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1 case appealed denied (original), 2nd granted to reopen?

by Danny
(NY)

I'm in NY. First case,(1st court date) the employer did not show up. I testified, decision for ui benefits granted. That case was appealed and reopened.


2nd case (my 2nd court date) the employer (my supervisor) showed up but did not listen to my first court date testimony recording so she decided not to waive her right to be allowed to listen to it first before cross examination. I won that appeal by default.

Then both cases were appealed, my 3rd court date, the judge denied one case (the first one of the employer not showing up with good cause) but found good cause to reopen the 2nd court date by default (the one where my supervisor not prepared to cross examine because she did not hear the recording?) She received the same yellow last page I got which stated to come in up to half an hour of the court date to listen to any previous testimony in order to cross examine but failed to do so. What could happen next?

If the appeal was denied for the very first case, can my UI benefits be in danger because of the 2nd court date (2nd case) being reopened?

I don't get it, will there be another court date? What do I say or do then? Ernst & Young LLP is handling case I guess. It's on the letters. Fired for misconduct which is false, I was fired because of a new manager not liking me. 5 years with a Big player bank with NO infractions ever!!


New York - Is it Still a Three Strike Unemployment Appeal State?



Hi Danny,

I needed to double check (given I haven't answered a question about New York tribunal unemployment appeal hearings for some time and you mentioned there being an issue of good cause for the employer's non-appearance) to find out if it's still operating it's lower level hearings on the premise good cause is only needed if the non-appearing party strikes out three time (in reality three non-appearances at a hearing used to equal three strikes) before the non-appearing party was Sh$t out of luck, when it came to reopening.

Looks like something might of changed at the NY UI Appeal Board.

It's relevant FAQ now states...

After the Hearing

What if I miss the hearing?

If you asked for the hearing and did not get an adjournment, you will get a decision that says you did not appear and that the determination against you is sustained. If the other side asked for the hearing, the judge will hold the hearing without you and will make a decision based on the other party’s evidence. If you have a good reason for missing the hearing, write or fax the office where you filed your claim right away to reopen your case. A new hearing will be set up. If the judge finds you had a good reason to miss the first hearing, the case will be reopened and a new decision will be made.


So, let me ask you a question Danny (by the way, each hearing was about the same case, but the second hearing notice should of had an additional issue about non-appearance.

Did the second hearing notice have in addition to the issue about whether misconduct, or something other was the cause for termination, an issue that asks if there was good cause for your employer's non-appearance?

Regardless, I'm with you .. that was a boneheaded move for the "direct witness", who I assume fired you, to not think it important to listen to your testimony since this must of been an "additional hearing", to complete the record began when you were at the first hearing rebutting misconduct and the employer wasn't there to prove their burden of misconduct.

If I had been handling this case for the employer .. I would of done my utmost to keep this employer from appearing at even this second hearing. But then again when I worked in cost control .. I never advised an employer to do the job of a hearing rep .. even if I could find one in time. Instead, I would of put postponement requests into the record to preserve a right to due process. I would of framed the excuse for the non-appearance as close as I could get to sounding like good cause .. before BOTH hearings .. even if I knew the excuse was on the weak side. Why? Because that's how you protect rights your right to eventually have your say and due process after you show that request along with an appeal to an appeal board to get a reopening. This is how postponing hearings works in most states .. and apparently now in NY.

Ernst and Young is a huge company, but I've got an opinion about huge TPAs (third party administrators), especially those that include an offering of UI cost control services to attract customers to other types of outsourced HR functions.

The bigger a TPA is .. the more opportunities for their personalized services to suck for employers as well as the claimant, often confounded by all the going ons .. behind the scene .. just to deny benefits and whether that would be the right, wrong, or indifferent thing to do .. on a case by case basis.

A discharge due to a personality conflict .. is not misconduct .. at least I can't find that mentioned as being a reasonable reason to fire an employee in the NY interpretive UI index about what constitutes misconduct.

My thought about another tribunal hearing ending up being a problem for you?

I personally would be concerned, but not worried another hearing would be likely, because the employer did appear this time .. and blew it to boot.

Employer appeared and on the record of the second hearing alone, but declined to listen to your testimony given at the previous hearing which might be pertinent to any good cross examination to prove misconduct.. On top of this you tell me the "judge denied one case" (the first one of the employer not showing up with good cause".

Only question remaining is if Ernst and Young can come up with what might sound like a good excuse for what the employer did at the hearing .. to placate the big bank client.

I personally can't think of one reason to argue for another hearing, because now it would need to sound as if the employer's rights to due process were usurped by the ALJ .. which would be on the record of the second hearing .. and you tell me, the ALJ gave her every chance to listen to what you testified to.

Right?

Chris - Unemployment-Tips.com

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Sep 09, 2017
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Appeal after appeal after appeal is what happened here!
by: Danny

Yes, she had from March 27th the day of the first court date (actually a week later when the decision was sent out and given 20 days to appeal) which appeal was sent in and granted to then reopen on, May 8th. The letter with exact instructions to listen to any previous recoding of testimony from previous court days was sent in the first week of April, so she had over a month to do so.

The ALJ denied to reopen the first case because the adjournment request fax was sent in on a Friday night and received by fax that Monday morning the day of the first hearing which led to the adjournment being denied and ALJ then states in this 3rd letter that the employers witness provided misinfomation regarding the adjournment. Something to do with the adjournment request letter saying she was out of the country at the time, but then her stating at the second case (I guess she goofed it) she was back in the country on the day of the first hearing. Regardless she denied reopening the first case, which then states the initial determination is overruled. That decision continues in effect. The claimant is allowed benfits with respect to the issues decided herein. But in fact reopens the second case. Still don't get it but ok.

They first appeal, lose. then appeal again,which went to the board of appeals and was denied, appealed again to the ALJ and granted a reopen, now what? Confused.

Sep 09, 2017
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Ya, me too, bit confused that is.
by: Chris - Unemployment-Tips.com

I probably wouldn't be for long though, if I could read the same docs you're looking at.

All the best,

Chris

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