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If my employer didn't show up for the unemployment appeal hearing will I win?

by Ava
(California)

Hi there, I just had my appeal hearing today and my employer didn't show up. But they wrote a letter. Do I automatically win because the judge still asked me questions. Also, I didn't ask any questions I just answered the judges questions with honest answers is that good?




Hi Ava,

I always advise being honest. But I also explain why we need to temper the desirable quality that goes to establishing credible sounding testimony .. without volunteering more information, than we are asked for.

No, an employer not appearing for an appeal hearing, doesn't equate to a claimant automatically winning a hearing.

But the advantage of the employer not showing up, is any letter, that serves as their written statement in lieu of giving testimony, shouldn't procedurally be given more weight, if it contradicts your own testimony.

The reason for this is a written statement cannot be cross-examined by a you, or the hearing officer.

It's why appearing for hearings instead of losing by default via a non-appearance is important.

Yet, I need to mention, my experience coordinating hearings for employers, is the very thing that makes me nervous for claimants who do win hearings because the employer didn't show up.

Before a hearing, I used to request postponements for employer witnesses .. for all sorts of reasons and the point of that exercise was if the request was denied .. I now had a well framed postponement request, just in case the claimant won, as supporting evidence for a board appeal requesting the tribunal appeal hearing be reopened, so the employer witness could finally provide first hand testimony .. to whatever the issue and burden might of been.

The disadvantage to this as a tactic to preserve a party's right to get due process is, the additional issue of whether there was good cause for the non-appearance, is usually the first issue to be addressed at any new, or additional tribunal hearing .. just so the hearing officer knows whether they should proceed on to the original issue, which were most often, in my experience .. good cause for the separation, whether that was a voluntary quit, or discharge for misconduct.

Comments for If my employer didn't show up for the unemployment appeal hearing will I win?

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Jun 04, 2010
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Employer did not show up
by: Anonymous

I just had a hearing yesterday and my employer did not show up. I gave my testimony and submitted a statement of all the events that had taken place. Will my employers see these statements? Right after the hearing my employer tried to contact me as well.



Hi,

They will see the documents if they manage to get a rehearing and you submit them again.

Feb 12, 2015
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base period
by: Anonymous

i was laid off in december 2014. filed for unemployment, got denied because the employer who laid me off wasnt liable. under the base period laws, my base period is july-decmeber of the previous year and jan-june of current year of file date. Which means my employer n that time would be responsible for my unemployment benefits. I quit that job 10 months before i got the job that laid me off. Will i get benefits?




Your comment hardly has a thing to do with the subject of the question you left it under.

But ... what state are we talking about? Or you can just check the voluntary quit disqualifications for your state in the non-monetary chartbook at the USDOL.

I link to the page with all the state comparison charts on the unemployment law page .

The monetary chartbook explains base periods and qualifying wages in a BP

Apr 27, 2017
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My employer did not show on the call...
by: Anonymous

I had a appeal hearing for my denied unemployment in the state of TX and my employer did not show for the conference call hearing. Do I automatically win? Will my unemployment be automatically approved?


Question first: Were you initially denied due to a voluntary quit, or a discharge for misconduct?

Sort of important for me to know anyway, if you really want me to give you some sort of answer to your question. What I know is the hearing was held on your appeal, but don't know if the issue was to find if you had good cause to quit, or your employer had good cause to discharge you for misconduct.

Either way .. winning is not guaranteed, merely because the employer failed to appear.

Who knows, they might of requested a postponement, but the request was denied. In this situation .. I would expect an employer to request a reopening, if the hearing decision were to go your way.

Chris - Unemployment-Tips.com

Jun 16, 2017
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Quit
by: Anonymous

I quit being managed out. Caused me to go on fmla from stress. Employer did not show up for hearing.



And .. your point is?

Chris

Jul 20, 2017
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Employer no show
by: Anonymous

I had an appeal hearing today but my employer didn't show nor was there a call in . The letter that was sent out by the Ui judge states that they were required to be present or call 48 hours in advance with the name and number of person representing them . I was asked questions and have an honest answer. The judge seemed surprised by my answers ( and shocked) and said she had nothing further to ask . It was a 15 minute process. Does this sound like it is in my favor or no.


Seriously Anonymous, there would be no way for me to make an informed guess as to what you're asking .. because I don't know what you testified to .. that shocked the hearing officer.

If you want to elaborate, feel free, just don't do it in another comment, but by taking the plunge and submitting those details .. here, where I accept new questions.

