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A previously existing condition was exacerbated by treatment on the job....

by Valerie J.
(New Jersey)

....I continually brought my complaints about the abusive and harrassing behavior of the employer to the HR person. Other employees witnessed this behavior and several others were also harassed in the same manner.

Eventually, the treatment led to an exacerbation of an existing condition that I had been treated for in the past, a condition that was under control with medications.

On a Saturday, the employer yelled and screamed at several of the employees, including myself, for something we had no control over. I was visibly shaken and had to remove myself from the job, temporarily, to try and recover sufficiently to continue working.

Like many times before, too many to mention over the year I was employed there, I tried my best to recover, but was so distraught that I had had enough. The following Monday, my day off, I was called in the evening by a fellow employee who stated that another similar situation like what happened on Saturday had occurred and that "I was going to be in for it" when I came to work on Tuesday.

I called the HR person that night and asked if they would, once again, speak to the employer about the verbal abuse. I told this person that I could get another job but wanted to stay there. I was called back and told that "the (employer) she was never going to change and that if I had another job I should take it".

I was also told not to come to work the next day.

Because my injury was so severe, I was seen by my physician and was written out of work. Subsequently, I filed for and received Temporary Disability which began that Monday that was mentioned before, the day I called the HR person.

The pay at this job was bi-weekly and the pay for the last week worked could be picked up the following week. Because of the severity of my condition, outlined by my physician in detail and covered under ADA, my husband went with me and attempted to get my pay while I waited in the car. When he returned without the pay he told me I had to sign some insurance forms for COBRA.

I went into the job to get my paycheck but made my husband wait outside. The employer had me sign a document that I was told I would have to sign or I would not get my pay. Under my condition, I wasn't cognisent enough to understand what I had signed.

Moving forward, I was Disabled for 6 months and when I had recovered sufficiently to return to active employment, since I was now unemployed, I filed for unemployment and was denied. The reason stated was, "left voluntarily because you felt the work environment was adversely affecting your health. There is no evidence that the conditions were so severe as to cause you to leave available work to become unemployed"

The determination goes on, "you failed to discuss your problems with your employer in an attempt to obtain other work prior to leaving". I appealed the determination and was granted an in-person interview.

My husband acted as my non-attorney representative since he has a good knowledge of law and has previous experience. The two of us as well as the employer and the HR person attended the hearing. The employer lied continuously about the conditions and gave additional false testimony.

One thing that the employer did offer as evidence was that for several months leading
up to my separation from work that my condition was noticed and that I was given the ability to leave work early or remove myself from the workplace in order to recover sufficiently enough to continue.

Even though the employer denies ever yelling at me, using profanity towards me or making derogatory statements about me or to me, it was offered that there were incidents where the employer was dissatisfied with individual acts that were part of my job. The employer also denies spitting on me even though the night of that event I was called and was apologized to and begged to return to work, even told that this behavior would stop.

My husband listened in on an extension to every phone call between myself and the employer as well as the HR person. In addition, other employees also related to my husband and myself about the environment and the harassment by this employer to others, to themselves and also toward me.

One of these persons was contacted by phone during the hearing and also lied about the conditions at this job and the manner of the employers conduct.

I have asked for the copies of the tapes for that hearing, which I have yet to receive. A decision from that hearing has not been generated yet either.

My husband suggested that I quit the job on several occasions and that when the spitting incident occurred that I call the police and file charges. Since, at the time, we were a one income family and bills had to be paid, and under the influence of my condition, I refused his requests and continued to try and tolerate the conditions at this job.

As I mentioned, I eventually became so sick as to warrant being written out of work. Since I never did quit, and I did not intentionally sign a document that said I quit, what are my chances of winning this hearing and recieving benefits. Should the original determination be upheld, what recourse do I have.

Can I file suit against this employer for any wrongs that were perpetrated against me? Can I get records of former employees so that they can verify my statements about the abuse by this employer. Since this type of abuse was also directed towards customers, how can I get them to come forward. How can I compel other employees to tell the truth?

Hi Valerie,

This is by no means, a general question about unemployment.

I will tell you this .. an unfavorable unemployment hearing decision does not prohibit you from seeking other remedy in different venues in New Jersey.

What was the issue on your unemployment hearing notice? I can assume the employer said you voluntary quit and the testimony as to any performance issues the employer had with you should have been objected to as irrelevant.

