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Due Process & Director Trying to Correct Prior Decesion

by Shawn
(Lancaster Ohio)

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.

Thanks- Shawn






Hi Shawn,

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.

Chris


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Apr 17, 2012
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Addtional Information
by: Shawn

Hi Chris,
Thanks for information and prompt reply.

To elaborate a little further regarding the due process, since both the Director issued a Redetermination on May 2011, for the application filed in March 2011, and I filed an appeal that subsequently lost, but the Review Commission Hearing Officer affirmed on July 2011 the Director’s Decision and ruled the claimant’s application filed on March 2011 is valid. Therefore, how can they in January 2012 make another determination with no additional information on a case that has been decided seems like somewhat of a violation of due process. They had all the information regarding the self-employment at the time of the initial application. It doesn’t seem like they could have another “trial” for an issue that had been previously decided by the Director and the Review Commission in my favor. They are claiming the overpayment is for “Non-Fraud” as well and that I was self-employed. Again, this was all disclosed at the onset.

With that said, and concentrating on your suggestion in Ohio, there is no hard and fast rule as to what constitutes availability. In Leonard vs Unemployment Compensation Board of Review (1947), 148 Ohio St. 419, the court stated that availability depends on the facts and circumstances of each case and the Board of Review’s construction of the statute was too narrow in light of the remedial nature of the ORC 4141.

The facts here show no evidence that I was not available for full-time employment by being self-employed. In fact, I could at any moment begin full-time employment should the opportunity arise. It appears that I’m being penalized for being ambitious until I secure a full-time position. In Parent v Admr (1959) 84 Ohio Law Abs. 360, 362, where the court observed that “the claimant should be placed in no worse position then an less ambitious man.”

I will note too, that my hearing on this appeal of their Redetermination from January 2012 was scheduled for yesterday, but it was postponed as I indicated to the hearing officer that my entire file for my case was that of another claimant and not anything to do with my case that I had received. He postponed it to a further date, due to error on their part. Perhaps I have something here as well?

Any further input or comments is greatly appreciated.

Thanks- Shawn





Apr 17, 2012
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Different Issue .. I think
by: Chris - Unemployment-tips

What's the issue associated for the overpayment determination?

What were the issues listed on the hearing notice for the hearing you lost?

I'm might be willing to bet the reason or issues listed are different. And I think you're asking if there might be some rule against something similar to double jeopardy.

From what you told me your first appeal had something to do with backdating benefits paid on your claim to the week you were terminated .. although I don't know any details about what issue precisely was covered in that appeal hearing. I could speculate, but I'd rather just see the documents from the state .. including the hearing decision so I could not sound like I don't know what I'm writing about.

I think there might be a due process issue if the state is trying to relitigate your right to the benefits on a redundant issue and could simply be taken care of by forwarding the hearing notice as evidence the issue had been decided. But, I assume that first, the department would have to appeal the hearing officer's decision to OH's board of review first .. and timely to boot.

I suspect A&A and/or engagement in self employment and possibly even a job search audit could now be spurring the overpayment.

I also suspect the issues now are different than what the first hearing addressed even if testimony regarding your self employment was taken.

Tell me what I'm missing as to your point about your due process rights being violated by the ODJfS .. because I admit .. this is not the best form to communicate.

Apr 17, 2012
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Further Information
by: Shawn