Oct 23, 2017
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Discharged for alcohol test positive
by: Anonymous

I was discharged for alcohol fail. I was made to go to the property to be checked by the nurse for a health check-up. My employer told me to file for unemployment. He said you might get denied,but appeal it and I will not show up for the hearing. Will I win

Nov 27, 2017
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Had A hearing today employer didnt show
by: Anonymous

Good morning, I filed for benefits previously and was denied for failure to prove voluntary quit, which I never quit in the first place. I was fired while out on STD due to a company policy stating after 90 days of leave they automatically terminate employment. Well I provided no documents the first time and lost. I provided emails showing me reaching out ot HR about me returning to work, numerous emails. They terminated me by mail termination effective September 15th. I was still on STD at the time and it didn't end until November 2, the examiner said he didnt need proof of that because it ended after I was terminated. I told him I was being honest about it, I thought I sent a letter from STD but he said he didn't have it. He said he doesn't doubt my honesty because I swore and was under oath. The company did not show for this phone hearing and was given a 10 minute grace period.Do you think I have a good chance, Im in Maryland.



Hi Anonymous,

It sounds to me like a case I'd say .. had a good shot at you winning, or in other words, a good shot an erroneous initial denial would be reversed on appeal, so you can finally start collecting benefits after being discharged for something other than misconduct because you couldn't return to work at the end of ninety days.

Too bad people don't actually heal per the requirements of their employers .. or we might never be allowed to get sick in the first place.

I think you have a good shot because whether your employer had to comply with the FMLA (family medical leave act) or not, your termination wasn't for anything that would fit with all that goes into defining what work related misconduct is, but in truth, because you simply weren't able to do your job when their policy said you had to be ready.

You said this was confirmed by the fact you were on a medically documented short term disability leave that extended beyond the employer's policy of ninety days and the date they terminated employment.

An employer who has less than fifty employer is not subject to the rules and guidelines of the FMLA where an employee can't be fired until twelve weeks of leave per year are exhausted.

In fact, an employer with less than fifty employees, can fire a person merely because they get sick, or stayed sick too long .. for even a week. But if that person then files an unemployment claim it would not be crazy for the employee to assume their employer might fight benefits by using a common strategy to UI claim where health is a major factor.

Others reading this might also recognize that common response that suggests the claimant wasn't actually discharged, but voluntarily quit when they failed to return to work from a medical leave of absence. Oddly, this is often enough for an initial denial, but may also fall apart, if the claimant appeals .. and knows enough to have some sort of documentation submitted into the record to disprove, or rebut .. a voluntary quit to literally prove the circumstances that explain it was a discharge.

And if I need to state my position again .. when an employee .. document, document, document, as if you might have something to prove one day.

The reason an employer not showing up is something I often ask about, is because I know what I used to do for employers and that was to request postponements for employer witnesses, prior to these hearings on a daily basis. When my request was denied, I also knew S.O.P was to use that request I mad for postponement, to get the hearing reopened to get the employer's testimony on the record .. albeit I also knew when I should be worried for the employer, who sometimes didn't understand what a non-appearance issue could do if the failure to appear at the first hearing, really wasn't for a good cause reason, or that which was good enough to of actually had the first hearing postponed.

It's just my opinion that it is all the procedural rules and regulation a state unemployment department may have that claimants and employers alike don't know about that really can get them ..both coming and going.

I think you're in good shape for a reversal though .. based on what you told me about what did happen at the hearing.

All the best,

Chris - Unemployment-Tips.com


Jan 26, 2018
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Appeal
by: CC

Hi, I had my appeal hearing yesterday, my employer didn't show..I quit my job due to impartiality and unfair treatment, I work in health care so asked my employer to move me to another case..I actually asked him twice to move me..he's a very small company and said..no, he had nothing for me, and told me to separate my emotions from my professionalism..anyway, I gave testimony..but don't know if I won?


Hi, I couldn't say either if I think you might win, or not. But to do that, it's because I know there would need to be more discussion that clarifies the conditions of why you asked to be moved to a different case, to determine if the employer saying no twice .. might be argued as being an unreasonable response.

Which is precisely why I offer my services as a coach to offer guidance to those who can't afford representation that knows how to win an unemployment appeal hearing, whether the employer attends the hearing, or doesn't show up, but often still manages to get the appeal reopened by appealing a hearing decision explaining why they didn't appear due to some good cause, just to finally get their testimony .. and or evidence into the record of the hearing.

Of course a claimant can do the same thing to get a case reopened, if they think they have a good cause reason, for not appearing at a lower level appeal hearing.

Chris

Feb 08, 2018
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Hearing win or lose
by: Anonymous

Hi I would like to know how do you feel about this did I win or no....My employer said I voluntarily quit after not giving me any post/site to work at for 6 months and before then they try to give me a pay rate of 9.50 after working for 10.50.

