Need to appeal Unemployment determination

[Mark A.]

By the way, if I go to this hearing, can I use the fact that it was one week from when I was asked to discuss the incident in question to when I was let go. If I was such a concern to the company, why were they okay with me staying on for another week, doing the same work? Is this a valid argument for me at the hearing, if I decide to go?

Also, can my former company's attorney cross-examine me? Will I be up on the stand getting grilled?

Finally, is it possible this delay requested by the company is a tactic to get me to drop the matter? In other words, they think I'll get intimidated by seeing they'll have an attorney present and I'll call back the Hearing Office to withdraw?

 

[commentator]

Uh, yeah, Mark, what we said. The former clients who were all gung ho to "go to bat for you" have gotten cold feet because they still have to deal with the agency. But as we also pointed out to you, their refusal to give you statements, etc. is completely useless in the whole big picture, as they cannot do anything but give their opinions about it all, and as we continued to point out to you, it was NOT GOING TO BE IMPORTANT ANYHOW!!!!

You will not be "up on the stand" being grilled about anything. This is an agency hearing, okay? It is NOT a serious big old Law and Order trial situation. This hearing will be either in person or on the phone, in any case, this is what will happen. Both you and the employer or their representative (an attorney, big whoop, attorneys are not usually any more conversant with unemployment law than you are) will be sworn in, and the whole hearing will be recorded.

The appeals judge/referee/official of some type will explain the parameters, will start the process, and then probably you, since you are the one appealing the decision, will begin the proceding by telling the exact circumstances under which you were terminated, what you were TOLD on the day you were terminated was the reason you were terminated, why you do not feel this was a violation of confidentiality, honestly, re-read what you have been told on this forum!! And then the employer or their representative will get to do their time, speak their little piece without interruptions, trying to show that they had a valid misconduct work related reason to terminated you, that you had been told, warned, and given opportunity to change your behavior, and you chose not to, and violated somebody's confidentiality to the extent that they had a good and important and valid reason to fire you. If either of you runs on too long, or strays too far off the subject, you'll be stopped by the appeals hearing supervisor.

And then they'll give YOU the opportunity to ask the employer or their representative questions, they'll give them the opportunity to ask questions, and then the officer of the hearing will get to ask any questions they think may be relevant. Do not speak while another party is speaking. Listen carefully to the appeals referee and be very respectful and professional in your behavior there. This is what will count a lot in the whole gestalt of the hearing. Act profession, be brief, be businesslike. Dress nicely, if it is an inperson hearing, appear before time to start, have your ducks in a row. DO NOT go in with a statement to read off, though you can have cheat notes or talking points written on your hand or something. But be sure not to go in with any kind of written statement to deliver, as it is a hearing of your testimony, NOT a reading or a discussion.

The hearing officer, after the hearing, will go back and listen to the recording of the hearing, and make a decision from that whether or not to approve your claim. It is not going to be a life threatening experience unless you are just plain old lying your head off and so what? even if you don't win, you have lost nothing, you've given it your best shot.

BUt it's not at ALL uncommon to have them shut down any present client or employee who is supposed to be on your side or going to go to bat for you. Once you no longer work there, hey, you NO LONGER WORK THERE. Your job relationships and your 'he said/she said' b.s. and drama at this workplace are all over. You are out, and the best revenge is to move on and do better, hopefully with your unemployment benefits. Go for it, you should do fine, attorney or not, they won't be able to do anything but tell their story, and you have your story too. Tell it and let it be.

 

[commentator]

By the way, if I go to this hearing, can I use the fact that it was one week from when I was asked to discuss the incident in question to when I was let go. If I was such a concern to the company, why were they okay with me staying on for another week, doing the same work? Is this a valid argument for me at the hearing, if I decide to go?

Yes, actually, I'd bring this up.

Also, can my former company's attorney cross-examine me? Will I be up on the stand getting grilled?

Read my post.

Finally, is it possible this delay requested by the company is a tactic to get me to drop the matter? In other words, they think I'll get intimidated by seeing they'll have an attorney present and I'll call back the Hearing Office to withdraw?

