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Employer appealing ALJ decision in NYS

by Barbara
(New York)

In December 2011, after working for 21 years at the same company, I resigned my position. My daughter had been treated unfairly and wanted to appeal a disciplinary action. She worked for the same company. Under company policy, the person that would hear her appeal of the disciplinary action would have been the Executive Director, my immediate supervisor. Two of the most incriminating issues in her discipline letter were raised by another employee who happens to be the wife of the executive director. She felt that a conflict of interested existed because of the relationship and I agreed with her. Suddenly, after 21 years, it became a hostile work environment. I was called in and questioned about the conflict of interest on a Friday. I asked if I was being terminated or losing my position. The answer was "We don't know yet." On Monday, when my supervisor arrived at work, I asked him if I was being terminated. He stated that he was not prepared to talk with me and asked if I could come back later that afternoon. I agreed and left until the time of the meeting.

When I returned, I was offered three choices: resign immediately under regular agency policy; I could look at other available positions and if they thought I was qualified, I could apply (it was indicated that there would be a downward adjustment in my pay); or I could accept an "early retirement" package that included a severance package and required me to sign a general release that basically said I could not take any leagal action. They gave me the paperwork and I left. I returned three days later and officially accepted the retirement package and submitted the signed general release.

I filed for unemployment and was approved. The employer appealed the decision. I had an appeal on May 4, 2012. It was held telephonically. My employer was represented by an attorney and had two witnesses testify. I did not have legal representation. I received written notification that the ALJ ruled in my favor.

Today, June 6, 2012, I received notification that my Employer is taking this to the Appeal Board. Financially, it would be very
stressful to hire an attorney. If the ALJ's decision is over ruled, can I be the one to take the appeal further?

The executive director chose not to be present at the hearing. The ALJ asked the employer's attorney on more than one occassion if he wanted to postpone the hearing. The response was negative, stating that the other witnesses would suffice. I'd appreciate your take on this issue. Thanks

Chris's Response: Employer appealing ALJ decision in NYS

Hi Barbara,

My take on this has to do why I never .. I repeat never, used to encouraged an employer to attend a hearing without the proper direct or first hand witness(es) needed to rebut the testimony of the claimant employee.

Instead, especially in NY ( a three strike state), I would put a request for postponement into the record prior to the hearing because I knew the state would dismiss an appeal without prejudice three times therefore, always allowing a reopening without requiring the appealing party to show good cause for the non-appearance.

Does it make some sense now why the ALJ kept on asking the employer's attorney if he wanted to postpone? It's common practice for savvy employers to know this in NY and now, I hope more employee claimants know this about NY.

You, as the party that won should be allowed to also submit a "written argument" stating legal reasons why the board should allow the ALJ's decision to stand.

The fact that the ER's atty kept refusing the offers of continuing the hearing is important ..

It is an important thing to know in any state, but absolutely ridiculously to ignore in a state the likes of NY.

Your written response to the employer's appeal to the board is called an affirmation letter.

You can cite relevant case law to prove your point of the need to affirm the ALJ decision.

What did you have to choose between .. a quit in lieu of discharge or a substantial change to the conditions of your employment (lower pay and position) that existed for twenty-one years.

Ridiculous that they even attempted to fight this .. probably on the premise that you refused suitable work???

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Jun 07, 2012
Thanks for Fixing Error
by: Anonymous

Thanks for fixing the problem! I did find a case I could cite regarding a reduction in pay and significant changes to job responsibilities. Fingers crossed. I let you know the results!

I would also like to draw your attention to this decision. You will have to extend the reasoning as to why it may be relevant, but it has to do with that lawyer's refusal to take the offered continuance when in fact that is what he should of done so he could of had the "boss" appear to offer direct testimony.

Jun 06, 2012
Thanks for quick response.
by: Anonymous

That's for your insight, Chris. I'll get working on the affirmation letter right away as I believe it has to be submitted within seven days. I wish I was more informed on citing other legal cases but I'll give it a college try! I'll be sure to let you know how the review board acts. Wish me lots of luck. Thanks!!!!

I think you'll be fine .. if anyone needs luck, I think it would be the employer. I can't imagine on what grounds they are now appealing!

By the way, some of those explanation at the NYDOL's interpretation indexes .. link to precedent unemployment decisions.

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