How can you file for unemployment when your lawyer says not to speak about your issue

[russharv63]

What is the name of your state (only U.S. law)? Virginia
I was let go from work on December 20, 2017 because I got a criminal charge on the job. I went to see a criminal lawyer and in my agreement with him I can not discuss my case. I want to file for unemployment benefits. If I file I will have to discuss with the Virginia Employment Commission the details of my criminal charge that I got while working in order for them to determine if I qualify for unemployment benefits or not. I would be breaking my agreement with my lawyer if I discuss my case with them. I don't know how I can get around this problem. I could wait to file for benefits after my preliminary hearing which is this March 2018 but almost three months would have gone by. I am hoping to get the charge dismissed at that time. I am hoping to prove I did nothing wrong if I can get the charge dismissed. Is it to late to file by then? If I file now I would be going against my lawyers agreement to not discuss it with anyone.

 

[cbg]

What did your lawyer tell you to say to the Unemployment office?

 

[xylene]

This is a question you need to ask your lawyer.

Your lawyer may have been unclear, or he really may not want you to file.

 

[FlyingRon]

Lawyers will universally (and would good reason) tell you NOT to talk to anybody about the pending charges but them. The communication between you and the attorney is privileged and can't be used against you, but anything you say to the VEC could actually end up being so used. You should definitely ask him, but if I recall the initial application does not ask about criminal charges (either convictions or those pending). If they ask about any details about your case, you certainly should defer to your attorney.

 

[HRZ]

AS posted by others...you need to ask your attorney ...and play the cards the way he or she calls them .

 

[commentator]

I disagree. Anything you say related to unemployment insurance cannot be used against you in any other agency decision, or hearing or entity or in court or as part of any public record. The unemployment system is a closed system, which means that information is available ONLY to you or to the employer. So it cannot be used against you in civil or criminal court cases, etc. However, your attorney is not likely to be very up on unemployment law and of course they'll advise you not to discuss the case with anyone.

If you have been terminated from your job due to a work related misconduct reason, that doesn't bode very well for your chances of being approved, depending on what proof they have that you were actually committing that work related misconduct, which they would have to reveal to the unemployment system if they want to keep you from receiving benefits. Your receiving benefits would cause their unemployment tax rate to increase, they may or may not want to fight your receiving benefits within the system, but in any case, what happens there, stays there.

For example, if you file a claim, saying that "On Jan 2, 2018, I was terminated by my employer for supposedly embezzling $40,000 from their accounts. I did not do this." and the employer is contacted, and they did not want to show their information to the unemployment system which proves that you were committing this work related misconduct, then you'd likely be able to be approved and draw. Many times, the company will simply not fight in a situation like this, will wait until the criminal court case to throw their proofs out there and hopefully convict you. You can't of course, draw unemployment benefits if you are unavailable for work, as in incarcerated. But it's worth a throw down. There will probably be significant time that passes between your firing date and the court case. You will need something to live on during this time. If you are truly being fired for a work related misconduct reason that is valid, and they've got you red handed, your chances of being approved for unemployment benefits, based on the most cursory sharing of information by the employer is probably going to keep you from drawing. But.....

....even if they submit buckets of proof to the unemployment system, actual records and video tape of you committing this crime, this does not mean it can be used against you in any other venue. You're not saying anything to the unemployment system that you won't be saying in court, as in "I am accused of this, I did not do it!" You don't need to go into excuses, proofs, arguments for your side that you'd care to make. But even if you did, they'd never go outside the unemployment system, which is closed.

 

[xylene]

I disagree. Anything you say related to unemployment insurance cannot be used against you in any other agency decision, or hearing or entity or in court or as part of any public record. The unemployment system is a closed system, which means that information is available ONLY to you or to the employer. So it cannot be used against you in civil or criminal court cases, etc. However, your attorney is not likely to be very up on unemployment law and of course they'll advise you not to discuss the case with anyone.

