What topic to focus on for Unemployment appeal

[lowkey_g]

I lost my job a month ago and was approved for unemployment benefits. The approval was based on the decision that I was fired for missing too many days at work, but wasn't warned about my absences, and therefore wasn't able to correct the issue. My appeal is in two days and my confusion is as follows: The employer appealed the decision based on the fact that (1) I wasn't fired, but instead resigned after commenting on my transportation issues, and (2) the corrective counselings given on several occasions regarding my attendance proved my unreliability and unwillingness to perform within guidelines and procedures. Aside from what my employer submitted, the appeal document from DOL states that the issues to be decided during this appeal are (1) whether the discharge was for failure to follow rules or failure to perform, (2) whether I had a good work connected cause to leave the job, (3) whether the employer supplied separation info in a timely manner (as apparently they didn't supply the DOL with any documentation as they were initially asked during the fact finding).
My uncertainty is which battle do I fight....some, all or one? The truth about the incident is that yes, during the earlier stages of my employment, I was tardy quite a few times (they all weren't my fault as there were some last minute schedule changes that should've been vocalized with more than a day's notice). However, tardies did occur quite a bit in my first 90 days of employment. I received one written warning involving all incidents and informed my manager that I share a vehicle, we had some issues with that vehicle, and public transportation was not in my area. I did make significant improvements regarding attendance following the counseling. After that counseling, there were three distinct incidents spread out over the course of the next 3 months involving inclement weather, two funerals and a car accident that collectively led to my day of termination (all legitimate incidents, and in that respective order of occurrence).
That final gloomy day I arrived to work and made a few procedural errors, as I was not too familiar with opening procedures (it wasn't common practice for me to open). The only two people in the building were me and my manager, who approached me to state that she had had enough (in so many words). According to her: my next scheduled workday, pending HR's approval, would ultimately be my last, so I could wait til then, or "I could leave now." (Paraphrasing, but that was the jist of that convo). I took her up on her offer to "leave now". Never once did I mention my transportation being a present issue, even though my manager and I both had conversations about my transportation being a reason for several of my tardies in the past. She mentioned to me in that moment, that this was all about the day of my accident (my last occurrence) since the funeral (the occurrence prior to my accident) had exhausted my PTO and "you knew you didn't have any time left to call in."
In my book, that ultimatum of "leave now or wait til tomorrow when I hear from HR" is quite similar to being told "don't bother coming in to work tomorrow" (as I've been told by my first boss ever in life as a phrase of termination). So I told DOL I was fired for my 3 "uncontrollable absences" without warning.
With this series of events, I am left with multiple questions: (1) Was I, by definition, "fired"? (2) should I focus on the argument of fired-versus-resignation in my preparation for this appeal? (3) should I supply evidence of the absences such as obituaries, pics of my wrecked vehicle, tow truck reciepts, etc.? (4) am I doomed due to the fact that I racked up on tardies early in the game? (5) should I dispute individual tardies even if I don't have much evidence to prove my point? (6) should I simply focus on one attribute of my case, or should I go into defense mode and arm myself as much as possible on every argument listed above?
Obviously I'm confused and need help, because with all the documentation my employer has provided the DOL of my flaws, versus my lack of evidence to present, this thing feels one-sided (and not in my favor). I only see a few inconsistencies about the statements that HR provided the DOL, and the statements that my manager forwarded to HR to present to DOL. [HR's says that there was no mention of termination and I completely resigned voluntarily, while my manager admits to briefly mentioning her request to HR for my termination (which according to her was sent, but was not yet officially approved)]. Her mentioning this very fact in addition to her demeanor during our private conversation on my last day at work ultimately lead to my decision to take her up on her invite to "leave now". Otherwise, I would've never willingly quit my job.
Do I even stand a chance of coming out of this appeal alive?!

 

[commentator]

Calm down. That is your first job. The general procedure for an unemployment hearing is going to be about the same in all states. You won't have to "decide" how to argue, or what to refute, or how to run this hearing because that is not your job. That is the job of the appeals officer who will be handling the hearing. And these things are pretty much cut and dried. They don't have time to let you run on all day and refute and debate and present this and that. They will follow a certain format, and they will give you instructions on how to procede, and will expect you to follow their instructions. They frequently tell parties to stop talking, get back on topic, forget this or that, and will not let this run on very long at all. You have a few succinct points to make, and that's all you need to do.

