Due Process & Director Trying to Correct Prior Decesion
I filed and applied for determination of benefit rights in March 2011, on May 2011 the Director issued a Redetermination allowing benefits filed on March 2011. Upon being awarded benefits, I appealed the start date to start 6 weeks given that was my true termination date. The ODJFS transferred it to the Review Commission. On July 2011 the Hearing Officer could not change my start date as there is no statutory provision in Ohio law for this to happen. The Hearing Officer did affirm the Director's Redetermination issued on May 2011 that claimants benefit year begins in Feb 2011.
I file claims from March- January 2012 and continue to follow the guides for work serach and so forth. I was Self-Employed during the time and disclosed all this with my initial application along with the fact that I was working 12 Hours a day in Self-Employment while I continued to look for full time work.
The ODJFS in Dec 2011 investigate all my Self-Employmet and concluded I was ineligible under 4141.29 (A)(4)saying I can not meet the availability requirement under 4141.29 (A)(4)and they are requesting the repayment of $14,800.
The notion I can't meet the availability under the code above is simply not factual on my case and consistent with the previous facts and prior Director's decision and Hearing Officer Decision. It shows an attempt to correct a Director's prior decision which under ORC 4141.28(G)the Director shall Not Due. Also, since I appealed the start date (unrelated thought to this)and the Hearing Officer already heard the case and had all the information in the file back in May 2011, isn't this a violation of my due process.
If not in a case of May vs Board Review, 1980 the court held "that although the appellant was self-employed during the period in issue, there is no evidence that the claimant was not available for full-time employment while carrying on his log-cutting and snow removal endeavors in his spare time, on a part-time basis. The Court has found the decision of the Board of Review is not supported by the preponderance of reliable, substantial, and probative evidence.
They had all the information from the start of the claim. The facts here show no evidence I was
not available for full-time employment by being self employed. In fact i could at any moments begin full time employment. Again, since it was approved by the Director and Affirmed by the Hearing Officer, isn't this a violation of my due process.
Whether it is a violation of your right to due process isn't the main issue. It may be supportive, but you want to avoid repaying the unemmployment benefits .. right?
The issue is whether you were in fact able and available to accept full-time work.
I think I'd be more focused on facts that make me look like I was able and available and supporting that fact with job search logs that comply with whatever Ohio's rules happen to be for the job search requirements.
I'm telling everyone right now .. with the passage of the last Federal unemployment extensions .. you want to treat your job search log as if it were a tax return .. it's going to be that important for many people
I've already seen an increase in overpayments cases of late.
Unemployment overpayments come in two different flavors. Fraud overpayments and non-fraud overpayments
Some states also allow for waivers of non-fraud OP's (usually because the department made the error) that caused the OP.
The most recent unemployment extension
passed requires states to be very active in pursuing overpayments.
So, in closing, I don't really know if the Director is violating your right to due process, but I don't think so .. at least not yet .. because you now have the right to appeal.
But of course you would want to focus on the case law you found that allows a self employed person, to collect, but part-time vs your fulltime endeavor of being self employed does concern me.
But, I do think you will have to explain the difference between you and May vs. Board
In my and other states, an important factor with regard to being simultaneously self employed and collecting partial benefits is that when you can prove your self employment endeavors were concurrent also with your last job.
But above all I hope you still have your job search logs to prove you were looking for full time employment.