You should have prepared for this hearing in such a way as to prove the employer forced you to quit .. the burden was your and you did not mention anything about the documentation or subpoenas for documentation you might have submitted or even an effort to present "corroborating witnesses" to the events other than your husband who listened into phone conversations.

Finally, if you haven't received a decision, what makes you think this isn't going to go your way?

Don't answer that .. it was just a rhetorical question.

Issues and burden of proof, when you go to an unemployment hearing .. it is assumed you understand this stuff.

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May 31, 2010
Just to make it clear....
by: Bob P

After reading the original post, I took it upon myself to suggest that this employer MAY be trying to head off a case of discrimination, which is far more damaging than just paying unemployment credits/insurance rates.

Other Lawyers have commented on, and also discussed with me, how these hearings are less formal. This employer added information that may not have been relevant at the time but could raise other issues that could cause this to be remanded back to the Appeals Tribunal for further "discovery".

This additional information offered by the employer SHOULD be helpful in presenting a more favorable case on the claimants behalf so long as documents and/or witnesses be provided which will verify that position.

If there was an objection, in any form, to the subpoenas not being granted, no matter what was expected of them as far as testimony, there should be reason to re-open the appeal and additional testimony gathered from these witnesses.

The suggestion that the employer has an employee "in there corner" and that employee lied, it is up to you to show that this is true. If two employees give conflicting testimony, then there is reason to expect a reversal.

If the employer made statements that show reason to believe there WAS a condition present and yet denies that they did anything to warrant it, you could raise the defense that testimony from the treating physician could verify contradictions in the employers testimony.

Showing that your condition could not have been brought on by your "imagination", which should be verified by the physicians testimony and that any lapse in seeking treatment or other lapses in judgment are also a condition of your disability, should also be given credibility.

Chris....thanks for the vote of confidence. I believe simply that "If you don't know your rights, you don't have any".

New Jersey Board of Review just "reviews" the case documents and tapes to determine what, if any, objections have merit. They may send the case back to the Appeals Tribunal for further testimony or agree with the determination. If the second is true, the case will have to be submitted to the New Jersey State Court of Appeals.

Hi Bob,

I agree, if you don't know your rights .. you don't have any.

May 27, 2010
Bob, Do you have some personal knowledge ?
by: Chris

Bob, who are you? Do you know what's going on with Valerie? .. because I sure don't.

I'm beginning to wonder just how well represented she was by her "husband" that she is now asking basic questions about board appeals.

1. The referee is given wide discretion in judging credibility .. you know .. who's lying and who's telling the truth, who's the most persuasive .. etc.

So I would clarify for the board .. how the referee procedurally erred by not allowing the claimant to admit evidence into record that would prove the lies.

2. I have no idea if taking those lies to the attorney general would do any good. It sort of sounds likes going over the boards head .. but I can tell you that I have no experience with something like this .. so I don't know anything about this.

3. Are those issues directly related to you and your situation?

4. Do you know that Pennsylvania is an all party consent state?

5. I don't know.

6. Why wasn't the employer questioned about this during the hearing?

7. My two cents worth on "UNEMPLOYMENT HEARINGS

Unclutter and focus on the reason for denial. Determine your opponents weaknesses before the hearing and take care of finding the nails before the "referee hearing".

You know what really is bothering me ..

The referee sighted the date I was finally able to see my doctor as the date of the injury even though I was injured as of 8 days earlier. The physician was unavailable prior to the date I was able to see him.

This begs the question .. how serious could it have been if willing to wait 8 days for an appt. instead of heading straight for the emergency room.

I realize you keep saying that the employer "lied", but not once have made clear what really happened.

If in fact the referee made procedural errors such as ..

Refusal to issue a subpoena or allow documentation from you to be submitted then it might be determined that another hearing is in order.

Before additional evidence or testimony would be allowed .. you would have to get the board to "remand" back for the taking of additional testimony and submission of new evidence .. or it may just begin all over again as a de novo hearing.

They only need to consider the record established at the hearing ..

Do you not think it would be relevant for me or anyone else reading your account to know what you know.

"As my husband expected, there were three paragraqphs of reasons why I should get my unemployment and a few sentences at the end denying them."

Do yourself a favor hire Bob P... or ...

