Why Employees and Employers Lose Winnable Unemployment Appeal Hearings

by Chris - Unemployment-Tips.com
(United States)

Every state has a bevy of similar precedent unemployment decision and this one is centered on a responsibility of searching for and developing an argument that has merit going to unemployment laws.

Although this is quoted from just one one state unemployment precedent, it makes clear a very valid point to keep in mind when preparing and supporting the correct argument that might of made a difference to the employer.

"It is the duty and responsibility of a party, not the court, to search for and uncover legal authority in support of the party's argument."

Can you find the authority for a potential argument this employer may of missed in Michigan, by using DOLETA's Coverage chartbook about unemployment insurance benefits?

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Oct 12, 2016
Necessitous and compelling (Pennsylvania)
by: L.T.

Greetings Chris,

Thank you VERY much for the response! The time you took to answer my question(s) is greatly appreciated.

Back in 2015, The Pope visited Philadelphia. For an entire week, Septa operated on a VERY limited schedule - limited in that trains were not moving in or out of the city. My previous employer was located several miles north of Philly, thus rendering me unable to get to work.

At THAT time, I reached out to my manager and inquired about the possibility of working from home. It was explained to me that work from home privileges were extended only to management, NEVER to regular staff. I am explaining this, as it speaks to the most recent transportation crisis that lead to me resigning. Working from home, had my employer relaxed that policy, would have definitely preserved the employer/employee relationship. I absolutely raised these points during my hearing. My former employer did not attend and therefore could not refute this.

To speak to the question of my injury: my medical records and physical therapy progress reports were regularly forwarded to the company that administered my former employer's short term disability plan. That company would then forward those same records/progress reports to my employer. It was medically documented that I was being treated for hypertension and that one of biggest challenges was sitting/standing/bending my right knee. Given this information, my former employer did not offer any accommodations, such as working from home. This again let me know that they were not going to relax their work for home policy. I also raised these points during my hearing.

As far as carpooling/ride sharing; I was literally the ONLY person who lived in my area. My former employer had a high turnover rate that was due largely in part to its remote location. I was pretty much the only employee without a vehicle and, for the most part, a lot of my coworkers lived locally.

I did reach out to H.R. the day after I was made aware of the crisis. My manager was made aware the day after that. Again, neither offered any type of remedy.
I know that this is a lot, but my situation is rather unique. I thank you for taking the time to answer.

Oct 12, 2016
"Necessitous and Compelling" (Pennsylvania)
by: Chris - Unemployment-Tips.com

Thanks for the objective and relevant question.
If you had used the form here to submit a question, instead of a comment, I could of moved it to the PA unemployment questions, or those about voluntarily quitting.

Thank goodness every claim denied can be appealed to give us at least a chance for the unique causes of separation .. to be judged on individual situational merits.

For those who don't know how Pennsylvania unemployment law is set up, it's one of ten states not restricting good cause to a quit being attributable to an employer in unemployment law itself, therefore, no need for specific provisions .. which make exceptions for certain good personal cause reasons to quit in states that do require fault to be on the employer.

Without the necessity of attribution of fault to an employer all personal reason get boiled down to use of words like compelling and necessitous being enough cause .. if you can make those two words stand in your case to be self evident through your own exhaustive efforts to preserve employment.

But as you've learned, "exhaustive efforts to preserve the employment" can mean lots of things up to and including the necessity to show the fault was the employers to cause a person to be compelled to quit.

I'm hesitant to second guess what the referee will decide since I wasn't a fly on the wall.

But, let's go back to the initial determination and I'll try to play devil's advocate to find some things that might of been missing as an effort from your very straightforward account.

Did you inquire about a transfer before quitting your job and regardless of an employer's transfer, or lack of policy, about location transfers.

Did you inquire of the employer about the possibility of getting involved with a carpooling program when you emailed HR, or continued the communication with your manager? Did you per chance reach out to co-workers close to your home about getting a ride to and from work to compensate for the high cost of your commute .. which would of made your job .. basically a financial wash, to keep on working?

Did the adjudicator ever inquire as to why you didn't just buy your own car, when public transportation would of become financially unfeasible to continue in the employment?

Did the advice of your physician due to your knee, or the sleep deprivation issues of a long commute not providing any reasonable amount of time to sleep .. ever come up during your adjudication interview?

Having said all that .. if I were the biased one given the authority to decide if you get benefits, or not .. I'd allow them because the financial hardship of getting to and from work alone was something beyond your ability to control .. unless your employer offered some sort of reasonable alternative to help you continue in the employment.

Oct 12, 2016
"Necessitous and Compelling" (Pennsylvania)
by: L.T.

