NOTICE TO CLAIMANT REGARDING BENEFITS PAID PENDING APPEAL

by Dan
(CA)

NOTICE TO CLAIMANT REGARDING BENEFITS PAID PENDING APPEAL

That is the title of the notice I received today on March 14, 2011. It appears that my former employer has filed a 2nd level appeal. It does not say much else other than I will continue to receive benefits as long as continued claim forms are submitted as well as the possibility of repaying benefits if this appeal finds me ineligible.

I was terminated in November 2010 for misconduct (time log manipulation). My original unemployment claim was denied.

I filed for and won my appeal. My hearing was over the phone with an Administrative Law Judge. I gave my testimony denying my wrong-doing and rebutted the evidence that my former employer had submitted.

The notice of this appeal's decision stated that the employer did not appear but did fax evidence. Under the heading REASONS FOR DECISION. The letter also stated, "however, there was not any evidence submitted about how to interpret or what inferences were to be drawn from the employer evidence presented." S

I guess my questions/concerns are how worried should I be since my employer didn't bother to testify? In the meantime, should I prepare in any way or do I just wait and see what happens?




I think they would have to show good cause for the non-appearance at the hearing as they must have received the NOH (notice of hearing) if they did fax documentation for the hearing.

Secondly, I would have never advised an employer to do this .. I would have made absolutely certain that a postponement request was made and put into the record to support the argument of non-appearance .. not that it always worked, but submitting documentation without direct testimony to support, or bring the documents to life, would in my estimation be a boneheaded move.

It is this way .. because you .. the claimant, cannot cross examine a document .. nor can the ALJ ask the document questions.

At the very least, if the employer had insisted that I send documents for a hearing .. I would have insisted that it be accompanied by an affidavit .. just to kind of bolster the lonely voiceless documents.

Worry about it? Only if you're the employer.

Should you prepare? Always!

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May 02, 2011
California Board Appeal
by: Dan

There were no objections to any evidence nor was anything disallowed. It was the same evidence that was submitted for the original appeal hearing back in January. As far as requesting a postponement, that was apparently done prior to the first hearing which is why this recent one took place. There was no mention of a postponement this time around or of any witnesses or evidence that the employer was unable to secure in time.


Apr 30, 2011
California Board Appeal
by: Chris - Unemployment-tips

Hi Dan,

Congratulations!

Did the ALJ disallow any evidence or testimony from the employer? Refuse to allow a continuance to bring in an unavailable witness that they interviewed to corroborate?

Testifying to what others not present at the hearing said during an interview is hearsay testimony and it carries less weight than your direct testimony.

Creating points for further appeal is done either during a hearing or before it takes place such as.. A request for a postponement before, if a needed witness with first hand knowledge is not available or a request to continue the hearing after it starts until a time that the needed witness will be available.

If a document is disallowed for being irrelevant, there would need to be an objection on the record as to it's relevancy to point to in the appeal.

Appeals to the board of review are primarily based on errors made by the ALJ when they fail to follow the rules of procedure that apply to the conduct of administrative law hearings.

There are mandates for conducting hearings and deciding facts according to precedent decisions.

The ALJ is mandated to develop the facts so a remand could be to just take additional testimony to do this .. or it could be a brand new hearing when the first hearing decision is vacated.

An affirmation means no errors were found.

Boards also have the power reverse .. a decision when the error is blatant.

Or modify the section of law and decisions cited for the reasoning portion of a decision.

But usually, board appeals are dismissed because the person writing the appeal doesn't raise valid points in the appeal .. or they raise incorrect points.

Understand that this is just a lay person's informational opinion based upon her job experience as a hearing coordinator ..

When you want legal advice .. you have to talk to a competent and licensed attorney.

Yet all unemployed people that file for unemployment benefits are assumed to know the law and most states go as far as to discourage them from seeking any help at the hearing level.

Go figure. You'll most likely be fine .. the employer had their chance to bring the witnesses to provide the direct testimony to corroborate the hearsay testimony .. unless they requested a postponement prior to the hearing.

Was there anything noted in the file about one of those? I use to fax my very detailed postponement requests first .. before I called the state of CA to repeat the request verbally.

Just to create some point for appeal .. if the employer didn't take hearing appearance as seriously as I did.

Chris

Apr 27, 2011
Appeal Decision
by: Dan

Finally received my decision notice today. The employer was found to have shown good cause for not appearing at the original hearing and was granted a reopening. However, I was still found to have not been guilty of misconduct so I won in the end.

I am curious about the next appeal level if the employer decides to go that route. My understanding is that this is a request to have the ALJ's decision reviewed by an Appeals Board. These members can affirm, reverse, or remand the ALJ's decision. Rarely but in some cases, new evidence is allowed.

Sorry to be vague but under what circumstances would new evidence generally be allowed if it could have been presented in the first place? The reason that I bring this up is because during my hearing, the employer stated that they had interviewed some of my fellow employees who allegedly backed up the employer's testimony. However, no witness testimony or written statements were submitted as evidence.

This fact was also stated in the appeal decision so I wonder if they would try to convince some employees to testify. Would this kind of thing be allowed in your opinion?






Apr 12, 2011
Hearing Completed
by: Dan

Finally wrapped up this re-hearing. I was kind of disappointed that I did not get an opportunity to object to the hearing in the first place. The HR rep who attended and was to attend the first time claimed that she was taking part in a training session and could not be in two places at once. She was allowed to give testimony although I didn't get the impression that she had the ALJ convinced.

