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A few thing that can happen when your employer has appealed to the board of review

I am going through an appeal review next week. My case is in the state of NV. What can I expect if I lose my unemployment benefits? This is the second appeal. I won the first one, and now my former boss is appealing the appeal decision. If I win this, can he come after me AGAIN?




Hi,
If you had given me some more information such as ..

Was the employer in attendance at the first level hearing?

Did the employer make a request for a continuance during that hearing that might have been denied and not in accordance with statute?

I might have considered your question answerable on a personal level .. maybe, but it did provide an opportunity to repeat in one place what I have already scattered throughout other Q&A's.

When your employer appeals to the unemployment board of review


And even when you do.

There are really only two reasons for this type of appeal. The hearing officer erred when applying the law to individual facts of a case or when the hearing officers or some glitch happened somewhere in the appeal process that is in opposition to your rights of due process .. rules of procedure for the hearing.

But when someone tells me their former employer has appealed .. my first thought is that it's because the employer was unable to attend the first hearing. This is purely based on thousands of requests for postponement that I made for them and were denied .. next step? Request a reopening. It's not all that difficult to get one in many states and there will just be a non-appearance added to the list of issues to be addressed on the new hearing notice.

And coming from the "job" I came from, I know that if I requested a postponement for an employer which provided good reasons to allow it .. it then just became a matter of appealing to the board of review to get the case reopened and remanded back to the lower level for ANOTHER HEARING.

This is done frequently when the hearing decision arrives.

But if your employer attended the hearing and you did win .. your stress level should go down some.

Appeals based on the hearing officer's decision itself are much more difficult to be successful with and require a sound and legal argument (a legal brief).

If you win the first hearing and your employer then appeals to a board for review of the record created at the first hearing .. it's not you that has to win .. it's the employer that has to show the hearing officer was wrong.

You could, if you want simply write an affirmation letter to the board. (Tell them why you think they should affirm with your own legal brief)

Yes, I know, your basic question is can the employer .. or anyone for that matter, appeal higher than an unemployment review board.

Of course they can, but most don't.

Why not?

It's expensive. It would most likely, wind up costing close to, if not more, than what it would cost them to just let you collect the benefits.

But there's always the "principle of a thing" that can cause some employers and claimants alike to throw their checkbook to the wind and dig in on "the pure principle of the thing".

Generally speaking, because this all can vary by state, review boards have the power to do a few things with an appeal .. depending on the basis of the appeal.

They reverse the hearing officer's decision and you then have to repay the benefits or you get them if it was your appeal

They sustain or affirm the hearing officer's decision and then the appealing party will most likely consider the use of and/or the additional and costly expenses before another appeal which would be an appeal to a "real" court.

Review boards can also modify the decision.

They can also vacate the first hearing decision and reopen the matter by remanding the case back to the lower level for another hearing (usually de novo), or as if the first one never took place .. Your benefits may be stopped again or suspended in this case if you won the first hearing and that decision was vacated.

They also might just send it back for "additional testimony" because they believe that the hearing officer erred by not "fully developing the record". (Maybe you tried to submit a document or offer testimony deemed irrelevant), but the board agrees that it is relevant.

Basically, they issue an order and the unemployment appeal section complies by doing what they are told to do .. or the unemployment department might appeal the board decision.

Most boards of review don't hold a hearing, and some states don't even have one .. you just jump right to court. They all do not hold a hearing .. some only allow "written arguments".

Most do not accept additional testimony or documentation either because their review is based upon the "RECORD ONLY" that the first hearing created.

Have I mentioned lately that an unemployment claim is a legal claim for money and that ignorance of the legalities can be a primary reason you fail to get benefits?


Comments for A few thing that can happen when your employer has appealed to the board of review

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Jan 12, 2013
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how long does it take to for a referee to make an appeal decision
by: Anonymous

Hi I had my appeal on Friday and they said they would mail a decision to us un regards to the unemployment. I thought I would get one at the hearing. Do you know how mong it usually takes a ref to make a decision in NV?