No, not really. They have a certain way to go about things, and if the employer pushes it out too long, the unemployment system will cut them off on it. Maybe they are going to push it out, but as I said, if you are making weekly certifications now, even if the postponed it, you'd still be backpaid for this week and all the weeks, if you are approved. It wouldn't cost them any less to push it out than they'd eventually owe if you are approved which is your whole unemployment claim. It's not some big secret technique or anything. Don't overthink this.

 

[Mark A.]

No, not really. They have a certain way to go about things, and if the employer pushes it out too long, the unemployment system will cut them off on it. Maybe they are going to push it out, but as I said, if you are making weekly certifications now, even if the postponed it, you'd still be backpaid for this week and all the weeks, if you are approved. It wouldn't cost them any less to push it out than they'd eventually owe if you are approved which is your whole unemployment claim. It's not some big secret technique or anything. Don't overthink this.

Thank you for all of your help. I really appreciate it. I will reread this whole thread multiple times. Thanks.

 

[commentator]

Let me clarify a little about their side having an attorney to represent them. Unemployment hearings, as I said, are not court cases. They are agency hearings, and they do not generate a lot of money, win or lose. These types of hearings were deliberately set up so that it is fairly easy for anyone to self represent, as in most cases, at least one of the parties is unemployed and may have limited income to hire representation. And even if they do, the amount of money in most states unemployment claims is such a small one, with no potential for increasing the amount by skilled legal maneuvering, that attorneys aren't exactly drawn to the area.

That said, most attorneys are smart and literate individuals and if they aren't familiar with the unemployment statutes and processes, they will do the homework necessary to become familiar with it. Some who do deal with the situation more often become quite good at it. But having an attorney does not necessarily mean they have a great advantage. It depends a great deal on the particular attorney they have.

For example, it is never a good idea to go in with a know it all attitude, because many of the hearing officials who do unemployment hearings may be attorneys themselves, and even if not, they spend a lot of their time reading and interpreting unemployment law particularly, and they've heard and seen a lot if they've done it for any length of time. They will if they are at all competent and experienced, control the hearing and what is brought up and how long it lasts and whether the participants are staying on track.

They will not take kindly to being instructed, browbeaten, quoted unemployment law at or argued with. Most "pre-hearing patter" will reserve their right to control the process and say, "I determine relevance" so the parties cannot aggressively cross examine each other or jump up and say "I object, your honor! relevance!" or "Objection, hearsay!" or any such as that.

Most employers are not very familiar with unemployment law either. There are some HR representatives who have become good at it through experience, and they are the very toughest for a claimant to prevail against. There are many companies who avoid the issue by hiring private consulting firms who will offer to handle all the issues related to unemployment insurance for companies. If this is the case, they will have representation at the hearing from their agency. This can be good or bad for them. The HR person at the company has a much more first hand view of the situation that any representative walking in cold and given their written documentation of what happened. (And we have already discussed second hand stuff and its value in this hearing, haven't we?) And sometimes brand newly hired consultants get off the plane to attend their very first hearing, and this is where they're expected to get their training at doing it. So it is all just a toss up.

What you do is do your homework, which you seem to have done, and keep your story simple and consistent. That makes it seem more like your side of it is the more believable truth. Do not try to rebut any and all arguments or evidences or cross issues they bring up, just tell your story. Always stress that you did not intend to do anything wrong, that you did not want to lose your job, and that you always did your job to the best of your abilities.

 

[Mark A.]

Just an update and hopefully, an encouragement to some of you...I won my case. The company brought their lawyer, the HR Director (who did not have the courtesy and integrity to meet with me face to face and review the allegations/hear my side of things) and the Regional Manager (same guy who hired me and ultimately, gave me the news of my firing).

I was very calm and mentally organized. I acknowledged using wrong judgment and, technically, violated a company policy of not referring to clients who've left group. I did not get defensive when grilled by the attorney. I stressed there was NO willful intent or any motivation to oppose any company guidelines/rules. I "owned" the fact that part of what made me enter into this brief conversation was the cumulative stress of the position and a recent death in my family...but stressed there was no "maligning" or intent to hurt anybody.

