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Won appeal in Tennessee, employer appealing to board of review.

by Brent
(Tennessee)

I was fired from my job in Tennessee back in June for what my employer had cited as unsatisfactory job performance and excessive tardiness. Not once during my 4 months with the company was I reprimanded for any reason. The issue was clearly an experience problem. It was a maintenance supervisor position for an apartment complex. I felt like I was ready to take it on and they decided to give me a chance in which they apparently thought they made a mistake. I was completely honest and they knew I had less than 2 years in the field but hired me anyways. I had only been late twice and those were issues beyond my control involving my kids being sick and outside a couple of notes attached to work orders asking me to complete the tasks in a more timely manner, I was never counseled over my performance.


Anyways I was turned down initially for benefits because of the lies my former employer told the state. I appealed and won rather easily. I was prepared, they were not. Their rep was my former district manager that tried telling the hearing officer that I was late all the time and I had been written up for performance issues but that I had refused to sign the write up (totally fabricated). Having no documentation to support their claim the officer sided
with me and the decision was reversed. Last week I got a letter in the mail from The Tennessee Dept. Of labor Board of Review Commissioners designee and it said the employer had appealed the decision of the appeal tribunal and that the commissioner's designee had decided to hold a hearing to allow the employer and myself if I choose, to submit additional evidence and testimony. The hearing is this Tuesday and Friday I received via Email my former employers "evidence" which is clearly altered time sheets to make it appear that I was late almost everyday I worked there and a completely false and bogus write up I allegedly refused to sign.

How should I handle this hearing? For one it's a violation of their policy to refuse to sign write ups. That would have most certainly caused an immediate termination. It could probably be proven by a copy of their own employee handbook but there is now not enough time given to collect that by supoena.

I don't know how they secured this hearing but I never would have had I lost the initial appeal. They are truly playing dirty and any help would be greatly appreciated. I'm trying hard to secure employment but this stress isn't helping. Plus I know the State nor employer care, but I'm a father of 4 children just trying to raise them. Thanks!

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Sep 07, 2014
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One more point. Rules of evidence for administrative law hearings
by: Chris

You should try to find these if you can find the rules for Tennessee administrative law, specifically.

I don't know about TN, but some states have rules that frown upon accepting ANY document that appears to be altered. Sometimes even an employer's, post termination notes on a write-up were enough to make the document rejectable by the state of Wisconsin .. so rules of procedure for administrative law hearings are important to know when representing oneself.

Problem is, they are often difficult to find.

But, if TN does allow those altered timesheets, it couldn't hurt to make an objection on the record, to submitting any alter document into the record. Which is all that goes on during a first level hearing .. even additional hearings, which is also, not uncommon.

Sep 07, 2014
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Well, that's a little different and now I'm embarrassed.
by: Chris

I guess I should of checked some things out that were sounding a little odd to me because the board appeal process does in fact, seem to of been altered, as in eradicated, in TN.

I found the following for the year 2011, report 4 under Reports on Legislation

TENNESSEE HB 622 ENACTED and EFFECTIVE April 14, 2011
(CH 82) or as noted
Appeals
Terminates the Board of Review, the second administrative appeal body, and deletes the words
“Board of Review” where necessary from the law, effective July 1, 2011.


But, in the appeal chartbooks (found above significant provisions and reports) the appeal chart for 2011 mentions the designee of the commission .. after that year it just says "no second stage appeals" and there isn't even a footnote to explain there still is a commission and a designee.

I need to search further because it's possible there was another change made by legislation that brought back the commissioner designee.

But, this is just something else on my list of unemployment changes and things I need to dig into.

Make sure you get, or at least protect your rights to get and submit, the documents you need to counter.

And I wish you luck finding and qualifying for the free and sliding income scale legal assistance in Tennessee. I'm sure it's just a simple google search to find where to get this sort of help.

