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Please tell us more. You're like the very first person that has ever used "equity and good conscience." We told other claimants about it, but no one has ever reported back to say that they won.
Can you go through what you knew about "equity and good conscience" before the hearing, the facts you presented, and what the judge actually wrote in the decision.
I was fired back in April for "gross dereliction of duty." I was a security guard at a big hospital and they basically made me a scapegoat for an incident which happened Easter Eve. I was headed into the mental ward making rounds, when a patient tried to elope. As I entered, he pushed past me. I asked him if he was a patient and looked for a band and he said he wasn't and I saw no band. Before I could do further, another employee exited the mantrap and the patient was able to follow her out. I left the scene, thinking the employee knew the patient was good to go. Turns out, the patient was not allowed to leave and a "Code Green" was called. Staff tried to get the patient to return to the unit, but he ran outside the hospital then left the property. The police were called and subsequently captured him and returned him to the hospital. I was fired days later.
When I filed for unemployment, it took nearly a month for the claim to be decided on. The UI people agreed with my employer that it was "misconduct". I filed an appeal and had my hearing. The employer no showed that hearing and I won.
The next day, my employer claimed they didn't have enough time to adequately prepare for the hearing and they wanted it rescheduled. The ALJ had already made his decision and ruled in favor of me.
Yet the UI people gave a new case number and the hearing is reopened for next week. I am severely upset at this and can't understand why the employer gets another chance when they No showed my initial hearing. If they win, would I have to repay all the benefits?
If you lost, you'd be asked to pay back the money, but that doesn't mean you actually have to. Nearly 50% of all overpayments go uncollected.
If you're destitute, be sure to ask for a "waiver for equity and good conscience," at your new hearing.
Also, I want more details on the reopening of the hearing. Only the appeals board has the authority to reopen a hearing. If you read the paperwork carefully, it just may be that the employer only has the the chance at the hearing to show "good cause" for a reopening. If that's the case, then you can object. The employer had every right to ask for a continuance any time prior to the hearing or at the beginning of the hearing. Doing a "we didn't have enough time," after the fact is not good cause.
The employer filed paperwork the day after missing my initial appeal hearing saying they were not prepared and didn't have enough time. That is a crock because when I filed my intent to appeal, they were given notice and we were both given notice on a thursday when the hearing was on a Monday.
The day after my hearing, they sent notice to the NYS Dept of Labor asking for the hearing to be rescheduled. What the Dept of Labor did was give my case a new case number and they basically treated it like the first hearing never happened. They did NOT ask to reopen the current case. I spoke to the Dept of Labor people and they said it falls under asking the case reopened despite what they initially asked for.
It is before the same ALJ, and he ruled in my favor and he was miffed at them for no showing the day of the hearing, so maybe he will note my objection.
I am just upset that he wanted to reopen it instead of telling them they had to appeal to an appeal board.
I also stopped claiming benefits during the time the judge ruled in my favor because I got another full time job. I was awarded two months of back pay and I told my employer that I had returned to work and they should no longer worry about me claiming unemployment. They showed no class by stating they intended to contest me getting retro-pay.
Had my second hearing, which was basically a reopening of my appeal hearing. The employer decided not to contest. Therefore, I don't have to pay back any benefits I already won. It is a nice victory and hopefully it will help me in my arbitration case to get my job back. If the employer decided not to contest because they knew I wasn't guilty of misconduct, then the arbitrator can see I did not deserve to be terminated.
This site is awesome. I sweated like a DOG for my employer . They changed the rules and made the conditions very difficult. I ended up cutting corners to try to keep up and so they fired me without warning calling it 'misconduct' .
Is it legal for an employer to have a coaching, verbal, written warnings as common practice but then find a loophole to fire someone without any warnings and not pay benefits?
Dont they have to prove I knew what I was doing was misconduct in the first place?
The employer doesn't have to follow a progressive discipline process, but as reported once or twice, the ALJ's in those cases had in the decisions that "failure to follow a progressive discipline process shows that the rule was not uniformly enforced." I believe that it greatly helped the claimant in getting a favorable UI decision.
If the misconduct stems from a rule violation, then the employer does have a burden to prove that you knew such a rule existed. However, many claimants freely admit during their initial UI interviews that they "knew about the rule."
That last question is a tough one. Hopefully, if they do instruct you to violate a rule that it is by memo or email so that you can save it as proof to show that the employer had you doing things contrary to other rules.
When something is against equity and good conscience it is basically something that is considered legally unfair.
More specifically, and this is usually in repaying something, the repayment of an amount that was erroneously awarded will not be taken back if the person then gave up something in reliance on it. For example, if you are working and are injured. You are granted permanent disability based on this injury. As such, you resign from the job that was being held for you while you are on worker's comp. It is then found that your injury did not qualify for permanent disability. However, as you have already given up a job in reliance on the SSI, they will likely find that making you pay back the erroneously granted SSI payments would be against equity and conscience as you gave up your job in reliance on the benefits.
It also applies when there has been a financial reliance on the benefits and making the person pay them back would leave them in a worse position.
From a UI standpoint, the person claimed benefits. They were granted. Years later, the UI department finds the benefits were in error, so decided to take them back. But the person would be left in worse financial straits having to pay them back (not working, etc) so the decision is made not to require them to be paid back.
The simple non legal...you didn;t make the mistake so it is not fair to put you in a worse position when the mistake is discovered.
I'd like to add though that in UI overpayments your financial situation has a lot to do with how "equity and good conscience" is applied. I suspect that if Bill Gates was mistakenly awarded benefits against MicroSoft, that he would never get a waiver. There is only one published case in AZ on this subject, and it didn't grant a waiver only a remand so I don't know how it ultimately panned out. The highlights were that the overpayment was assessed over a year later, and at that time the claimant was back to work, and all was right with in his life. The ALJ didn't grant the a waiver and the case eventually reached the appellate court. The court's opinion was that the ALJ needed to use the financial condition of the claimant at the time of the overpayment, not his current situation. At the time of the overpayment, the claimant's situation was rather dire, and the court felt that by using those facts a waiver might very well be appropriate, so the case was remanded to make new findings of fact.
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Win, Lose in NY