You've already been approved in your initial decision. This puts you way ahead. Now the employer has used their one legitimate chance to appeal the decision. This doesn't mean their appeal has any more validity than it did when you were approved in the initial decision. It just means they elected to appeal. And it sounds as though they have used the traditional old "kitchen sink" argument. Throw in a little of everything. In other words, this employee didn't really get fired, he actually quit! And he was given warnings, he just didn't listen to them. And he wasn't a good employee when he was there. And he didn't do a good job, his performance was wanting. And ...and.....and.

And in this particular case, there's also, "and we didn't get the letter requesting information about the claim in time to give our answers in a timely manner....because whatever they say." This will probably be the first issue that the officer deals with, why no information was provided in a timely manner to help the adjudicator make the first decision. This will not concern you in any way.

The format for the hearing will be something like this. Both you and the employer will be present, if it is an in person hearing, or on the line if it is a telephone hearing. The hearing will be recorded. The hearing officer will instruct both of you, state who is present, swear you both in, and tell you how it's going to work. At some point, they will probably say, as part of their introductory spiel, "I will determine relevance."

In other words, while the other party is talking, you do not get up and yell, "I object!" you do not quote case law, you do not debate or conflict in any way. This is an agency hearing, not a criminal court case. Listen carefully to the appeals officer and do what they tell you to do. Be polite and respectful. Dress professionally, speak calmly, and be well organized. But do not come in there expecting to argue the other party to a standstill. That's not what you are supposed to do.

Of course, do not bring food or drink with you to an in person hearing. Do not write off your whole argument and read it into the hearing record, though you may have some cue notes of what you want to say. I usually suggest you maybe write the points on your hand or something, but do not bring in a sheaf of paper. Because if you do, that's all you'll be allowed to say, and what you start off with may not be what the appeals referee wants to hear. He/she may ask questions. This is not a "reading" it is a hearing. Enough said. Don't write it down and turn it in.

You already won the first appeal decision. Don't change anything. Tell the story of exactly what happened on the last day you worked there. Forget the reasons why you had been tardy before. You DO NOT need to go into why each and every one of them occurred. Unless they were for illness reasons, they are considered personal reasons, even if your transportation broke, or there was a traffic jam, or whatever. If the employer had given you valid and concise warnings telling you that if you were tardy again, you would be terminated, and you understood that very clearly, then you would not have a chance in a hearing.

In other words, the hearing officer will be trying to determine if you were given an opportunity to change the behavior in question, and you did not. (And as I said, being late because your car broke down isn't unavoidable, having baby sitter issues isn't unavoidable.. perhaps a death in the family, but that is NOT the issue we are looking at here.) You were tardy. You don't argue that, and they don't argue that.

The issue is whether you knew that another tardy would result in your being terminated. You maintain that since you were not warned appropriately and consistently, you did not have any idea that you were going to be terminated, until you were told such by your supervisor.

And there is no reason you would say anything except that when your supervisor told you that you were going to be fired the next day, that there was "no reason for you to come in" you interpreted that as being that you were fired. You did not quit, you did not say "I quit!" and you were not given any choice about leaving the job. You did not want to lose this job and you were trying hard to correct any attendance or tardiness problems you had had in the past after being warned and keep your job.

Forget dealing with performance issues. This was not the reason you were in danger of being terminated, they just think it is going to help their case if they say you weren't a good employee anyway. It isn't. All you need to say is that you always did your best on the job and you tried very hard to correct all problems they had with you and to be a good employee. Be sure and work that statement in when you can. Do not make any excuses at this point for anything that happened before you were fired, such as the individual tardiness episodes or any mistakes or performance issues.

Why would you say something stupid like, "I went on in to work and made a few procedural errors, I didn't really know how to do the openings (implied, "because I wasn't ever there on time!")? Don't bring up anything irrelevant like this that makes you sound bad. Don't try to be a fair or good soul who admits, well, maybe I made a few mistakes. That's not what we're talking about here anyhow. Your job performance is not the reason you were being terminated. You did the job to the best of your abilities, even if it didn't always suit the employer, didn't you? You weren't doing it wrong just for spite, were you? Skip it.

Deal with just the relevant facts, those facts that relate to that last conversation you had with your supervisor which led you to believe that you were terminated. Don't go into anything like how you thought that because you were told that on a job you had long ago yada yada yada.Just the facts, please.

Be brief, be consistent, and deal ONLY with what happened the last day that you worked. Stress that you did not know you were about to lose your job, you did not intend to quit the job, and you had believed, based on the counselings that you had or had not received, that you were not about to lose your job on the day your supervisor told you that you were fired.

The hearing will follow a procedure approximately as follows: First the appealing party will speak. Then you will speak. (Or vice versa) Then you will be given the opportunity to ask them questions. Then they will be given the opportunity to ask you questions. The hearing officer will ask questions, either at the end or during the testimony, to pick out certain issues and determine the issues that are going to be relevant to them in making this decision.

