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Employer appealed my UI benefits and lied their way to victory!?!?

Discussion in 'Unemployment Insurance & Benefits' started by Justin R, Jun 18, 2020.

  1. Justin R

    Justin R Law Topic Starter New Member

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    Jurisdiction:
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    Ok so I was discharged from my job in March and had no problem getting UI benefits from the workforce service. Then about 2 months later, my employer appealed my benefits and the decision was reversed.

    I wouldn’t be messed up about it too badly if the decision to reverse my benefits was based on truth... but it totally wasn’t.

    they testified that I had been insubordinate and negligent for many months leading to their decision to discharge me, although none of these incidences were ever documented(because they never happened.)

    long story short, it seemed as the hearing officer took everything my employer said as fact and ignored what I said. The “findings of facts” actually had me laughing in disbelief. It was total BS. One lie after another. I’m not surprised my employer said what they said, but I was surprised to learn the hearing officer believed them. I guess it was my word as one person against their word as 3 people?

    im able to appeal it, and I am going to. I’m just wondering how it will go and if anyone else has experienced something like this. Should I need a lawyer? I feel like all I need to say is “there is no evidence for any of this, how can you make this decision based off my employers” word vs mine?” It’s certainly true that if I were insubordinate and willfully negligent, they WOULD have documented it....

    Any help or advice?
     
  2. welkin

    welkin Member

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    What was the reason given by your employer for being laid off in March at the time? Was it COVID-19 related or was it performance related?

    Did you file for UI under the CARES Act and PUA or regular state benefits? Have you been receiving the PUA additional $600 weekly?
     
  3. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Since you mentioned the employer appealed and yet you mention further appeal I need to now where you are in the process.

    Have you had a hearing with the Appeal Tribunal as in a scheduled hearing where you and your former employer were questioned and then you were both given the opportunity to ask questions? If not you haven't then there wasn't an appeal by your employer yet and your disqualification was simply based on their response to forms sent about your termination and you need to appeal.

    As far as needing a lawyer I hate to say you don't but in my 20 years experience of handling UI appeals for employers in Arkansas, I've not seen a hearing where a lawyer actually helped the employee. And you seem more than capable of stringing a sentence together.

    Appeal your case within the time allowed. When you get a letter with the hearing immediately fax a request the file to the Tribunal. You will need to give them the docket number and your address. The request must be signed by you. Their fax number is (501) 682-7734. This will allow you to see all the documents that the hearing officer will see. If the employer provides something after the notice of appeal they are supposed to send it to both you and the tribunal. If during the hearing they try to bring up a document that isn't in the file OR that you didn't receive later from the employer or the Tribunal request that it be barred on the grounds that yo didn't receive a copy.

    During the hearing DO NOT talk over the employer or the hearing officer. Answer questions when asked but don't go on and on. You will get another chance to have your say pretty much until you are done or start repeating yourself.
     
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  4. Justin R

    Justin R Law Topic Starter New Member

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    yes we had the tribunal appeal hearing last week. Just yesterday I got the decision in the mail with info on how to appeal again. Thanks for your reply
     
  5. Justin R

    Justin R Law Topic Starter New Member

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    it was not covid 19 related. I got written up for insubordination and I didn’t think it was fair so I went to my bosses boss to do discuss the issue. I explained myself and also noted that I would have to look for another job if I didn’t get a raise or if I kept getting treated unfairly. They just decided to discharge me at that point.

    yes I have been receiving the extra 600 from the cares act. Thanks for your reply
     
  6. cbg

    cbg Super Moderator

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    That's a valid reason to term you. It may or may not be a valid reason for the state to approve or deny UI, but it's a valid reason for termination.
     
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  7. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Ok then, the next appeal is to the board of review. What they do is take the transcript and any evidence that was decided by the Tribunal and review it. They are limited by law on what new evidence they can accept. What sort of new evidence do you have to provide?

    The instructions describe how to make this appeal but is basically a letter describing how you think the Tribunal erred in their interpretation of the hearing.

    The only two times I've had a Board of Review overrule the Tribunal was in cases where the hearing officer simply heard testimony and one where they simply misread the law.

    But it cost nothing to file the BoR appeal so take a shot. A lawyer is really useless in a BoR review because in 99.9% of the cases new testimony and evidence will not be accepted.
     
  8. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Upon a second reading of the above, I have to say that you should have been disqualified. You basically said you were going to quit when if you didn't get a raise that the bosses had no intention of giving you. And intention that you a reasonable person would know because you had just been written up for insubordination.

    What was the actual wording of the "finding of facts" from the appeal hearing?
     
  9. Justin R

    Justin R Law Topic Starter New Member

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    Not sure if I have any brand new evidence. In the “findings of facts” it states that I failed to complete 30, 60, and 90 day reviews of my employees, but that is not correct. But i don’t have those documents in my position. I could present that my employer does have them presumably?

    I don’t think new evidence is necessary. I just need to stress that there was zero evidence outside of their testimony that I was performing so badly as they describe. Again, if I was doing so poorly, they could’ve documented it themselves to correct my behavior but never did so.
     
  10. Justin R

    Justin R Law Topic Starter New Member

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    not sure if you’re right or not about that. Even the hearing officer explained to them that while they can discharge me for any reason they wish, it doesn’t disqualify me from benefits unless it’s a certain degree of misconduct. I did reveal my intentions to look for another job(not quit.) again, this is not misconduct or willful negligence. One can perform highly even while seeking new employment.

