Questions about my upcoming UI Hearing this Oct 24th in NY (file, receive)

[jhon2524]

Heres my story: I started receiving UI Benefits the first week of September. I received benefits ($405/week the top rate) for 4 weeks. At that time I received a letter of determination that said I was fired for misconduct and because of that my benefits would stop.

The 'misconduct' was me not going to work because I was injured. I sprained my knee at work and could not walk well for 3 weeks. My former employer by the way is the second most dangerous workplace in my county, so injuries are commonplace there.

The day after I received the letter I sent in a request for a hearing and that was granted. On this past thursday I received the date and time of the hearing which is this coming wednesday in White Plains NY.

Originally I thought I would represent myself (not get an attorney) but I found this forum and started reading some threads. I found out I dont have to pay the attorney if I dont win.

my questions:

1) should I get an attorney? My financial situation is not that good at present. I do know there are free of cost attorneys out there.
2) is it too late to hire an attorney (monday will be 2 days from the hearing date)?
3) as of now I am owed 4 weeks of benefits (roughly $1400 after taxes). The amount Im fighting for is not a huge amount, so does getting an attorney make sense?
4) What documents should I bring to court? I dont have any doctors notes, I just rested at home for 3 weeks to get better. Also there was no witness to my knee sprain at work, so I have nobody to substantiate my testimony.

5)The thing I am most worried about is that if I lose, I read somewhere that I may have to repay benefits already received- at this point that around $1400 (4 weeks of benefits less taxes). Im not working now (cant find a job since August) and to be forced to repay $1400 would literally kill me.

Can I use a waiver 'for equity and good conscience' that I read about on another thread? Would that work for me in NY? Also If I lose I plan to appeal, so I would not have to pay anything back until after the appeal correct?

Any other help is appreciated.
I plan to go to the place of the hearing 3 hours early to review my file.
Im also hoping my employer doesnt show, though I am aware they can reopen the case again afterwards.

Thanks very much for any help or advice,
John

[jhon2524]

Also I wanted to ask this question which comes from the Determination: pls tell me what this passage means....

' NO EMPLOYMENT INSURANCE BENEFITS WILL BE PAID TO YOU UNTIL YOU HAVE SUSEQUENTLY WORKED FOR AN EMPLOYER AND EARNED AT LEAST 5 TIMES YOUR WEEKLY BENEFIT RATE.'

then on the back it says 'However if the claimant is still unemployed at the end of the period, such claimant will have the right to file a new claim.'

Do those 2 statements mean that if I go to work and earn 5 times my benefit rate (5 X 405= $2025) I can file for continued unemployment benefits?

I have read those passages over and over and still dont get the meaning.

Thanks again for helping.

[Chyvan]

I don't fully understand the timing and sequence of how things happened.

If you got hurt at work, you should have reported the injury to your employer immediately, and went on workers compensation. You'd have been able to see a doctor, got paid for your time off if necessary, and your job would have been protected.

Whenever you make a medical condition the cause of your unemployment, most everything I've read in case law requires that you have to have medical records from a doctor. Only a doctor is qualified to make those kinds of determinations.

In the absences of witness testimony and medical documentation, I seriously doubt paying an attorney can spin this into a winning case.

Only if the employer doesn't show at the hearing can you turn this into a winning case.

[raymond2]

Didn't anyone at work see you limping around on one leg that day?

[jhon2524]

well, the injury happened one hour from the end of the shift and there were no witnesses. I walked it off so to speak and was able to finish the shift. The next 2 days I was off and thought it would heal and I would be ready to come back, but after I stopped moving it swelled up and never got better. It took 3 weeks to heal 100%.

I did not report it because I didnt want an injury on my record ( up until then I had a perfect safety record going on 3 years)- and my employer has a history of coming down hard on employees who get hurt at work- so I decided to keep it quiet as other people where I work do as well. Ive even seen people fired for getting hurt. Thats how tough this employer is on their people.

anyway I think I have a good case and will be calling some law offices this morning. I dont expect to win the first time and plan to appeal. For the appeal I will definitely get an attorney.

Im not going to mention my employers name here but they are a notorious employer and that may work in my favor- the judge and the court has probably heard of them and I think that is favorable to me. This is an employer that a few years ago refused to pay overtime to its employees (while making record profits) and was taken to court and lost the case. This is an employee that 3 years ago had 50 illegals working for them (people not allowed to work in the US). I can go on and on about the countless violations this employer has made. The only reason I worked for them for almost 3 years is that they pay well and have decent benefits.

Anyway, I have a little law background and the way I plan to present my case I think gives me a good chance of winning. Like I said if it goes to the appeal stage I will definitely have an attorney.