If you have been terminated from your job due to a work related misconduct reason, that doesn't bode very well for your chances of being approved, depending on what proof they have that you were actually committing that work related misconduct, which they would have to reveal to the unemployment system if they want to keep you from receiving benefits. Your receiving benefits would cause their unemployment tax rate to increase, they may or may not want to fight your receiving benefits within the system, but in any case, what happens there, stays there.

For example, if you file a claim, saying that "On Jan 2, 2018, I was terminated by my employer for supposedly embezzling $40,000 from their accounts. I did not do this." and the employer is contacted, and they did not want to show their information to the unemployment system which proves that you were committing this work related misconduct, then you'd likely be able to be approved and draw. Many times, the company will simply not fight in a situation like this, will wait until the criminal court case to throw their proofs out there and hopefully convict you. You can't of course, draw unemployment benefits if you are unavailable for work, as in incarcerated. But it's worth a throw down. There will probably be significant time that passes between your firing date and the court case. You will need something to live on during this time. If you are truly being fired for a work related misconduct reason that is valid, and they've got you red handed, your chances of being approved for unemployment benefits, based on the most cursory sharing of information by the employer is probably going to keep you from drawing. But.....

....even if they submit buckets of proof to the unemployment system, actual records and video tape of you committing this crime, this does not mean it can be used against you in any other venue. You're not saying anything to the unemployment system that you won't be saying in court, as in "!" You don't need to go into excuses, proofs, arguments for your side that you'd care to make. But even if you did, they'd never go outside the unemployment system, which is closed.

With all respect to your knowledge, you are advising a criminal defendant to breech a contract with their defense attorney, who may not see such an action favorably whatever the outcome.

"Discuss the case with no one" vs "You can discuss with someone if there will be no easily foreseeable consequences."

How do you know the defense strategy will be "I am accused of this, I did not do it", especially if the motion for dismissal is not accepted.

 

[Taxing Matters]

I disagree. Anything you say related to unemployment insurance cannot be used against you in any other agency decision, or hearing or entity or in court or as part of any public record. The unemployment system is a closed system, which means that information is available ONLY to you or to the employer. So it cannot be used against you in civil or criminal court cases, etc. However, your attorney is not likely to be very up on unemployment law and of course they'll advise you not to discuss the case with anyone.

I disagree. At least in Virginia (which is the state indicated by the OP) the statute is not as air tight as you paint it. The statute, read literally, only prevents the Commission from disclosing information provided by the employer for the unemployment hearing. Specifically, the statute states:

A. Each employing unit shall keep true and accurate work records, containing such information as the Commission may prescribe. Such records shall be open to inspection and be subject to being copied by the Commission or its authorized representatives at any reasonable time and as often as may be necessary. The Commission may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which the Commission deems necessary for the effective administration of this title. Information thus obtained shall not be published or be open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing the employing unit's identity, except as the Commissioner or his delegates deem appropriate, nor shall such information be used in any judicial or administrative proceeding other than one arising out of the provisions of this title; however, the Commission shall make its records about a claimant available to the Workers' Compensation Commission if it requests such records. However, any claimant at a hearing before an appeal tribunal or the Commission shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Notwithstanding other provisions of this section, the Commissioner, or his delegate, may, in his discretion, reveal information when such communication is not inconsistent with the proper administration of this title.​

Va. Code § 60.2-114 (bolding added). Note the two key things here. First, the statute is focused solely on the commission revealing information regarding the employer if the employer can be identified in the disclosure.

Thus, in a civil case where the employee objected to the use of the Virginia Employment Commission Appeals Examiner (UC) decision in his grievance proceeding on the basis of this very statute, the Circuit Court rejected the claim that the statute protected disclosure of the UC decision with single sentence: “The literal language of Virginia Code § 60.2–114 shows that the Appeals Examiner's decision in question was not included within its terms.” Serrano v. City of Norfolk, 64 Va. Cir. 282 (2004).

Moreover, the statute literally only restricts disclosure by the Commission and not anyone else. That is reinforced in subsection E of this section which only provides penalties for Commission employees who make an improper disclosure. So even if the employee’s information was protected from disclosure by the Commission, if the employer heard the employee make statements that might implicate the employee in a crime, the testimony of the employer on that would not be privileged and could be used against the employee in court.