Hi,

It's usually only a state inundated with appeals that get them out past the two week mark after the hearing.

Timely issuing of hearing decisions is a matter of federal guidelines for resolving (issuing a decision) any appeal in a timely manner.

Once receipt of an appeal letter is acknowledged by a state, the countdown, so to speak, begins.

The guidelines (as related to me by more than one hearing officer denying my requests for postponement in days past) was a thirty day timeframe.

So, if after your appeal was sent and you finally receive a notice of hearing docketed for three weeks after your appeal arrived .. I'd expect a decision within a week.

But it's not like a state will be punished for every untimely decision. That's a matter of a state's performance and benefit accuracy record.

If it's bad, it may affect the grant a state receives from the federal government to administer their program.

(Employers pay both state and federal unemployment tax. The state tax pays for the actual benefits, the federal tax pays for administration costs and other related programs)

Generally speaking, if you do not receive a decision by the next time you have to certify for benefits .. or two weeks after the hearing, which ever is greater, I say, if it were me, it would be time to inquire as to where the decision is.


Mar 09, 2014
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Request to reopen appeal by employer
by: Mathias

I was terminated from my position of 4 1/2 years for "violation of policy". I initially was denied unemployed benefits because of a claim of misconduct. However, I won my appeal because the appeals referee believed my version of events, and my former employer did not provide documentation of my misconduct or copies of the policies I was accused of violating.

Now I've received notice that my former employer is requesting to reopen my appeal, claiming that they faxed the documents but the referee did not receive them. I would like to know if you think that it is likely that my appeal will be reopened, and what I can expect to happen at that point?

I am in Florida, and thank you for your insights.




Hi,

If the employer can show that they did in fact, fax the documents (easily accomplished by a successful fax transmittal, and I would think the "record" of the referee hearing includes the employer telling the referee that they faxed the documents .. and possibly asked for a continuance), my thought is the board would remand it back down to the tribunal level.

But .. that's a lot of ands.

So here's some ifs.

If the employer is successful in showing the hearing officer did in fact ignore their rights to due process and deserves another chance to present separation information once again (what you do at a tribunal level hearing) .. I don't know if the board would allow the current hearing decision to stand and just remand back down for the same hearing officer to take additional evidence and/or testimony, or vacate the hearing decision and remand for a brand new hearing .. in front of a new hearing officer (to avoid a decision prejudiced by prior knowledge) to do the whole shebang again .. like the first never happened.

Or, since I have no idea what actually happened during the "record" .. they might just affirm and dismiss the appeal.

Although I know some employers go to hearings unprepared because they do lack documents and first hand testimony .. that was never something I would advise.

My advice is consistent .. prepare everything prior to the hearing (what I did, and you can bet I used to have that "fax transmittal" to support in the event of a board appeal")and protect your rights to due process during the hearing because it's the good cause to help find hearing officer errors and defects for a board appeal.

Nov 17, 2014
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appeals
by: Dulcie

I was terminated from my job citing misconduct, but there was none shown from the employees so I won the first hearing they appealed it had second hearing. I won that one also can they appeal again?




Knowing the name of the state and whether the employer appeared for either hearing would be helpful ..

Mar 24, 2015
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Will I have to pay benefits back?
by: Anonymous

I quit my job due to continuous harassment and filed for unemployment. My employer appealed and won. Then I wrote to the board of review and they reversed the referee's decision. I started receiving benefits. Then my employer appealed to the board of review. I was served a subpoena. If my employer wins the case, will I have to pay back the benefits? I am in Illinois. FYI my ex employer is a law firm.

Mar 24, 2015
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Paying back benefits
by: Chris

They appealed to the IDES board of review and not a real court?

That's usually the next step for any appeal after a board reverses without first remanding the case back down to the tribunal level.

If they get that reversal reversed again, then I suspect yes, you would have to repay the benefits, unless Illinois has an overpayment wavier provision that might be applied in your case.