I stressed the fact the company took eight days to deal with this and how I wasn't given a sense of due process. The Hearing Officer appeared to be frustrated at several points with the company, despite them bringing 3 key people to make their case. Quite frankly, I was surprised the company went to such lengths to deny my unemployment...I was sitting there thinking "Haven't they harmed me enough?" But, I guess it's all business and this is what they do. Regardless, I kept my composure and I really got the sense the Regional Manager was really not comfortable being there...that deep down he knew I'm a good guy, helped a lot of people, was well liked in the office, got many positive reviews and overall, had done a pretty damn good job, considering how stressful the job was. To work with severely depressed/anxious/bi-polar/bitter/low self-esteem/immature/personality disorder/oppositionally defiant and often, psychiatrically disturbed people in group therapy is very challenging. People come from Psych hospitals and they all have different needs, wants and issues. They don't know each other. It's MUCH more stressful than running a Drug and Alcohol group.

Anyway, this company behaved shamefully and dishonorably and this was a very satisfying victory for me. I got the letter that my unemployment denial was reversed within 3 days. The Hearing Officer clearly saw there was no willful intent. By her body language and reactions, I got the sense she also saw the company needlessly and cruelly terminated me. After the hearing was over, I was even able to nod and say goodbye to the Regional Manager and HR Director. I had no anger toward them any longer (although lost a ton of respect for them and the company in general) and was at peace with whatever decision came down. Thankfully, I got the great news 3 days later and 9 weeks worth of Unemployment was deposited into my account 2 days later.

Of course, I haven't heard from anyone at the company in these last 11 weeks...which is emotionally hurtful, as I worked hard to treat people nicely and made some good connections with some folks. None of them have contacted me or reached out in any way...perhaps they've been directed by the company not to...or maybe, they just couldn't give a crap. You often see people's true colors within conflict. Many people, not all, really don't care about you in the workplace and won't be there for you when needed.

 

[commentator]

Mark, thank you so much for coming back and letting us know what happened in your case. It sounds like you really did have a good presentation, came across as the much more believable and professional of the parties involved, and consequently, have prevailed. Congratulations!

There is one more appeal that they may do, which is nothing except a review of the material presented in which you have no participation) so far to make sure that unemployment law was followed, and from the sound of this, it won't come to anything I suspect.

As for the whole experience, take it as a learning. No workplace is about anything but the profits, it's not about the personal integrity of the individual employees, they'll all watch their own backs, no matter how close you were to them or what you have been promised. But you did a good job for a long time at a very stressful and demanding occupation where you may console yourself ( as I did for many years) that you may actually have helped some of your clients personally one on one, which is a little more meaningful than some types of jobs, and that's what it is really all about.

But the longer one is in the labor force, the less one should expect it to be fair or even honest, the bottom line is profit, and when principle meets profit, guess which one always seems to win. If you won your unemployment benefits, it costs the employer money, either in higher taxes or in what I suspect to be the case here (if they are in any way a non-reimbursing employer for tax purposes) dollar for dollar based on what you actually draw in benefits. So no matter WHAT they've done to you or how badly they've treated you, they're still not going to be in favor of your being able to draw unemployment benefits.

The best and only revenge is to move forward and do better. Good luck to you in your future endeavors.

 

[Chyvan]

By her body language and reactions, I got the sense she also saw the company needlessly and cruelly terminated me.

This is great, but what did the judge say in the decision. WHY were you eligible?

Did the employer not meet their burden?

Was it not misconduct, just poor judgment?

Did you not violate the policy as it was actually written?

Was it condonation because the employer waited too long after the incident?

Was there too much hearsay because the people that actually heard and saw what you did weren't at your hearing?

Trust me, you didn't get benefits because the judge thought your employer was evil and you were a genuinely good guy.

 

[commentator]

What we are fishing for here is that some exact phrase from our most excellent advice is what caused the whole winning. It sounds to me like a combination of many related factors, many of which we pointed out to this OP and they used to their advantage.