There will be no interrupting, no cross talk while either party is speaking. Even if they get up and lie wildly, produce documented warnings you have never seen, just stay calm and stick to your story. The hearing officer is looking for the more believable of the two parties, they assume either or both of you could be lying.

Be very concise about how many warnings you had received, what you had been told, and what happened on the last day you worked. That's what they are looking for from you. As I said, you do not try to argue every random point that the employer has brought up or defend yourself against everything they accuse you of or make excuses for each tardy that led up to the final one.

Remember, no matter how valid their argument is or is not, the employer had the right to file this appeal, as you would have had a right to appeal if your claim had not been approved. That they are doing this does not mean you are going to lose your benefits. It just means that the decision is going to be reviewed. That you won the first time is a good sign. Stick with what worked. Let us know how it goes.

 

[lowkey_g]

Calm down.

"You had me at hello." The idea of the hearing process breeds so much tension and anxiety that you almost forget to breathe. Thanks for the thorough advice. I am currently wearing holes in the carpet trying to decide what evidence I should submit. Based on your advice, its smarter if I don't send any. This is a telephone hearing, as according to info sent from the DOL, all GA laws will be, by default. My only question is if I should attempt to highlight the inconsistencies between HR's statement versus the manager's written testimony regarding the fact that "I was not told I was being terminated" during the cross questioning?

Remember, no matter how valid their argument is or is not, the employer had the right to file this appeal, as you would have had a right to appeal if your claim had not been approved. That they are doing this does not mean you are going to lose your benefits. It just means that the decision is going to be reviewed. That you won the first time is a good sign. Stick with what worked. Let us know how it goes.

I thank you so much for this valuable advice. You are definitely a godsend and I will absolutely be posting after the appeal and again after the decision to tell you how everything goes.

 

[commentator]

Question: My only question is if I should attempt to highlight the inconsistencies between HR's statement versus the manager's written testimony regarding the fact that "I was not told I was being terminated" during the cross questioning?

Answer: Abso-freakin' lootley not! Do you not think the hearing officer is going to be intelligent enough to look at what they said in the statement, versus what they turned in to the appeals tribunal? You just tell your same story again. You do not try to respond to what they said anytime. You are just there, again, as you did initially, to tell your story about what happened when you were terminated.

You had been tardy xx number of times. You had had a counseling on xx occasions. You had been correcting this situation, and were doing everything you could to be a good employee. You were tardy on xx dates. You called in and dealt with it appropriately. You had been absent due to a funeral. You had been tardy due to an accident. You had gone back to work after these incidents, and you had not received any counselings, warnings or other information about your work status SINCE they occurred.
(This is a very important here!Work this in!)

Your supervisor screwed up, big time. She got angry with you over a performance issue (totally unrelated to reason you were supposedly going to be fired, right??) and started telling you she was fed up with you. Then she started telling you that you were going to be fired the next day for the tardiness that occurred after the accident, because you knew that the funeral had used up your last excused absence. She led you to believe you should "go on and leave now" because you were going to be fired anyway.

There is a concept in unemployment that if the employer does not deal with the reason why they think you need to be fired, allow you to work a while longer, then they have, de facto, agreed not to fire you for this. They then can't pull it back up two months or weeks later and fire you for it (and show they had a valid misconduct reason to fire you.)

The question is, "Did you know your job was in jeopardy? Did you do what you did, knowing that it would lead to your being fired?" and being tardy again might've gotten you, but since you were back to work, being tardy and then making a couple of mistakes on the job doesn't justify them firing you for the tardiness.

Your hearing officer will know all these things, will be looking at it from this point of view. You don't need to point anything out to him or her. Just tell your story, stressing these things that I've pointed out to you. You always did the job to the best of your ability. You did not have any idea you were about to be fired. You DID NOT quit the job. Your supervisor made you very convinced that you were being fired the next day. Her exact words were...and quote them. She said something about not even bothering to come back. That's all you need to say. You left, and you assumed you were being fired for tardiness. You did not want to lose your job. You always did your best not to be late, and you did your best while you were on the job.

That's it. Hearings are NOT designed to be like a court. They are designed where the average layperson does NOT need legal representation. They'll just ask you to tell your version of what happened. They'll let the employer tell their version. They'll ask questions to clarify what they don't understand or what is unclear. Then they'll make the decisions. Don't stress this too much. If you just keep it simple and shut up when it's time for you to shut up, and do what you are told to do, listen and be cool, you'll do fine.

