know next time I talk to him ;)
 

Geyser12

Member
I Just got a letter from the department of Labor stating:

"Your request for a hearing has been received. Adjudication Services Office will review your file before your hearing. If the Commissioner's determination is changed you will be notified. If there is change, the file will be sent to the Administrative Law Judge Section to schedule a hearing before an impartial judge. You will be notified of the time and place of the hearing. You may obtain representation now to prepare for a hearing."

Sounds like my determination could be changed prior to even having a hearing. I can't see how is would be changed without my phone records ect.


It also states under, "What are my rights at the Hearing?"
"Ask questions of (or "cross examine")opposing parties and adverse witnesses"

I thought we couldn't ask questions of one another....thought I saw that in a previous post, and was happy that was the case.
 

LdiJ

Senior Member
I Just got a letter from the department of Labor stating:

"Your request for a hearing has been received. Adjudication Services Office will review your file before your hearing. If the Commissioner's determination is changed you will be notified. If there is change, the file will be sent to the Administrative Law Judge Section to schedule a hearing before an impartial judge. You will be notified of the time and place of the hearing. You may obtain representation now to prepare for a hearing."

Sounds like my determination could be changed prior to even having a hearing. I can't see how is would be changed without my phone records ect.

Yes, it could be changed. They would review it to make sure that no clear cut errors were made. Since yours is a he said/she said situation, its unlikely that they would find a clear cut error...but its not impossible.


It also states under, "What are my rights at the Hearing?"
"Ask questions of (or "cross examine")opposing parties and adverse witnesses"

I thought we couldn't ask questions of one another....thought I saw that in a previous post, and was happy that was the case.

While you probably do have that right...its still not the same as a trial.
 

commentator

Senior Member
They're not likely to change your decision before the hearing. They will review it to make sure the material is in place. Don't get hung up on that initial decision and getting to present your material. That will be in the hearing. So if they did change the determination, which was not in your favor, that'd be a good thing, right? But I'm betting they wouldn't.

In regards to cross examination, they will first ask you to tell your side of the story. Then they will give the other party an opportunity to explain their side of the story. (Or vice versa, them speaking first, then your testimony)Then you will be allowed to question them, then they will be allowed to question you. The appeals referee will be able to question either of you at any time. This is quite structured and will all be recorded.

But once again, do not see this as your opportunity to go all crazy with proving what a liar the employer is. And remember, its not necessary that you beat to death any issues they bring up regarding your conduct past and present. And that they may not even show up at all.

Say you asks them, "Did you not speak to me on the morning of such and such and so?" and they say, "No!" and you say, "What about this phone record that shows we had this conversation?" and they say, "I did not speak with you! You faked these phone records!" So what have you accomplished? They can lie in answer to your questions. They can refuse to answer your questions. Nothing much is going to be accomplished by masterful cross examination. As we said, repeatedly, this is not a court of law. And it is cut and dried, and designed to be simple, not too complicated for the average claimant to follow. It will be okay.
 
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