The issue they gave is under the Ohio Revised Code 4141.28 (A) (4) saying I cannot meet the availability requirement. The claimant was engaged in Self-Employment or Commission Sales. Evidence establishes this has become his/her principal occupation.
The facts are they had all of this information in the initial decision to award and the redetermination as well. Then the Hearing Officer (It was an appeal on my part to get benefits started 6 weeks earlier which did not work) but they affirmed the Director’s Decision on my benefits. They have all my work contacts and I meet the requirement established by them. I answered on my initial application that I intended this to be my principal occupation. The director ruled: Claimant is self-employed and looking for full time work. Allow Benefits.
They did do an investigation on site and reviewed my bank records, statements, and job contacts. They didn’t find anything different than what I had previously disclosed. Therefore, they say well he couldn’t have been available for work.
My thought on the due process is I contend the ODJFS violated my rights under due process. On the grounds that the ODJFS relitigation procedure with respect to the January 2012 Determination violates the Due Process and Equal Protection Clauses to the United States Constitution. Thus, the “when due” requirement essentially means that “once a hearing is held and it is determined that a person is due benefits, the benefits will be paid regardless of an appeal.” In this case, benefits were initially awarded on April 13, 2011. On May 11, 2011 the Redetermination Unit affirmed the initial decision from April 13, 2011. An appeal was made and the file was transferred to the Review Commission, where the decision of the Director’s Redetermination on May 11, 2011 was affirmed on July 2011. All information with regards to Self-Employment/ Hours Worked was available during all three decisions affirming benefits.
To me Redetermination Decision is unlawful, unreasonable, or against the manifest weight for three reasons: 1) it violated my due process, 2) the decision attempts to “correct” a Director’s previous decision which shall not be permitted under ORC 4141.28 (G), and 3) the decision is not supported by evidence.




I think this may be happening because of the mandated changes made by the last unemployment extension passed.

You may be right, but I don't know .. like I said, I'd rather be the one reviewing the documents you're telling me about.

But, let's just presume Ohio has no right to issue a redetermination on your benefits at this point because an act passed last month by the senate changed the rules and states are now misinterpreting federal guidance.

By the way, OH does have reasons they can use to issue a wavier. Typos and clerical errors by the dept. being one of them.

http://www.ows.doleta.gov/unemploy/improp_pay.asp








Apr 18, 2012
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Write Up for Appeal
by: Shawn

My thoughts:
First, claimant contends that he was prejudiced by ODJFS failure to send him copies of all documents and written materials it intended for consideration by the hearing officer within fourteen days of filing its notice of appeal. According to claimant, OAC 4146-5-8 required that ODJFS send him those documents and any documents which were not properly sent to him could not be considered by the hearing officer. The redacted file attached to Anthony’s hearing was for a claimant Amie Adams unrelated to claimants case. Thus, resulting in the postponement of the hearing for a future date until the situation is corrected. Under File Review it specifically states: A file copy request cannot be accommodated if it will delay a scheduled hearing. Upon the correction, claimant contends the file is incomplete as it fails to list claimant’s answers on the initial application regarding his “Self-Employment” and the “Affirmed” decision in July 2011 by Hearing Officer Stephanie Mitchell-Hughes affirming the Director's Redetermination issued on May 2011 that claimant’s benefit year begins in Feb 2011 and the application is valid.
Second, Anthony contends “The Ohio Department of Job and Family Services” violated his rights under due process. On the grounds that the ODJFS relitigation procedure with respect to the January 2012 Determination violates the Due Process and Equal Protection Clauses to the United States Constitution. Thus, the “when due” requirement essentially means that “once a hearing is held and it is determined that a person is due benefits, the benefits will be paid regardless of an appeal.” In this case, benefits were initially awarded on April 13, 2011. On May 11, 2011 the Redetermination Unit affirmed the initial decision from April 13, 2011. An appeal was made and the file was transferred to the Review Commission, where the decision of the Director’s Redetermination on May 11, 2011 was affirmed on July 2011. All information with regards to Self-Employment and Claimant’s LLC was available and disclosed during all three decisions affirming benefits.
The Redetermination Decision is unlawful, unreasonable, or against the manifest weight for three reasons: 1) it violated my due process, 2) the decision attempts to “correct” a Director’s previous decision which shall not be permitted under ORC 4141.28 (G), and 3) the decision is not supported by evidence that the claimant could not meet the availability requirement.
The notion I could not have met the availability requirement under Section 4141.29 (A) (4) is not supported. There is no evidence that the claimant was not viable for full-time employment. The Redetermination is not supported by the preponderance of substantial and probative evidence.

Here is a web link to a case that perhaps could help my cause.

http://www.web.ucrc.state.oh.us/Abstract/Court/c000112.stm







Apr 18, 2012
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As long as the issue is the same
by: Chris - Unemployment-tips

First, I apologize Shawn .. I deleted your shorter comment accidentally.