Second, note the final sentence of subsection A that I put in bold, which allows even that employer information to be revealed if the Commissioner believes doing so will not be inconsistent with the proper administration of the unemployment compensation system. The Commissioner might well decide that admissions or information about criminal activity may be disclosed as that would not undermine the objectives of the UI system.

And then there is the problem that even if the statute was air tight, that would only help the employee in a proceeding in state court. A criminal prosecution in federal court is done under federal law, not state law, and no federal law provides a privilege for information provided in a state UI proceeding.

For all of these reasons, the lawyer’s advice to the client to keep his mouth shut about anything having to do with the criminal allegations is well taken. There is indeed some risk that something he says might be used against him. Maybe in some other state that would not be the case, but each state’s law is different and it’s important to keep that in mind. The states do not all run their UI comp systems the same way.

 

[xylene]

For all of these reasons, the lawyer’s advice to the client to keep his mouth shut about anything having to do with the criminal allegations is well taken. There is indeed some risk that something he says might be used against him. Maybe in some other state that would not be the case, but each state’s law is different and it’s important to keep that in mind. The states do not all run their UI comp systems the same way.

Not to mention his lawyer's stance is more than advice, lawyer contractually insists.

 

[Taxing Matters]

Not to mention his lawyer's stance is more than advice, lawyer contractually insists.

Right, with the risk that the lawyer might terminate his representation of the OP if the lawyer discovers the OP did talk about it. That could be detrimental to his criminal case. And between getting UI benefits and getting good defense on the criminal allegations, I know I would say the latter is more important.

I want to be sure that I am not misunderstood. I am not saying the OP should not apply for the benefits. He could do that without saying a peep about the criminal allegations. What the OP ought not do is discuss the criminal allegations at all in the UI proceeding. Perhaps that might mean less chance of getting benefits than if he defended himself. On the other hand, maybe it wouldn’t make any difference one way or the other. But given the potential risk to incriminate himself if he talks, he truly is best off following his agreement with the lawyer to keep silent about anything having to do with the criminal charges against him.

 

[commentator]

I'm looking at this in the point of view that the criminal case at work is something that has a fair chance of having charges dropped at the preliminary hearing, as the OP says.
I suppose my interpretation of "not discussing the case" was not doing what some people tend to do, which is to start mouthing everywhere and anywhere to everybody they meet, telling the story, trying to clear up points about things that have happened and justify themselves, going on the internet, seeking opinions, trying out different stories. Yes, I'd naturally admonish my client to really avoid doing this.

But there's not much chance that the OP is going to be approved to draw unemployment if they provide no information whatsoever about the reason they were terminated when they file. The question "What did the employer say was the reason you were being let go on the day they let you go?" has pretty much got to be answered, whether that is considered "discussing your case" or not. I honestly don't consider that discussing your criminal case. Yes, it's true that either of the parties in the unemployment case could disclose what the other party said, but I'm not at all sure how important or valuable anything like that would be to the criminal case.

And anybody can usually come up with some general non self-incriminating answer to that claim application question, no matter what has happened or what he's been charged with. If the employer elects not to respond to this initial inquiry, the person would be likely to be approved to draw benefits, which would be to his advantage while he's looking for another job. If he doesn't answer at all, he's pretty much guaranteed a non-approved claim. But then again, it might be good if he files now, says very little, just to test the waters of whether or not the employer is going to fight the unemployment claim, probably gets denied, and then sees how the whole thing holds up in March when they have the preliminary hearing. He will not be able to backdate or anything, but he will at least have a claim set up.

 

[Taxing Matters]

I'm looking at this in the point of view that the criminal case at work is something that has a fair chance of having charges dropped at the preliminary hearing, as the OP says.