May 01, 2017
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CNA fired for false allegations
by: Anonymous

I was fired a couple months ago from a nursing home I worked at for 5 years. I don't work as a CNA for money, I do it bc I enjoy helping people who are mentally or physically incapable of taking care of themselves. I get attached to my patients and I've always been a hard worker. I worked 12 & 16 hour night shifts and I was at work more then I was able to be with my 3 daughters who I support by myself. Anyways a coworker came to night shift and wanted my assignment that I've had for years with the same patients bc she had the assignment on day shift. She got upset bc I wouldn't let her and she had to go to another assignment. For a couple weeks one of my regular patients with dementia was being more combative and wasn't sleeping and I asked the nurse about it she said they took her off of her meds. I was made to take care of her one on one every night and I wouldn't mind if I wouldn't have had 20 patients to split my time with but the nurse had me stay with her every where she went bc she didn't want to do the paper work of the patient fell. The girls at work sometimes joke around with each other when frustrated at work and some will say things like I'm going to choke them with a call light or I'm going to do pillow therapy but I've never said anything like that but I did joke around when I was a little frustrated and said I'm about to give her some melatonin to help her sleep, but I know I'm not allowed to give the patients anything and I would never do so, but the coworker who wanted my assignment went and wrote a statement against me a few days later saying I gave my patient melatonin, when there's no melatonin in the building. The DON puts me on suspension while they investigate the allegation and I asked if they would be able to test the patient to prove I didnt give her melatonin and they said no bc we already have melatonin in our bodies it's what tells our brains it's time for bed. When they called me back in the DON fired me and said she believes the allegation bc the patient was being combative the next day and she said that melatonin is an anti-psychotic. I said no melatonin is a natural vitamin sleep aide it's found in foods we eat every day, u can get it from the vitamin shelf in pills or gummys. And the patient being combative has been going on for a while and if the nurse's would chart on it like they are supposed to then u would see that this patient is combative and any nurse or cna could confirm that. But she said my job is the least of my problems and I might get my license taken from me and she won't give me a good reference. I applied for so many jobs an got a few interviews but wasn't getting hired bc the employer that fired me is giving me a bad reference when she knows I was one of the best aides they had. So I went and applied for unemployment after not successfully finding a job after 2 months and I was approved for benefits. And now the employer is appealing it when it is all hear say of false allegations and I don't have proof bc my coworkers won't be a witness bc they are afraid of loosing their jobs. But the employer also has no evidence except for that coworkers statement who now has my assignment. I can't afford an attorney, I just got out of a very abusive relationship with a man I was with since I was 17 yrs old, I stayed in a 13 years abusive relationship bc he would threaten to kill me if I left. But now I'm taking care of my 3 daughters by myself and getting fired over something I didn't even do is making my life extremely hard.

May 01, 2017
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CNA Fired for False Allegations
by: Chris - Unemployment-Tips.com

Hi,

Although you didn't ask a question specifically, that I could answer about your discharge, it did not seem to me as if your employer's appeal is to a board of review, but a first level appeal for a tribunal unemployment hearing .. where the employer would have the burden of proving what you termed as being only, an allegation of misconduct.

Proving misconduct of an employee literally is to relate through credible testimony and/or evidence (actual proof that weights testimony), you committed work related misconduct.

It's not beyond the realm of possibility that a good rebuttal to an allegation misconduct occurred, can be related to discerning how tough it might be to prove .. even if the allegation is true. (like when someone quits, but can't prove the employer should be held at fault for why the employee made a reasonable decision to quit).

It has to do with evaluating the burden and whether the moving party can meet it's burden to argue to a standard of law used to decide cases, especially once the case reaches the first level unemployment appeal hearing.

I thinking I should change the headline on the last page I linked to, to reflect more of what I claimants need exposure to. Maybe something along the lines of ...

"Do I Need to Meet the Burden, Rebut it to Shift Fault, or Let The Moving Party Fall Flat On It's Face, All On It's Own".