I agree, OH's redundant redetermination unit should not be forcing another adjudication on the same issue about your availability. But I'd also like to point out that if you did file for a 2nd benefit year and if this appeal was prompted by the rules regarding federal extension benefits the amount of the OP would be way off base anyway.

It could just be a questionable cheat to get around any required timeliness of appeal issue too because the state would have had to appealed the last hearing decision to the review commission TIMELY.

But, OP's after the second claim has been filed are on the rise and the OP's always seem to be for the full amount paid from the very beginning of the first claim.

My concern .. How many do you think are being caught in this snare that aren't nearly as sharp or lawyer like as you are Shawn?

Seems to me the best piece of documentation (minus the very astute legal argument) to get a dismissal is probably, the prior hearing decision. It may very well prove the same issue has already been fully adjudicated and OH has no right to readjudicate.

But, I used to compare the issues on NOH's before I knew how I would proceed, which was always to try to get the state to willingly dismiss first by faxing the appropriate hearing decision or to hire the hearing rep to argue the issue.

The case law you linked to does go right to the heart of what you've been trying to explain to me (sorry if I've been dense). It explains and supports the procedural error that is violating your right to due process.

However, I have just been trying to confirm the issue of availability was listed on the first hearing notice .. regardless of what you have submitted to the state previously, because what you told me .. working 12 hours a day in self employment .. is a big question mark on your actual availability and the listed issues on a hearing notice are usually, what allows the hearing officer jurisdiction to make decisions about.

I hope your self employment is going well.

Which I am not.











Apr 18, 2012
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Original Questions they asked prior to intial approval
by: Anonymous

Chris, thanks for positive words of encouragement. Below are the questions that were asked with my intial application in Feb 2011and the ruling listed below:

Claimant Questions
1. Please describe your self-employment.
Insurance & Investments
2. When did you begin this work?
1/28/11
3. Did you perform this activity while employed full-time?
No
4. Please explain your financial investment in this activity (e.g., for supplies, tools, rent,
etc.).
Jan- March 15th: Equipment, Rent, Supplies, Licensing, Insurance, Marketing, Legal/Accounting
total: $15,658
5. On an average, how many hours do you spend each day in your self-employment
12 Hours
6. On an average, how many days each week do you spend in your self-employment?
6
7. Are you realizing profit from your self-employment/commission sales? (If yes, provide
gross amount. (i.e., income minus expenses) realized weekly.
No: Income: $5,874.13 - $15,658 Expenses
8. Do you intend this self-employment to become your primary occupation?
Yes
9. Are you seeking full-time work in the regular labor market each week? (If no, please
explain).
Yes
10. Do you want this agency to issue a determination based on the information you have provided
in this response? If no, any further information that you wish to provide must be received by
your processing center by the deadline date on this notice.
Yes

Reasoning
CLmt is self employed and looking for ft work. allow

Then when they investigated in Dec 2011, my affidavit stated I was working 50 Hours a week in Building the Business….(22 Hours less a week then my original application).
I have a local attorney (not really versed in this arena) but she has suggested the defense of violation of due process, and that in my 50 Hours a week 25 to 30 hours have been spent in my lawsuit pursing my former partner) and that I can do my self-employment at any time.
I’m still contemplating the idea you have suggested with a hearing officer as well. It is unfortunate if I had been less ambitious and stated I was working 20 hours a week I don’t believe there would be any issues.
One other thing popping into my head by the investigator was my comment about the information had been answered already and approved from the start……to that she said “they may have some unseasoned personnel in that department.”
Again, your input on this matter is greatly appreciated.












Apr 18, 2012
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Unseasoned is not synonomous for lacking common sense.
by: Chris - Unemployment-tips

Interesting .. I was still working as a temp coordinator in 2008 when claims and appeals went bonkers. I remember a claims specialist telling me one day that she had a unique experience with a FL adjudicator call.