At the hearing they didn't do there questionnaire or show for the hearing.

I showed pay stubs and copies of fixed checks and how I was gonna lose 9-10% of pay for pay cut.

I also showed them write ups that they wrote, but supposedly do away. I also showed them checks that I called about and also, that I called non-stop, to see if there was work and was ignored. Only person I spoke to was human resources and she told me you know what they trying to do to you ( make me quit) but I stayed positive and asked if they were still hiring and she said we're always hiring.

Told the ref at that point it was out my hands


Hi Anonymous,

I hope you went so far as to opt into notifications, so you might read the answer.

Are you sure that HR person wasn't just toying with you .. because what they told you, that someone was trying to get you to quit, doesn't make sense to me .. because she may know full well, how to score points at UI hearings, especially voluntary quits where the employee doesn't know how to score.

Even I might of recommended to an employer to DNA (do not attend) this hearing.

Why .. because what you told me, leads me to believe you just might have refused an offer of suitable work.

One point I'd like to make first is that I don't know the name of the state your hearing took place in, but because you referred to the tribunal hearing officer as the "ref" I might guess PA, since I know that's what they still call hearing officers there.

I actually think you were on the right track to argue you had good cause to voluntary quit, that being .. you quit due to a SUBSTANTIAL change to the terms and conditions of your employment. Which is generally initiated by an employer and in your case, when they offered you continuing work at a dollar less per hour.

However, the problem I see with this argument, is you told me you proved the pay reduction to be around 9 to 10 percent of your previous pay.

Generally speaking, because upon occasion I have read state precedent decisions, that amount, equating to a substantial change in pay to equate to good cause doesn't sound to hot for your chances .. not to mention you were also trying to argue you didn't quit, by explaining you had called and been ignored for six months while you kept calling after you refused a dollar less per hour.

I'm also puzzled why you brought up the write-ups.

I assume you meant those reprimands should of no longer been counted against you, per some employer policy .. but it's still an argument that could be more useful, if you had actually been fired instead of refusing an offer of continuing and arguably, suitable work.

Mentioning you had been written up seems irrelevant to me, unless the plan was to win a hearing focused on the burden of the moving party to end the employment relationship for misconduct.

Which of course would go to how you were fired for something other than work related misconduct.

Chris


Mar 23, 2018
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employer no show to hearing
by: Anonymous

Hey I had an appeal hearing today and my employer did not show. I waited on the phone only to hear the judge say, there was no hearing today because the employer didn't show. She never got an statement from me, never heard my side of the story, She just told me to keep filing my weekly claims. What happens from here???



Three things could of helped to inform me, so I could reason why the hearing didn't go forward.


What state held the hearing?

Was the issue looking into a voluntary quit, or discharge?

Who had to appeal the determination, you, or the employer?

But since I know how to be the guessing type .. and not in the position where I know I need to be the verify, verify, verify type ...

I would say you initially received benefits after being discharged. The hearing not happening would then make sense as an appeal made by the employer. And because it's the employer who must MEET or SUSTAIN the burden of misconduct, and would be the party expected to go first at the hearing (party assigned the burden generally goes first), but there was nothing put on the record by the employer for you to rebut!

So, depending on which state it was held in, going forward .. could of violated your rights to due process .. procedurally speaking.

However, this doesn't mean the employer didn't do their own due diligence to make a pre-hearing request for a postponement prior to the hearing. I once did that a lot for employers because it literally is what can protect an employer, or a claimants right to due process when they appeal the dismissal and request a reopening from the board of review.

Of course I would expect in most states (meaning not all) the new hearing notice to have the additional issue of good cause for the non-appearance at the first tribunal hearing.

It's not uncommon for hearings to go down this way, however, it's more common for employers, not claimants to request reopenings .. or even know they should request postponements and if denied .. to not attend the hearing .. because that would be like waiving your right to the postponment, which attempts to provide good cause for a ppmt.

And if this is your case and the employer manages to get the reopening .. I would then make sure the new hearing notice had the additional issue of good cause, or not, for the non-appearance.

I worry this is more than anyone cares to know .. but I always hold out hope, some will read and get whatever point I might be trying to make .. about the processes AND HOW EVEN PROCESSES VARY FROM STATE TO STATE.

Apr 07, 2018
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Third Party instead of Employer for hearing
by: Anonymous

Hi, I recently took a short term disability medical leave of absence due to severe anxiety/depression. My condition has only worsened- so I voluntarily quit and was denied unemployment because my previous employer stated I quit for "personal reasons" and "I did not try to save my job before quitting". Needless to say, I appealed and to my surprise, (I worked in HR) they are using a third party for the hearing vs the HR manager which is not usually the case. Is the fact they are using a third party any indication of the outcome of my appeal? My reason for quitting was not personal, but medical and I have proof considering I was paid short term disability for a month- after they received proof of my diagnoses from my doctors.