 

[lowkey_g]

Final Verdict

So the hearing is over and the final decision has been mailed. The hearing officer decided in favor of the employer.

The hearing went exactly how commentator described it.

The format for the hearing will be something like this. Both you and the employer will be present, if it is an in person hearing, or on the line if it is a telephone hearing. The hearing will be recorded. The hearing officer will instruct both of you, state who is present, swear you both in, and tell you how it's going to work. At some point, they will probably say, as part of their introductory spiel, "I will determine relevance."

The first issue addressed was the timeliness of the their appeal. The appeal was due 15 days after the original decision was mailed. The company's representative explained that she was out sick on the 15th day and that her assistant sent the appeal via fax. The appeal was marked received by the DOL on the 17th day. The assistant was conferenced in and testified that she had the confirmation page in her possession and that it was sent on day 15 at 6:15pm. I made no comments regarding this discussion.

The next step was to address the remaining issues, whether I quit or was fired, and whether I left for a good work-related cause. The questioning of the manager was all regarding my attendance. The questions that related to the day I was fired was brief and were like, "Did you at any point say he was 'fired'?" - No and "Would he been allowed to continue to work there had he not left?" - At THAT time, yes

I did my best to imply that I wasn't left with much of an option other than to leave the job based on that final conversation between me and my manager and that I was a good employee who had a few attendance mishaps in the beginning and was unaware that I was in any danger of losing my job.

The final decision came in the mail a couple of days ago and it looks almost like my manager wrote it herself. The hearing officer decided in their favor on every point, including the timeliness of their appeal. I think the whole thing was unfair, especially since that fax confirmation page wasn't sent in as evidence.

 

[commentator]

So file a request for an appeal to the board of review. The issue was did you quit, or were you fired. They thought the employer who said they did not say you were fired was more believable than your statement that you thought you were fired so didn't come back. It just sounded more like you quit to avoid being fired.

The board of review very rarely overturns decisions, but it costs nothing and no one will be hurt if you throw it through the system. Be very sure next time that you don't quit the job, no matter what anyone says to you, until you have verified clearly that you are fired. That the confirmation paper wasn't sent it is not enforced totally strictly if the employer OR the claimant has a reasonable reason for its being late. So maybe it feels unfair, but if you had lost the first decision and had requested an appeal (but it was filed a day or two late) they would probably give you some slack if you had given them an excuse too. Sorry it didn't work out for you.

 

[lowkey_g]

Be very sure next time that you don't quit the job, no matter what anyone says to you, until you have verified clearly that you are fired....Sorry it didn't work out for you.

Yeah, that's life I guess. I'll definitely file an appeal. I still can't thank you enough. People like you make this site extremely valuable. Had it not been for your advice, I would have had NO aim and now idea how to prepare for this hearing in the first place, and it would've all been a stressful experience from start to finish. Your suggestions gave me quite a bit of confidence in dealing with this. Of course, I was dealt a lousy hand with an employer from hell and a hearing officer who was probably more interested in her Friday night than my hearing, but everything unfolds as it should. My advice to anyone in a similar situation is to prepare yourself in advance and all important dates memorized. Also, things that you don't remember can simply be addressed by saying, "I honestly don't recall." Don't go toe to toe with your former employer, and keep in mind that the hearing officer is Completely oblivious to the events surrounding your specific situation. It's your job to make sure that you tell your story in a way that Clearly narrates your side of the story; and do so as early in the hearing as you're allowed to. Nervousness is pointless.

 

[commentator]

And may I add, next time before you quit a job (even an extremely crappy job from hell like many of them are) make very sure you can say "I had exhausted all reasonable alternatives to quitting this job before I left" I think this was probably the one issue that got you denied. When your supervisor said what she said, you assumed it meant you were fired.

If you had, when your supervisor said what she said, made a call to HER supervisor to clarify what was intended, or gotten her to spell it out in more detail, or called back after you had left and ask again if they were sure you were not supposed to come back, or if before you had asked for more assistance on the performance of the job, or asked the chief employer to change your schedule to accommodate your transportation issues, any of these might have helped.

But you are very right, the situation in a hearing is very cut and dried, and nervousness is pointless. Preparation and knowing what to expect are huge. This hearing officer knows unemployment law, at least much more of it than you do, and they are listening to at least four or five of these situations a day. They don't want to hear argument or drama, and they are listening for certain specific elements. They are used to walking people through the process and will ask questions if they don't get what they need to make the decision.

It is always very difficult to get approved when you quit a job. It is much better, for unemployment purposes, to be fired. But hopefully you'll find something better soon. Best wishes to you.