The guy at the state told her he didn't really know what he was doing, but had been recruited from his usual duties .. having something to do with building maintenance, to take return calls for the real adjudicators. I wonder .. is that what's meant by "unseasoned".

I would say the adjudicator had to of been more than unseasoned because if I had read that list of answers .. I would of said your availability was seriously restricted .. no matter that you answered you were looking for FT work.

Most employers think I'm biased in favor of employees. I may be, but I know I would of been more apt to warn you off collecting anymore benefits if I had read that list of answers.

You might try looking for a precedent involving receiving erroneous information from state personnel .. it usually doesn't help much because filing for benefits presumes you understand the UI laws that control claims .. but it might present further good cause for a wavier of overpayment.

However, I also don't think the state should now be allowed to sidestep that precedent or any relevant timeliness of appeal issue just because the issue is about a conditional eligibility requirement vs. a separation issue.

When an employer or an employee fails to appeal timely or untimely without good cause, the result is a loss of right to address the issue that stands in the way.

I think the details regarding your availability cannot be addressed or considered until the state gets past your argument that your right to due process has been violated.

You or your lawyer found the case law that basically forbids them from readjudicating an issue already decided on. The precedent although focused on a separation issue should still apply to any type of issue whether a conditional eligibility issue or not after filing for a second benefit year. I know it didn't specifically exclude all other types of issues.

Here in my state and many others, it's very helpful to prove availability by showing that SE and regular employment took place concurrently. It doesn't sound like OH has the objections to collecting while self employed as say NY or PA where just thinking about it would scare me ..

But never, would I of expected any state to of deemed you available when you told them you were working 12 per day .. 6 days a week. I'm certain it had to of been an unseasoned mistake .. nothing else explains it.

This is why I wanted to know if the prior hearing notice listed able and available as an issue and thee hearing officer made a finding on that issue.




Apr 19, 2012
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Workers Guide and Upcoming Hearing Scheduled
by: Shawn

Hi Chris,
I couldn’t agree more with your statement that unseasoned is not synonymous for lacking common sense.
I reviewed again my “Worker’s Guide to Unemployment Compensation,” which the investigator referred to it when she visited my office in Dec 2011 as my “bible for benefits”.
Interesting it makes simply no reference to Self-Employment. It does have a section “Verifying information that may disallow a payment” It reads as follows:
Whenever ODJFS receives information that raises a question concerning your continued eligibility, you will be notified in writing. The NOTICE OF ELIGIBILITY ISSUE will provide the following information: The specific issue(s) which may result in the denial of your benefits, The beginning date of issue, and What action caused the eligibility issue to be raised.
If you are paid benefits for any weeks that are later disallowed, you will receive a DETERMINATION OF UNEMPLOYMENT COMPNESATION BENEFITS notice that identifies how much you were overpaid.
Of course they sent one of these to me in the beginning, as noted above of the ISSUE of SELF EMPLOYMENT and they approved the benefits as claimant is self-employed and looking for full time work………should not be problem to quote you in they lacked common sense…..apparently they saw it as an issue or they would not have sent the questions for me to answer honestly. Again the Redetermination allowed it, and the Hearing Officer allowed it all with access to the questions.
I just received via email this morning my hearing is the first of May…since they had to reschedule as all the documents I had were that of a different claimant (Nice mix up on someone’s part).
I will heed you advice on sending documents to the hearing officer on the violation of due process and the history/documents (which the ODJFS does not have the answers to my self-employment in the file for the hearing officer, perhaps a coincidence.)
Thanks- Shawn





Those "claimant bibles" a short piece of rope designed to intentionally under inform .. IMHO!

Shawn, you might want to fill out the hearing rep referral form. I know you have an attorney, but I know just who I'd send it to. I'm sure he'd have some better insights than I. He's been doing unemployment hearings for over 20 years.

But whatever, I wish you luck and I do want to know how this turns out .. if you don't mind.

Chris

Apr 19, 2012
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Response
by: Shawn

Chris, I completed the referral online, and have typed up a draft of what I would send to the hearing officer with the hopes of getting it dismissed.

I will keep you posted on the outcome.

Thanks

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