Apr 07, 2018
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For: Third Party instead of Employer for hearing
by: Chris - Unemployment-Tips.com

What state is this happening in?

No, I don't think an employer using a third party UI claims administrator is what makes all the difference between between a claimant winning and losing. Because an employee, or a claimant can choose to focus on the relevant facts, to have them well prepared with the added weight of relevant documentation, to prove, or rebut the burden of proof, related to the unemployment insurance hearing issue.

You must prove fault for quitting as attributable to the employer .. even when quitting for health reasons.

Generally, when an employer chooses not to extend a medical leave, the burden of proof is effectively, shifted to the employer to prove misconduct .. and we all should know someone who continues to be ill enough to not be released to work, even with restrictions and the need for work accommodation, is not something considered willful misconduct.

Questions:

I don't know if it is safe for me to assume your STD leave was also being protected by an FMLA leave. (Family Medical Leave Act)

If your job was protected by FMLA, when you decided to quit your job a month into your leave, did you quit because you had exhausted all of the maximum twelve weeks FMLA can protect a person's job in one year for those who work for employers with more than fifty employees (or in some states, less than fifty)?

Or did you make a personal choice not to ask for an extension of leave, up to include all of the 12 weeks when your doctor wouldn't release you back to work on the leave's RTW (return to work date)?

Did you quit your job on the advice of your doctor? Because that might make simple work of knowing where you should focus more.

If you did quit on the advice of a physician, did you make your employer aware you were quitting on the advice of a physician .. thus batting the burden back at them?

If you did inform the employer, did the employer ask for the necessary medical documentation to make a decision about extending even an exhausted FMLA leave?

Or, ask if you needed an accommodation, to return to work?

And maybe now would be a good time to ask if you were denied unemployment because you quit without good cause, or because you are not able, or available to work anywhere, for any employer, at least until you can lift this sort of conditional eligibility denial, with a document from your doctor fully releasing you, or with some restrictions requiring a work accommodation, to make you conditional eligible to finally collect?

FMLA, not STD payments that supplement wage loss too, is at the heart of the burden of quitting and to not "exhaust" efforts that would enable a person desirous of saving their job wait to quit.

When people quit before exhausting the protection of FMLA, it translates to me, to choosing not to wait until the appropriate time when the burden of proof for ending the employment, more, or less naturally shifts to the employer .. who need to fill a position they've been saving for someone who can't come back tot work yet.

Apr 07, 2018
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Reply
by: Anonymous

This is for the state of Georgia. I did not qualify for FMLA because I had not been employed for the required time frame of 12 months. However, I did meet the requirement of 6 months for short term disability. My doctors suggested a different course of treatment since I was not responding to medications. The treatment, once approved by insurance, is 4-6 weeks long, and is outpatient- meaning I would have to go into the doctors office 5 days a week. The treatment is called Transcranial Magnetic Stimulation. The level of my depression and anxiety is debilitating and the fact that they recommended this level of treatment only further confirms my inability to work. I could have continued to extend my leave but the fact that I had no definitive time frame of when or if I will recover, I felt it was only fair to give my boss two weeks notice to find my replacement because my condition has gotten so severe. My doctors didn’t flat out tell me "quit your job". I felt it was the right thing to do in order to put my health first and because I knew for a fact I was unable to return in the near future.


Hi again,

I understand. You're were being considerate and that is commendable, but that doesn't mean that behavior equates to getting benefits .. afterwards.

It does, however, create your problem, and a valid reason for why the employer responded the voluntary quit wasn't their fault, because you didn't inform them and give them a chance to help save your job.

The state of Georgia could very well be rule in the decision the quit was for good personal cause, but that is not how one meets their burden, in that they can meet the requirement of how UI law works when someone quits due to health reason.

Generally we can find a provision, or a regulation requiring a voluntary quit for health reasons without exhausting medical leave and/or disability, to be prompted by an objective decision to follow the advice of a professional .. e.g., a doctor.

You seem to have indicated you do not yet feel able to work anywhere, due to depression that is debilitating, but until/unless you can get that opinion backed up by your doctor, it's not objective .. because it's not predicated on the advice of your doctor.

My thought is, if I have assumed correctly, even if you were to win this appeal hearing on the separation issue, you could expect to still be disqualified from receiving the benefits, because you say you cannot meet a basic condition of collecting regular unemployment benefits, which is to be actively seeking work and ready, able and available to accept suitable work, if it's offered to you, in any week you claim benefits.

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