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OHIO -Employer Appealing initial award (det. code 2.1731503-1) do I have to pay back if I lose?

by Jennifer
(Ohio )

My employment with Pacific Sunwear was terminated on 1/27/09 under policy violation. I worked for 2 years with the company as a store manager and had never had any prior write ups until the week before. On 3/09/09 I was awarded benefits because it was ruled that I was unjustly fired. Now on 4/1/09 Pacific Sunwear is appealing the initial award, based on the fact that I was fired for a policy violation. I'm not concerned with whether or not I keep receiving benefits. As a matter of fact tomorrow I start my new full time job. My concern is, if I lose the appeal will I have to pay back the unemployment? It's almost $2000, and I used that money for my normal bills such as rent, car insurance, utilities, grocerys...etc. over during my two months without a job.

Here's background on my case:
I was fired because I let an hourly employee work off the clock. I willingly told this to my district manager and she terminated me. On December 27th, 2008, a deposit for almost $3000 was taken. The regional loss prevention manger did phone interviews with the two assistant managers who worked for me. When neither of them would admit to taking the deposit, they interviewed me. I did not take the deposit, and told them that. They then told me that there would be a large investigation, and that they would be subpoenaing video tapes from stores near by so if I had ever done anything wrong it would be better to let them know. I told them everything I may have done wrong (nothing was major) "One time when taking the deposit in the morning, I ran to Staples first to make copies, then went to the bank so I didn't have to wait in the bank line as long...etc." I also told them how all throughout holiday I would stay sometimes till 1 or 2am to finish shipment or window changes. (we ran on very minimum hours, since I was salaried I could work over my 40hrs didn't count as overtime, I was expected to.) I told them that in Nov. 2008 the day before my first regional visit as a store manager I worked from 7am to 11pm, at 11 my boyfriend who is still employed with Pacific Sunwear but works at another store as an hourly assistant manager called after he got of work to see when I would be coming home. I told him I was going to overnight to get the store ready for the next day, he offered to come help me. I allowed him to help. We processed shipment, and left the store at 4am. I thought nothing of this because a year ago, when I was an hourly assistant I came to his store to help him with a floorset when he was short staffed. His store manager and our district manager found out about it and nothing was done. The DM actually made the comment "well at least she helped, it's more than the people that actually work at THIS store would do."
However, when I told this to the LP manager and my DM they terminated me because I allowed an hourly employee to work off the clock.
The week before I was given a written warning for falsifying company documents. Which I did not intend to do. We had this Known Loss Report and every night you put how many defeated sensors you found or theft incidents occurred. Every money it's my job as SM to check that the Known Loss Report has been done. It was not filled out for several nights, I put a dash through each date and initialed next to it. I was thinking in my mind that it was at least showing that I double
checked the form and was acknowledging that it had not been filled out. My DM told me that she read it as that I was stating that there was no known loss when I couldn't have possibly known if there was or not. The thing is, I didn't fill out the form as 0 losses or $0 dollars, I just signed next to the empty ones and initialed next to the completed ones. Once she told me how she wanted me to fill it out I understood, I didn't do it with malicious intent. Like I said, prior to this I had not been written up. It's my belief that the company is trying to turn over its entire staff of managers to move in new people at a lower pay rate. They've done this to and are in the process of doing this to other managers as well.
So with all the being said, how can I deal with this appeal. I don't care about getting future benefits, I just hope I don't have to pay the ones I've received back because I don't have them, they all went to bills. My new job also pays me 1/2 of what I used to make, so I won't be able to pay them back...since 1/2 of what I used to make is exactly what i need for bills.

Thanks!
Jennifer



Hi Jennifer,

Let's start with the overpayment possibility and how Ohio deals with that .. if the initial determination is reversed. Ohio does have a wavier provision, but it does not apply. The state of Ohio expects to recover 100 percent of any Non-Fraud overpayment. They will reduce any future unemployment you may be entitled to from 3 years the date the decision becomes final. They are allowed to take your tax return (I'd say this would be a state tax return, but I'm not for sure). They do not assess any interest and there is nothing in the law that would let them take civil action ... collection.

Now a finding of unemployment fraud is a bit scarier. If anyone is interested in this subject. The way each state deals with overpayments can be found by clicking
"overpayments" on this page. If you take a look at the Max prison sentences for unemployment fraud .. it should give you pause before telling a story to the unemployment department.

Jennifer as far as your case goes .. I'm going to focus on the "final incident". As far as I can tell the thing that prompted the employer to fire you was allowing your boyfriend, also a company employee to work off the clock. If this same DM who discharged you also commended you for doing the same thing previously, you should focus on that fact. You should have your boyfriend be a witness. If this might make him nervous you can tell him that if the employer retaliates against him they are doing something illegal.

If they bring up the falsification of document issue .. and they will, focus on why you think it should have been viewed as an inadvertent error. The term "falsification implies intent and you want to focus on diminishing any possibility that a hearing officer may see it that way. Personally, I'm having trouble understanding why this was never an issue in the previous two years?? Was it a new procedure??

Of course you can raise your belief that you think the employer is targeting manager for termination to reduce cost.

As long as you were honest with the state from the beginning, there would be no reason in case of a reversal for the subsequent overpayment to carry any fraud issues.

Those LP people are great at getting people to admit things through use of tactics .. such as in your case.

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