May 13, 2017
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Should I get a lawyer?
by: DaveAnonymous

I worked for a small company in Illinois for 4 years. I was let go because they stated they could not afford to pay me anymore and my position was eliminated.

I was paid a salary and given a gas allowance weekly that was direct deposited into my checking account. I applied for unemployment and was granted benefits.

The employer appealed and claimed I was a contractor. They paid for my liability insurance, paid for my company phone, supplied me 2 lap tops, a company credit card, and other company material.

There was a hearing and I won that one. Then they somehow appealed again stating I quit my job. (I believe that should have been brought up first if that were the case) I won that one too.

Now the appealed to the board of review and they have sent me a large packet from a law firm and it seems they are twisting everything around to try and get this overturned. The employer apparently is still claiming I was s contractor. I never signed anything with them the first two years I worked for them but they made me sign a contract after two years or they said I would be fired. During the hearing they submitted that contract along with another one that they say I signed when I started. The signature is a forgery.

I pointed that out st the hearing and the judge said she is not a signature expert. Regardless I won. Should I or do I need to get an attorney to help straighten this out or do I rely on all the other information the board has from my prior two wins?

I Wouldn't Hire an Illinois Unemployment Lawyer, But I'd Still Want to Be Represented

Let me begin by saying .. I would so enjoy perusing your case file up to now .. but then .. that might cause some to believe I'm a sick old pup.

So, I'll cut to the chase .. I want you to fill out the referral form so you can at least talk to a professional UI hearing rep I know .. knows more than most attorneys.

Illinois does not require an employer, or a claimant to hire an "unemployment" attorney.

I'd love to, but I won't speculate on how this employer managed to get this case back down to another tribunal hearing, except to ask with regard to packet of docs, Any new issue listed on the new hearing notice? And did the board order clarify if this is an additional hearing .. or a new (de novo) hearing maybe????

You said your employer hired a "law firm" and they just sent you a big packet of documents to help them argue you quit, after they already lost the argument you were a contractor whose employment wasn't covered by unemployment insurance?

Maybe employer, or employer attorneys are worried you have, or other employees have file a complaint with the WHD misclassifying employees as contractors.

The reason I wouldn't hire an attorney is because I would hire a more experienced non-attorney UI hearing rep. I used to contract many as true independent contractors when I worked for UI cost control companies. This would be my choice if it were me, in your shoes .. even if the rep is located in a different state.

Like I said at the top, I know UI hearing reps, but work with a lot less now that it's claimants I help.

My personal opinion is non-attorney simply know more than attorneys about UI and how it's hearings and appeals work while things are still withing the scope of the UI agency. They aren't bothered by, but often enjoy the prospect of going up against attorneys. Understandable since real attorneys are less experienced and much better at pissing off tribunal ALJ (administrative law judges) than showing they know more about unemployment law than the non-attorneys, who day in and day out at hearings representing employers .. and unemployed people when one can afford their fee (not cheap, but less than what lawyers charge) after I refer a case.


I would truly enjoy the prospect of letting me at least refer you for a free initial consultation with one.

Chris


Sep 03, 2017
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When companies reopen the case do they usually win?
by: suzy

I am in Illinois. I was terminated for misconduct at work for not getting permission for overtime even though I did. Lots of petty accusations for poor performance too. A written warning which I signed under duress at 4 month at the job and which was all false. Terminated at 8 months.Was discriminated against but hard to prove. I was awarded benefits by the referee due to no misconduct found because of the nature of my job. My former employer (big Corp) appealed but never showed up to the ALJ hearing and then appealed to the Board of Review a few days ago.They hired an Erst & Young Rep in TX.
I suspect, just as you have mentioned in this blog (which is fantastic! I wish I found them earlier)they will probably ask for the case to be reopened.
Can you tell me what to expect at this point? Where is this going? What is their strategy in your opinion? If they request for a reopening what does that mean for me? Will I lose?
How can I win against them in such a situation? How can I prepare? How many times can they appeal? In illinois they can wait til up to a year?
Thank you so much for your advice. It is one of the best I have found.
Thank you!
Suzy


Hi Suzy,

First, since you mentioned a UI third party administrator by name and I have a problem with how far some of these companies go to get at the problem of reducing the tax risks of UI, by playing on a claimant's ignorance of UI law .. while some actually don't seem to mind how this throws the original intent of the laws .. that should be, but aren't often liberally construed in favor of the claimant .. when it comes to proving facts .. to be a fact.

