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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


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