    Findings of facts:” claimant worked for the employer as a first shift supervisor for approximately six months. He was aware he was suppose to do 30, 60, and 90 day performance reviews of new employees he supervised, but he failed to do so though he was verbally warned. His supervisor instructed him to issue disciplinary actions to his supervisors for attendance and cell phone policy violations, but he refused to do so because he believed other employees were violating the policies and not being disciplined. He told his supervisor he would write them up when it became a problem for him. When he was told to comply with the employer’s written policies, he complained that he was not being given “freedom to try his own strategies.” He complained he was being treated unfairly when he was required to perform job duties that were listed on the job description. He was warned for insubordination, and he responded the next day with an email message(about beginning a job search if I don’t get a raise or stop getting treated unfairly.)

    that is the virtual exact text of my findings of facts. There was only one document to support any of this, which is the one that had me being written up for insubordination 2 days before my termination. The rest of it is just the employers testimony(which is completely warped.) i never refused to do what my boss asked me. I DID complete almost every review, although I missed one or two. They explained to me the importance of them after I missed one, in which I responded by never missing another one. I never refused to discipline my employees about cell phone issues, although I did FEEL differently about the policies than my superiors(which I explained in the hearing, along with the fact that even though I felt differently, I was totally behind whatever notion that we as a company decided on collectively.) I never said I’d write up people when it became a problem for me. I never disregarded written policies in exchange for my own whims or desires. I did explain that I had no freedom to try my own strategies, but it was not in response to any sort of notion that I wasn’t complying with company policy the way that the findings of facts suggests. Almost everyone observing the workplace agreed that I was being treated unfairly, and agreed that it was time to complain.

    again, the findings of facts make me seem rather negligent and insubordinate, but they are solely based on a lack of evidence. Out of everything in the findings of facts, the only thing that is accurate is that I failed to discipline one gentlemen about his tardiness. I admitted to that much in the hearing. But that was my first documented behavioral issue in my entire length of employment.
     
  11. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    You can put that in the letter but I assume you told the hearing officer that as well and he decided he believed them more than you and I've never seen the board overrule the Tribunal when it comes to who can be believed.

    You may have one out when it comes to the board. Ask them to vacate the Tribunal ruling and request another Tribunal hearing. You can say that you were so surprised by that allegation that you had no way to prepare. If they grant a new hearing, as soon as you are notified with a new docket number subpoena the specific employee records that would prove that you did do the evaluations. Also, request that a few of the employees that you did the evaluations own be present to testify.
     
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  12. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    But you had no documents at all.

    As for the whole "quit" thing. Arkansas is very employer-friendly on this point. I've seen several employees classed as "voluntary quit" when they threatened to quit and be disqualified for UI. Your theory that one can be highly protective doesn't mean anything.
     
  13. army judge

    army judge Super Moderator

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    To the OP:

    I'm sure you're seeking new employment.

    If I were you, I'd focus on finding my next great opportunity and real money, over unemployment scratch.

    Your next opportunity is out there somewhere, you just have to find it.

    I wish you all the best as you pursue that job that's looking for you.

    Hang in there, mate, you've got the skills an unknown employer is seeking.
     
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  14. Justin R

    Justin R Law Topic Starter New Member

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    Thanks everyone for your replies and good wishes. I think I understand what you mean, HR payroll guy.

    Funny thing is I had heard that UI tends to favor the employee absent of overwhelming evidence. Sure they had 1 document to my 0, but I’m not expected to have any documents. 1 document in 6 months of employment doesn’t really tell a solid story of misconduct...

    but it is what it is, like the person said I should focus on my next employment opportunity, and I will.

    I guess it will hurt pretty badly if I am expected to pay all the money back that I have been awarded.... maybe shouldn’t have gambled it all away.... lol just kidding...

    I did pay my car off though which felt nice. At any rate, even if I lose and have to pay back money, I will see it as an interest free loan that I used intelligently.
     
  15. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Arkansas UI and the law that it follows do tend to favor the employee. But not as much as some other states.

    In a hearing it comes down first to the provided physical evidence then which testimony, which is also evidence, the hearing officer believes more.

    AR DWS isn't known for pushing too hard for repayment under the logic that they can get it back when an employee is later qualified for UI. The exception to this is fraud and yours isn't such a case.
     
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  16. Justin R

    Justin R Law Topic Starter New Member

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    Thanks for your help again brother. I sure hope you’re right about that, I can put this whole thing behind me a lot easier if so.

    fraud? Hardly, lol. I will post an update whenever something changes.
     
  17. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Good luck. The Board of Review appeal takes nothing more than a letter asking for it. I would do at least that.
     
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  18. Justin R

    Justin R Law Topic Starter New Member

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    Yup. I have about 15 more days out of the allowed 20 days to make my move. I’ll definitely at least try but I’m gonna give it another week or so of consideration. I’m not sure how to present new evidence. I’m not sure if any of my old employees would be willing to testify against their own employer.

    gonna just try to get it off my mind and enjoy the weekend and next week I’ll gather my thoughts and figure it out!
     
  19. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    You can't present new evidence in the board of review appeal request or to the board of review. They are barred by law from taking it. If they think there should be new evidence taken they will vacate the Tribunal decision and there will be a new Tribunal hearing scheduled.

    I believe I told you earlier how to handle both.
     
  20. Justin R

    Justin R Law Topic Starter New Member

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    you did, I’m not sure how to “subpoena” for the documents that may help, but I could certainly read about it and learn.

    In my letter to the board, I just want to stress a few things. Like my understanding was that the burden of proof was on my employer. Since they discharged me, they have to prove that it was misconduct. I want to stress that there was no proof, just the testimony of three people versus me. Is it worth mentioning this in my letter? Just a paragraph or two stressing what I think is wrong about the decision.

    is it worth mentioning that it is unrealistic to call upon any witnesses since they’d be uninterested in risking their jobs by testifying against their own employer?

    is it worth mentioning that the there are certainly documents that do exist that would render the “findings of facts” non factual? If it’s true that said documents exists, maybe it weakens the findings of facts as a whole?
     

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