My issue was manipulation of employee time records. Some time logs were submitted as evidence against me but I maintained that any changes that I made (regardless of how suspicious they may have appeared) was for a valid reason. The most difficult part for me is feeling like I had to prove my innocence. I had no way of recalling each instance when a change was made or why it was made since they were 5-6 months ago.

When I was a kid, I was terrified of getting in trouble. Whenever one of my parents would question me about something that I didn't do, I would get so nervous that they sometimes thought I was lying. I felt like a kid at times today :)

I do know that the burden of proof was on my employer and I didn't get the impression that they made a compelling argument. They were also questioned why someone with my tenure and lack of previous disciplinary issues was terminated without being given the opportunity to explain my actions, and if necessary, receive a lesser form of punishment. The response was that they believed that a policy had been violated and required immediate termination.

I feel that I will win but it's not my decision so I'm also going to stress about it until I receive the judgment in the mail.

Apr 07, 2011
My Research
by: Dan

Thank you for the link. It was a little difficult to navigate through for the untrained but I found a few examples which seem somewhat similar to my situation, although not as specific as I would have liked.

Cases in which the missing party were allowed a new hearing involved an employer never receiving notice from the EDD regarding an initial appeal hearing and one involving a gentleman who had to take his girlfriend's child to the ER. I would have to go back and check the details again but I remember the second example resulting in a denial at first. The individual did not call in until after the hearing but this denial was overturned since he was found to have good cause.

New hearings were denied for one person who failed to appear the first time because she was working at another job, couldn't get to a phone, and made no effort to contact anyone regarding her situation. Another involved someone who showed up late without calling because he had an important business matter to attend to that morning.

In my case, the employer did attempt to change the hearing date because of an undisclosed business matter. Without knowing the specifics, it is difficult to develop a good defense against vacating the original hearing. I am planning to argue that the employer could/should have made the necessary arrangements to have a representative attend the first time once they were denied a rescheduling.

Unlike some of the examples I posted, the employer was aware of the hearing and did not have an emergency. They made a conscious decision to put their priorities elsewhere and not attend. That doesn't seem like good cause. Although I am fairly confident that I can win another appeal, I really don't want to risk going through it again. Hopefully the ALJ agrees with me.




Excellent .. I'm certain you will .. do fine and it will be interesting to find out what the "undisclosed business matter was .. sounds like something I used to write to slap into the record when I couldn't hunt the employer down ... it's always better to do that than send a representative without any direct knowledge of the job separation .. the only thing a "representative could have done on the record was to reiterate the written postponement request if further information about the emergency nature of it became available.

I'm with you .. I hope they get shut down right out of the gate.

Apr 01, 2011
Employer's Request
by: Dan

The employer submitted a letter simply stating that their reason for not appearing was due to a conflict with another business matter on the same date, and that they did try to get the first hearing rescheduled. That change was denied so they are requesting another hearing via telephone. The letter does not mention what this other business matter was.

If I understand correctly, the ALJ will first decide whether or not the employer had good reason to not appear, and that decision will determine whether or not the hearing will continue?





Yes Dan, that should be the way it goes .. there has to be good cause shown for the non-appearance to retain any right to now present testimony.

If I had to pick one reason for which a denial of a postponement request was most often denied .. it would be the excuse that "the press of business matters would prevent the employer's appearance.

But having said this .. I know for a fact that cases were reopened regularly and non-appearance issues were overcame .. depending on which state it was. California was never what I would call an employer friendly state .. until possibly just recently and maybe because they have no money left.

If this was your appeal initially, then that would most likely explain the denial of postponement .. because allowing it for that reason would cause a hardship to you and that is "contrary to the purpose of unemployment benefits".

If it had been the employer's appeal .. then there might have been a chance for the request to fly because it would not directly cause financial harm to you if you had been receiving benefits.

Forget about an underlying argument that if you lose now .. you'd just be required to pay back more benefits .. I think that the non-appearance issue itself is because of this possibility.

You can search CA precedents though for any rebuttal to the employer's excuse for not showing up and get it on the record of the hearing that will now take place .. which is what I would do .. if I were in your boat to create a point for further appeal if necessary.

California unemployment precedent decisions.

Mar 31, 2011
Case Reopened
by: Dan

Sigh. Score a small victory for my former employer. They apparently called about getting the first appeal hearing changed due to a scheduling conflict but were denied. They have now requested a new hearing which was granted.

Among the issues to be considered (besides the original ones such as my eligibility) was whether or not there was good cause for "their" failing to appear the first time and if the prior decision should be vacated.

This seems like something that should be determined before granting a new appeal hearing as it really has nothing to do with me.

Looking for some encouragement here as I had hoped to be done with this stress. If my former employer's request was denied the first time, is a scheduling conflict sufficient cause to not appear and reopen my case?





Hi Dan

Dan,

What you are experienciong was a common occurrence .. at least in the biz I was in. Whether the non-appearance is deemed to have been with good or not .. will dictate the rest of the hearing.

The state file should now include the details of their request .. you should get your hands on the notes so you know the reason they requested a postponement and if the reasons for non-appearance was due to the "press of business" or some other insufficient reason argue the point .. Find yourself a relevant hearing decision in California.

Or go to the appeal office and ask about a copy of the rules or decisions that govern the issue of non-appearances.

Other than that .. prepare to present your whole case all over again .. only this time know that the employer may possibly be able to present documents, testimony and be able to cross examine you .. of course you can and must be prepared to do the same as well.

Yes, I know it's stressful .. that's part of the problem and a lack of "legal training" is why I recommend even claimants find representation for hearings, when possible.

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