By the way, if this employer were to lose and then take it to court, they truly would be as naive as most unemployed people, or as mean spirited as some employers can be. Court appeals would require an attorney, unless you do it yourself and an attorney at that point could definitely cost more than the entire liability of your claim based on four months of employment.

But that's a tax question .. and I REFUSE to learn more about unemployment taxes!

You could also email me, Monday morning. Sometimes I talk to people about their cases .. just for the heck of it ;0

And I might of gone to the TN website to read up by then.

Sep 07, 2014
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More details for Chris
by: Brent

Chris, thank you for your response. I am going to call The Board tomorrow AM and request a continuance on the grounds of my former employer sent documents which are bogus and with an employee handbook supeona ed, I'm confident I can prove my claim. Also, that I need legal consultation and possible representation.

The time sheets with this company are handwritten and it's clear that it is different handwriting that crossed my entries out and then altered to appear I was late. These people reeeally don't want to pay the increase of their insurance and will stop at no cost. I fully expect them to file suit in an appeal ate court should they not get what they want.

Back to the hearing. It is a fairly small property management company so my opponent seemed to have little more experience in dealing with hearings than I. She was disorganized, stuttered, contradicted herself and offered no documents or evidence other than hearsay. Plus she was very unprofessional towards me and at one point even the hearing officer. I on the other hand was prepared, articulate, direct, and very respectful to her and the hearing officer.

At the end of the hearing and when it was clear that it probably wasn't going her way, she made the excuse that they had been dealing with other company issues and hadn't been in the office to prepare for the hearing. SHE DID NOT REQUEST A POSTPONEMENT/CONTINUANCE AT ANY TIME. So the officer did not offer or grant her one.

The letter that I got from the board of review stated that it would be a supplementary hearing meant to give both parties the opportunity to submit additional evidence and or testimony if they choose to. It makes no mention of remanding it back to the tribunal or vacating any decision so I suppose that's not an issue. In fact it reads that the commissioner's designee will preside over the hearing. Money is a major issue being unemployed in a family of 6 so what I'm now wondering is, do you know of or if there are any legal assistance for financially strapped people in Tennessee? I don't expect someone to represent me for free but don't have much and what I do have would need to be made in installments. Thanks again and in advance!

Brent






Sep 07, 2014
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Brent, not having time enough before the hearing is no good excuse for not making requests meant to "PROTECT YOUR RIGHTS TO DUE PROCESS"
by: Chris

If it were me, I still request the subpoena for the rule about not signing being insubordinate and subject to immediate termination.

And, I would also request a continuance of the hearing if that is necessary to get that page (document) of their employee handbook.

Additionally, I would ask for the written argument the employer submitted to get this "additional hearing". I mean, how does one expect to fight back intelligently without full knowledge of what's happening with their own case and what the employer has said and done prior to any hearing?

Now, my question is, how do you know the documents (timesheets are altered, aside from the fact you know they are?

And why wouldn't you think a subpoena is a crucial necessity to get the original unaltered documents, if they happen to exist in a personnel file in some corporate office location.

Did the board set aside the hearing officer's decision?

I ask because this doesn't sound like a vacated decision and a remand for a de novo (as if the first never happened) hearing in front of a new hearing officer, but another hearing in front of the same officer who already knows the case fact thus far.

Did the hearing officer deny the employer a continuance request made just prior to, or during the hearing to have additional time to get these documents in? Is it possible TN has a time deadline for submitting docs for a hearing and they didn't arrive in time for the first hearing?

See, It's just not that easy to tell someone how to handle a situation without being privvy to details that might help a third party get a handle of anything that might be advantageous to handle the situation.

Sure you shouldn't be coached to represent yourself .. by an attorney licensed in the state of TN?

It would be lovely, if you could get your hands on unaltered documents, or cross examine the employer hard about what's altered to make you appear guilty.

Not to mention any write-ups without your signature, to question them on the policy you need to submit to help sway the argument your way.

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