UsePA's free case law search to find relevant case law for your board appeal or maybe even

May 27, 2010
Not the ALL means
by: Bob P.

This case will not end here. Any further action against this employer will not be limited to Unemployment issues nor just directed towarsd the Board of Review.

Actions by this employer are CRIMINAL and charges must be investigated. Employers will lie for many reasons. This employer lied and directed others to follow so that the harrassment lawsuit would not have any other testimony showing her in a bad light or that she did indeed commit horrible crimes against this employee.

May 27, 2010
The Verdict
by: Valerie J.

I just got the verdict from the Appeals Tribunal Referee. It was not in my favor. I am going to appeal that decision.

As my husband expected, there were three paragraqphs of reasons why I should get my unemployment and a few sentences at the end denying them.

Since the employer, her "partner" and only one of the employees gave false testimony under oath and the fourth, who could have contradicted that testimony was "made unavailable" by the employer. That employee was scheduled off for that day so that they could not be contacted by phone. Since I do not have any other way to contact them and the Referee did not issue a subpoena, no testimony could be taken. The other employee was also not subpoenaed and did not show up in person, though they were at the employers business and the employer offered to have that person contacted.

The referee sighted the date I was finally able to see my doctor as the date of the injury even though I was injured as of 8 days earlier. The physician was unavailable prior to the date I was able to see him.

I immediately requested the tapes from the hearing but have yet to recieve them. I am going to submit a second request for them.

In my opinion, this was a joke that nobody is laughing at except the employer.

My questions are;
1. Can the "lies under oath" be a point to recommend another hearing so long as I can get the other employee to testify?
2. Can those "lies under oath" be brought to the Attorney Generals Office for investigation?
3. Can other information, such as the non-payment of overtime wages or other fraud by this employer be brought to the Board of Review or do I have to get a new hearing?
4. Can I present tape recorded phone conversations as evidence?
5. Can I have another document drawn up by the physician which contains a more in-depth explanation of the injury and it's cause?

I know, for a fact, that this employer is being investuigated for insurance fraud and I was a witness to this and will, or may, testify to that in court if needed. There is also an investigation into the non-payment of overtime wages being conducted by the Division of Wage and Hour Compliance.

Another question;
6. If the employer or her agent offered testimony of being contacted by another potential employer concerning a job for me, but that is also untrue, can I get them to tell exactly who they were supposedly contacted by and if they cannot, what then?

You mentioned other areas where I can bring my complaints to in New Jersey, where specifically do you suggest?

Whatever answers you feel comfortable giving me will be greatly appreciated and maybe this will help answer questions other may have concerning this process.

May 19, 2010
Additional testimony/subpoenas
by: Valerie J.

Just to make it clear, the other employees who were witnesses to the environment WERE supposed to have been subpoenaed to appear in person to give testimony and be questioned.

Since I was aware that these witnesses may be tainted, threatened or paid by the employer to give false testimony, I requested that the appeals tribunal subpoena them. I din't want them to appear as MY witnesses since they would not verify what really happened.

Since testimony at this hearing would be admissible if another hearing or appeal would be needed to overturn a decision against me, when the employer started "going off" some of the information supplied, even though irrelevant, could be used against the employer to show criminal acts at a trial where actual rules of procedure apply. I let her hang herself.

In addition, just having one of the two other persons who should have been subpoenaed on tape that day opens the door for further examination and an objection to not allowing the other witness to be questioned on that day. The employee admitted that that employee was "unavailable" and not at work that day because that employees normal day off.

Once I get the tapes from the hearing I can be more precise about the details of all the "additional" testimony the employer gave that normally would have been irrelevant. The employer brought all my timecards, some of which have overtime hours not paid, which are being investigated by the division of wages and hours.

My husband explained to me that normally he would have objected to the extra testimony on those grounds, but he knows that this employer was giving testimony and submitting documents that could be used later.

The employer also admitted documents that were forged which would not have been accessable through subpoena for this hearing as well as other information that could be used in discovery at any formal hearing.

If any information the employer was forfiting could not have been defensable or shown as fraudulent, objections would have been raised. My husband was glad that such information was offered and didn't have to be out in questioning without paperwork to back it up.

Well, good for you .. you sound like you had a plan of attack and executed flawlessly and got precisely what you wanted.

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