Hi Chris,

I have a question regarding my unemployment appeal (if I am posting this question in the wrong thread/forum, please forgive me and advise accordingly).

I started a job a little over a year ago. That job was located about 40 miles from my home. When I started that job, I shared a ride with a coworker/split the cost of gas with said coworker. A few weeks after starting the job, the coworker with which I shared the ride, was let go. I do not own a vehicle, and rather than resign, I began taking public transportation to and from work. My commute consisted of 2 trains, 1 bus and then a one mile walk from the bus stop - each way. This commute would be anywhere from 6 - 8 hours per day during the week, and up to 11 hours per day on the weekends.

In late March of this year, I fell and injured my knee and was out on short term disability from April - June. In late June, I was cleared to return to work (although my doctor advised against it because my commuting schedule did not facilitate lack of sleep). My return date was tentatively set for July 7th.

On July 5th, less than 48 hours before having to return to work, it was announced that Septa (which is the ONLY public transportation system that serves this section of P.A.) discovered severe structural defects in 120 of its trains, and would be removing them from the rails, effective immediately. They held a press conference and basically informed thousands of commuters that it was every man for himself. They were not guaranteeing service levels. They could not guarantee that they were able to get people to and from their destinations. Best case scenario: my commute would have gone from 6 - 8 hours per day, to 8 - 12 hours per day, AND there was a very high likelihood that I would have been stranded in the evenings.

This was my only means of getting to and from work. I looked into Uber rates, and those rates were anywhere between $100 - $140 daily. My weekly cost of commuting would have gone from $44 (which is what I paid for my train pass) to anywhere from $500 - $700! I then reached out to H.R., to communicate this communication issue (this was July 6th). I got no response from H.R.

The next day (July 7th), I got an email from my manager (H.R., forwarded my email to her, and she replied to it). My manager asked me to clarify if whether I was planning on not returning on the 7th, or if I planned on not returning at all. I replied to the email, detailing the transportation crisis, how Septa had no plan or solution in place and that I could not get to work. My manager thanked me for the clarify and wished me well.

For the remainder of the Summer, I attempted to find work closer to home, but was unsuccessful. In late August, I applied for unemployment, based on the same circumstances that I have documented here. I was denied. While the original adjudicator did agree that my voluntary quit was "necessitous and compelling", he/she felt as if I had not done enough to preserve the employer/employee relationship.

I appealed and submitted a news article that covered the transportation crises. I also submitted a screen shot that clearly detailed how much I could expect to pay for Uber. That rate was 80 - 100% of my income. I would have been working, JUST to cover carfare; no rent, no utilities, no basic cost of living expenses.

My appeal hearing was heard via phone. My former employer did not show. That does not guarantee a win in this state, but rather means that the referee would base the decision to uphold or reverse the service center's decision based on the facts, testimony and evidence presented. The hearing was relatively short - a total of 22 minutes. It was nearly 10 minutes of the referee swearing me in and affirming/entering into evidence the documentation that I provided. I had a few short minutes to provide my own testimony, and I felt like I was being rushed. I know that it is more than likely due to the fact that the referee must adhere to a strict schedule. I get it.

My question is: based on your knowledge/experience, do I have even the slightest chance at winning this appeal?

Oct 11, 2016
Well .. the lack of those documents isn't good for the employer .. but
by: Chris - Unemployment-Tips.com

When there is a lack of documentation in support of a quit with good cause, or a discharge for work misconduct, the end result can still depend on what falls out of people's mouths .. or more simply how well you represented yourself in the absence of any of the documentation that could prove drug use by you .. instead of just ordinary everyday common reasons chalked up as misconduct.

It's called he said/ she said and judging credibility of testimony is something a hearing officer is given wide discretion to determine .. which story sounds the more credible.

Now, let's move on to the type of things people say at hearings .. that could just as well open a line of questioning to explore for more facts, than let's say a rebuttal that only focuses on poking holes the burden .. in your case .. the employer's burden.

"my employer forgot to bring all drug test documents to our appeal , the chain of custody form and the test results from the lab"

That sounds like you know .. they had/have it.

The statement is full with the suggestion you know the employer followed their own S.O.P. which is likely connected to a specific state unemployment provisions affecting quits and discharges centered around drug use .. in a number of state.

But then again, I can't really answer you .. because I don't know what kind of testimony you gave, nor if you told the truth about being drug tested, or came across with credible explanation .. or denial of any wrongdoing .. or if the employer might of requested a continuance to get and submit those docs to fully complete and wrap this hearing up on another day.

Oct 11, 2016
by: Anonymous

my employer forgot to bring all drug test documents to our appeal , the chain of cutody form and the test results from the lab , so how good are my chances even tho they testified and so did i.

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