We don’t know what his chances are of getting the charges dismissed. We know nothing of the case. The OP simply stated that he had the “hope” that the charges would be dismissed. Well, I can tell you that with criminal defendants, guilty or not, hope springs eternal and they all hope their case will get dismissed or that they will have an easy way out of the predictment they find themselves in. For a lot of them that hope is never realized as the state has at least the probable cause to proceed with prosecution. Probable cause is not a high standard. Until the case is completely done with and there is no chance of the state refiling it the OP remains at some risk for prosecution. He does not want to say anything to anyone that would increase that risk.

I suppose my interpretation of "not discussing the case" was not doing what some people tend to do, which is to start mouthing everywhere and anywhere to everybody they meet, telling the story, trying to clear up points about things that have happened and justify themselves, going on the internet, seeking opinions, trying out different stories. Yes, I'd naturally admonish my client to really avoid doing this.

Well, at least we agree on that.

But there's not much chance that the OP is going to be approved to draw unemployment if they provide no information whatsoever about the reason they were terminated when they file. The question "What did the employer say was the reason you were being let go on the day they let you go?" has pretty much got to be answered, whether that is considered "discussing your case" or not. I honestly don't consider that discussing your criminal case.

He can say “My employer alleged _________ as the reason for firing me.” I agree that should not raise a problem.

Yes, it's true that either of the parties in the unemployment case could disclose what the other party said, but I'm not at all sure how important or valuable anything like that would be to the criminal case.

You don’t think that the employer getting on the stand in the criminal trial and stating that the defendant admitted in the unemployment hearing that he stole X,Y, & Z from the employer would be harmful to his case? I rather think that would help convince a jury to convict him. That’s one of the reasons why he doesn’t want to discuss his criminal case at that hearing. It is not the case that he can tell his whole side of the story in that hearing and not have it potentially used against him later, as your initial post had asserted. He really does have to be mindful of what he says. And take note of this, as I have seen it many times: what a nonlawyer thinks wouldn’t be harmful to say can sometimes indeed be cast in a harmful light by the opposing side and used against him. This is one of the reasons why lawyers counsel clients not to say ANYTHING about it without first consulting the lawyer.

And anybody can usually come up with some general non self-incriminating answer to that claim application question, no matter what has happened or what he's been charged with. If the employer elects not to respond to this initial inquiry, the person would be likely to be approved to draw benefits, which would be to his advantage while he's looking for another job. If he doesn't answer at all, he's pretty much guaranteed a non-approved claim. But then again, it might be good if he files now, says very little, just to test the waters of whether or not the employer is going to fight the unemployment claim, probably gets denied, and then sees how the whole thing holds up in March when they have the preliminary hearing. He will not be able to backdate or anything, but he will at least have a claim set up.

As I said before, I am not saying he should not apply for the benefits. He doesn’t have to say anything about the criminal allegations to do that. But he ought not say anything about this beyond, perhaps, a one sentence general statement about what his employer alleged as the reason for his termination and a simple “I deny the allegation” as his position. (I wouldn’t say “I didn’t do it” as that gets into the substance of the incident and, though it may seem innocous to a nonlawyer, could actually be harmful.) He’d be well served to get his lawyer’s input on exactly what to say in his application for benefits.

I get the impression from your posts that you are a huge advocate of claiming any and all UI benefits a person is entitled to claim, and in general there is nothing wrong with that. But sometimes that may have to take a back seat to something else. Here, in my opinion, the criminal case is the far more important matter and he doesn’t want to do anything that might screw it up. If that means he gets denied benefits because the UI examiners need him to rebut the allegations the employer makes and he says nothing, then that’s unfortunate but would be better than laying out his side of things to try to get benefits and then having his words used against him in the criminal matter.

 

[PayrollHRGuy]

But sometimes that may have to take a back seat to something else.

I'm going to have to agree to that strongly. I had an employer client that terminated a sales person. She subsequently filed an EEOC case and a UI claim. She was denied UI and filed an appeal. During the hearing and under oath she said things that pretty much countered everything she had said to the EEOC. After the appeal hearing I got the transcripts and did some highlighting and sent them to the EEOC. The EEOC claim went away in about two weeks.

 

[quincy]

When a criminal defense attorney tells his client to say nothing to anyone, the only smart thing for the client to do is to say nothing to anyone.