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Employer appealing decision of eligibility

by Mark
(PA Unemployment Benefits)

Hello, I was brought into the office during the middle of my work shift one night and reprimanded. My boss, at the time stated that I was being written up for foul language on the work floor. I denied what they stated I had said. They made me write up what I could remember from the incident in question. There is always joking and foul language not only at an employee only area where they stated I said these things, but other workers say more unacceptable things on the gaming tables in front of customers (this is a casino dealer job) I was told that I was being sent home and not to come back into work until contacted by H.R.,(This happened on 6/18/11, I was set to begin receiving vacation pay on 6/19-6/22) I feel they timed this perfectly. I was escorted by security to my locker and told to clean out all my personal belongings, as if being fired. They also took my time card swipe badge and name tag along with the Pennsylvania Gaming License which I paid $350.00 out of pocket. When trying to contact someone about when I may be able to come back to work, They had stated I quit. I called my direct supervisor directly involved with the situation and pleaded for my job on the phone. I have no record of this, I only have phone records I could try to bring with me when I receive the appeal date for referee. I have sent in several complaints to the Pennsylvania Human Resource Commission, but have yet to hear back. The employer originally refused to turn in my wages and after 5 months, I was finally found eligible and retro-pay was given to me. Now I have filed 2 separate bi-weekly claims, however have not seen any of these payments as of yet. Originally, I thought I was found ineligible and sent in an appeal which was kick backed to me stating that I was already found eligible. Although they are still holding up my two most recent claims. I feel this was something personal, although that isn't going to be my defense. I would have never quit without getting my vacation pay first, I was escorted off the premises by security (routine) and have so far had to jump through hoops. I am so scared to spend the money they have released to me. I have contacted an advocacy group to help me if/ when the appeal does show up in my mailbox. I know the burden of proof has switched to my employer, but what advice can you give me to help myself, like you have helped so many others.

I was found eligible under section 402(e) PENNSYLVANIA

1.Claimant was discharged for violating rule.
2. The employer did not provide information to show the claimant violated rule.
3. The claimant denied violating rule.

Because I was found eligible I would also like to know was it correct to withdraw my appeal based on the decision of eligibility? Did I do something Incorrect?

Why do you think my two most recent claims have not paid?

Do you think I will be able to be victorious at the referee hearing?

Thank you God Bless, Merry Christmas and Happy Holidays!
Mark T-

Hi Mark,

Has your advocate promised you victory?

Why wouldn't you withdraw an appeal of a determination which allowed you benefits? Makes sense to me and have done the same on behalf of employers.

First, I have no idea why your benefits are being held up. That is something you will have to contact the department about. That's what I did.

I spent so much time on hold contacting states to ask questions .. I used to
have my favorites to sit on hold with because I knew the Muzak by heart. I also knew the ones that were so cheap they had none.

I also know that to change your eligibility status and stop payments, the department would have to issue another determination just so you could appeal, and you didn't mention receiving a later determination denying. So, call the service center and ask where your money is.

As I understand what you've told me, you denied the accusation by your employer. You wrote a statement and were summarily suspended and escorted off the premises.

You claim the employer does not "uniformly enforce this policy" for all employees. Better if you can prove this.

However, you failed to mention if this might have been the last general policy violation you were written up for and that the employer added to their pile of proof when it was tucked into your personnel file.

I'd also like to know the contents of other statements regarding this incident that might be included in the appeal file. (When you get the hearing notice, you will be able to review the file at the referee's office. But, because it's PA you might not know all until docs are submitted during the hearing, this is why in person hearings can hold surprises.)

I'd like to know what the employer rules say precisely, about this type of misconduct. I'd like to know who you speculate might be the first hand witnesses at the hearing.

I'd like to know if you can obtain your own first hand witness to this incident you were discharged for.

You've asked me to make a judgement on whether you will be victorious, when in fact I am completely under-informed about what the employer will bring to support THEIR burden and what you will bring to effectively REBUT that burden.

If you want me to speculate .. then I think it's odd that the employer reported this as a quit .. that's a red flag in a case where there is a suspension .. which almost always leads to you being called back in after the investigation is complete .. to be officially discharged .. because in PA you may very well be entitled to benefits during a long drawn out suspension. However when they discharge you .. and it's for real misconduct .. that may call for a new determination.

However, responding as a quit could also indicate that your employer uses a cost control company that simply accessed the payroll data and found you coded out as a quit. The appeal letter might also have been an automatic response as well when they received the determination .. and when someone like me got a hearing notice .. may finally call the employer to start getting some details .. such as documents and who would be the appropriate witnesses to attend the hearing etc ., etc.,. It's called a case review .. and only then did I make a decision about proceeding or withdrawing appeals.

So you see Mark, the more facts a person knows about the the case .. the easier it is to make a judgement.

So my best advice to you is to be completely forthcoming with your advocate, because solid preparation includes not dealing with surprises for the first time .. at the hearing.

Rebuttal arguments such as yours seek out the weakness in the oppositions burden and develops ways to expose the weakness including just a really good cross examination of the opposition to get them to trip up and expose themselves.

But, it is extremely important to see your own weaknesses and to deal with them .. because that's what the other side is looking for.

Happy Holidays!!


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Sep 20, 2012

WELL HELLO CHRIS! Just after reading a few of your articles I know now for sure I do not have a chance. I had no witnesses they are all still employee's that our working there. I worked for one of the largest well known University's in Maywood, Il. also they have a campus in downtown Chicago. I was employed for 15 1/2 years.

Never was written up for sick time, being late or not being a good employee. However, I was written up for patient complaint's and heresay. Last june i was asked to come in on an earlier shift at 6:30 am and I agree but they asked me two weeks ahead of time and my regular work hours were 8:00am so needless to say I forgot! I was extremely apologetic to my supervisor and she let it go, then on another day i forgot again this time she wrote me up! Guess who won on the telephone hearing today? I had no representation should i fight it?

One write up? For what, patient complaints or missing a meeting?

What were you discharged for?

I seem to be missing some important details. Additionally .. the burden of proof belongs to the employer in a discharge for misconduct.. so I'm not sure what a witness would of testified to .. or why you've assumed you couldn't of won.

My position is that when someone does appeal .. whether the first time or to a board .. they need a professional hearing rep for lots of different reason, not the least of which is to protect rights to due process and object and all the appropriate times in case an appeal to the board is needed.

If your telephone hearing was today .. there is no way you've received the ALJ's (administrative law judge) decision yet.

So, how can you fight it .. until you know what the reasoning is and what the decision is?

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