Ernst & Young is just one of any number of mega-huge players in the field that little ol' unemployed people actually end up fighting against at hearings .. when they send hearing reps to represent the employer's interests and goal .. which is always to deny benefits.

I wasn't aware of E&Y as being a big player in the unemployment cost control service arena until a few years back. But it isn't a stretch to think they must of learned the truth .. in what I heard the CEO of the last cost control company I worked for say when announcing they were selling to a major credit reporting bureau.

"UI cost control is the fertile field for our cash cow." At that time, unemployment data was feeding a data base used for income and employment verification among other types of services one can imagine from slicing and dicing that sort of info. In fact .. I thought it was a concern, when I rec'd an overpayment hearing notice from the state of Texas .. and the state's evidence was a report .. retrieved from the cash cow system.

Now to answer at least one of your questions.

Yes, if the employer didn't appear for the hearing, I would suspect the purpose of the board appeal is to request a reopening of the hearing back down at the tribunal level.

However, if it is reopened (safer to bet it will be .. because a postponement request was likely made before the hearing and to sound as close to a good cause reason for postponing as possible).

But the new hearing notice should now a non-appearance issue listed along with the separation issue and probably the typical IL timeliness issue.

As to how to prepare .. well if you can't afford a hearing rep of your own, I would recommend you start looking for information to help you rebut and poke holes in your employer's burden to prove your guilt of misconduct.


If I were you .. I'd begin by accessing the decision digest in the Illinois Unemployment Insurance Law Handbook.

And finally to answer your question .. about whether employer's usually win if they get the reopening .. approximately 75 out of a 100 times they do.

There's a link to the info I think you should look at, at the bottom of this page.. (It's a mess, but links are in alphabetic order .. by state.

Chris - Unemployment-Tips.com

Oct 06, 2017
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Employer doesn't show up to a Remand appeal hearing?
by: Anonymous

I am in Illinois. I was terminated for misconduct at work which was false. Lots of petty accusations for poor performance too. A written warning which I signed under duress 4 months into job and which was all false. It seemed I was set up, mgnt hoping I would quit as many do, but when I didn't they Terminated me at 8 months. I felt discriminated against but hard to prove. I was awarded benefits by the referee due to no misconduct found because of the nature of my job. My former employer (big Corp) appealed but never showed up to the ALJ hearing and then appealed to the Board of Review.They hired a Third Party cost control vendor you have mentioned.

The Board of Review Decision had the case "Remanded to the referee with instructions" and "We Remand this matter to the referee with instructions to schedule a hearing for the purpose of obtaining such evidence as may be available". This is to the SAME judge as before.
that the employer had good cause for being absent to the hearing as they indicated the failure to appear occurred because the Referee failed to contact the Employer for the hearing. (actually the judge told me that she had contacted the Employer but they had given her a wrong number so I won)
"Evidence of Prior hearing will be incorporated into and made part of the record before the referee and that the referee shall issue a decision based upon all the evidence of record".

So the day of the hearing arrives at 8am I receive a Fedex with a copy of the evidence for the hearing in 4 hours, my written warning, recommendation for termination from HR signed by my manager, and a copy of the employee handbook about the written warning even though that was not what I was terminated for and not what the cause of apparent Misconduct was for Unemployment benefits.