Im hping my employer doenst show up, the court is about an hour and 20 minutes from the workplace facility and on the court document it says 'Late arrivals will not be admitted'. Hehe lets hope they get lost/ or cant find the building.

As for me Im leaving at 9AM and plan to be there by 1030AM (3 hours early) to review the case record and get myself psychologically prepared.

[jhon2524]

I wanted to add a few more thoughts....(hard to explain things on a message board)

The reason why I never went to a doctor is I knew how to heal the injury myself and I never thought things would come to the point where I needed 'evidence' or a 'witness'. The 3 weeks I was resting at home (with no salary) was before I even thought about claiming UI benefits. In the 4th week of my absence when I tried to go back to work and they refused to accept me back is when I decided to file for UI. I was granted the UI benefits by the rep on the phone. 4 weeks later I received a letter of Determination and thats when this business about courts began.

Its weird I never received anything (a call or letter) from my employer that I had been terminated. I have never been terminated from a job in my life but I believe the employer lets the employee know one way or another (mail or phone call). That never happened to me. The way I found out was I received a COBRA packet which is the option to continue benefits (for a fee of course) even though your employment has been terminated. Inside the packet it said INVOLUNTARY TERMINATION.

Lastly, from what I have read my employer needs to show 1) there was a set rule which I knew about 2) I had violated the rule in the past and was warned 3) I violated the rule again and was therefore let go.

#1 vaguely applies to me but #2 and #3 dont. While at this employer I had perfect attendance (never late, never absent) for almost 3 years, perfect safety record, and also no disciplinary actions such as write ups. In my view it will be very hard for the employer to prove 'misconduct' against me. If anyone is guilty of 'misconduct' it is the employer not me and that is the basis for my case.

[jhon2524]

also I had a specific question about NY State. Is NY considered pro-employee or pro-employer?

I know California is the most pro-employee state while some of the midwestern states are completely pro-employer. Is it safe to say NY is a 'middle of the road state'?

Im just trying to get an idea of what to expect 2 days from now.

Thanks

[Chyvan]

Your employer might try to use the "rules violation" theory against you, but don't count it. You not showing up to work will most likely be steared to the "constructive quit" section, and you're going to have to show good cause.

This first hearing is an appeal. This is also the most important appeal, and if you're serious about getting an attorney, you want one for this appeal, and any subsequent board of review appeals.

The employer's reputation for hiring illegals and not paying overtime will not sway an ALJ in a UI hearing. They confine themselves to what are the facts surrounding your separation.

Things that might help:

Did you follow the employer's call-off policy while you were out?

Did the employer tell you at any time during your illness that your job was in jeopardy?

Have other people been out sick for three weeks without being fired?

Were there any conversations between you and your boss where you thought you had permission and were on what could be perceived as a leave of absence?

Try to establish the exact day the employer terminated you. I suspect you were fired before the end of your three week recovery period, and you just didn't know it.

[jhon2524]

Originally Posted by Chyvan

Things that might help:

Did the employer tell you at any time during your illness that your job was in jeopardy?

Have other people been out sick for three weeks without being fired?


Try to establish the exact day the employer terminated you. I suspect you were fired before the end of your three week recovery period, and you just didn't know it.

I was never told my job was in jeopardy.

Other people have not come to work for weeks at a time and have still kept their jobs. This was a dangerous job where people got hurt on a regular basis. I have evidence that the attendance policy at the workplace was never enforced or enforced on a case to case basis- meaning if they didnt like you they enforced it, if they liked you nothing was enforced.

I was terminated without me knowing it before my knee healed which like I said above took 3 weeks. I found out through a third party I was INVOLUNTARITY TERMINATED. Isnt the proper procedure to notify the employee in writing or at least via phone that he/she has been terminated? Again I dont know, I have never been terminated from a job before in my entire life.

------------

Well, I consulted with a few people yesterday and a few said I have a good case. I was not able to get an attorney because its such short notice so I will ask for an adjournment tomorrow.

The basis for my case is that getting hurt on the job and not being able to go to work is NOT 'misconduct' as my employer claims. 'Misconduct' is stealing, insubordination, chronic absenteeism, not following company rules repeatedly, etc........

There is no way (and one lawyer agreed with me on this yesterday) that getting hurt on the job and not being able to report to work can be interpreted as 'misconduct'.

[Current]

Please, let this be a lesson to everyone, ALWAYS report your injuries. Even if you got let go for getting hurt, you would still be in a better situation. You would be getting unemployment already without having to go thru hearings and you would have one hell of a case with the labor board.