45 mins after the scheduled time the judge calls me to say the employer called to say their witness (my manager who fired me) was unable to attend due to an important meeting and requested another date and she the Judge granted another date and that I will be notified in the mail.
I called a secret friend at work (no one knows we still communicate as she doesn't want trouble) but she told me that the said the manager was at the office at the time of the hearing and she was chatting and texting to another manager at the time. There was no "important" meeting and by the time the judge called me the said manager was back at her desk. So it was all a lie.

What will happen now? What is the Employers' Representative planning? What is their strategy? What can I do to win? What does Remand with instructions mean? Is that a bad sign for me?
I am starting to feel stressed out, I have 4 young kids, an ill mother I look after and live on the meager unemployment payments since I haven't yet found a job yet.

Thank you so much for your fantastic advice. You are a blessing. If I could afford to hire you I definitely would.
God Bless and Thank you for your great advice.




Hi Anonymous in Illinois,

The state of Illinois seems to be giving your employer and it's witness, one more chance to explain themselves .. first on the non-appearance issue and if that's with good cause, then the misconduct issue.

In the order you asked your questions.

What will happen now?

You should receive another hearing notice for an "additional" hearing and it should have both the non-appearance and the misconduct issue listed. Additional .. vs. a remand with instructions saying the last tribunal decision is vacated. Boards vacate decisions so a "de novo" hearing can be held, which also means a new ALJ is needed without prior knowledge about the facts presented at the first hearing.

What is the Employers' Representative planning?
I can't really tell you specifically what the TPA may be planning to deny benefits on the misconduct issue because I'm not privy to any of those pertinent facts about your discharge, write-ups, or the applicable employer rules and policies, they tend to argue you had been made aware of, but I can tell you about the plan all TPAs have in place, to deal with employers who resist, or just poo poo the working ideas that makes a direct witness with knowledge of the cause for termination .. generally related to the final incident to do the direct testifying .. vs. the hearsay kind that doesn't carry as much weight .. procedurally .. and relatively speaking.
Basically, at this point, all the TPA is doingis the job employer contract with them to do; protect a client company's righs, so due process can still happen even if a postponement is requested and denied. Because once a hearing decision is made .. all one can do is hang a board appeal to reopen .. with the added issue of non-appearance on the written ppmt request, now a part of the record.

Too bad your secret friend won't testify with their direct knowledge the direct witness who may of lied to the cost control company about an "important meeting" hanging them up. Because I used to tell employers"press of business" was generally speaking, not good cause. You might find reference to this in the IL UI Law Handbook (resource page).

What does Remand with instructions mean?

Pretty sure I explained this at the top, the instructions explained to me this remand is for an additional hearing, vs. a de novo, or new hearing, as if the first one never took place.

When employers don't show up at hearings and misconduct was the main issue, the problem for claimants is they often manage to get a reopening after a tribunal decision (the final word on benefits) without the interested party with the burden to prove in attendance.

Exercising one's rights to due process is not, exclusive to just one party .. but both interested parties to one claim.

Claimants are often surprised after they win one of these one sided hearings. But my point is .. it sucks if you only won because the employer wasn't there to prove their burden of misconduct.

In closing .. let's just say I was still willing to coordinate hearings for employers and a PITA manager, such as your former one, who would call 4 hours prior to the hearing to let me know she couldn't make the hearing because of an important meeting. I would of course still need to pump her for more details because I knew that was a large part of my job .. and besides, I needed to know to frame a more compelling ppmt request based on the soft good cause reason non-appearance would be due to the "press of business". Regardless if I got compelling details to work with or not, I would of ended things by telling her not to attend, or worry. If the hearing decision ends up unfavorable (a reasonable expectation when the party with burden doesn't appear), we'll just request a reopening from the board of review, and eventually let you know if/when the next hearing will be held.

If she's not available for the next hearing and ready to address two previous non-appearances it is .. unlikely IDES will feel as accommodating to this witness acting as an agent with authority for the company that terminated your employment.. and then couldn't be bother with the follow through it takes to prove the truth as also being credible facts to deny benefits ..
too bad, so sad for the employer .. or when conditions are reversed, a claimant.

Chris - Unemployment-Tips.com


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