Employer didn't show up, and then appealed again (receive, claim, payment)
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I was a server at a well known chain restaurant. I had been working there for about 3 months, when my grandmother had a sudden and unexpected fall that proved to be very serious. The doctor said that she only had about 4-5 days left to live. As one would expect I was extremely distraught. I called my employer and told them and asked them if there was anyway possible I could stay home that day. They told me they understood and that it was a slow day anyway. I go back to work like normal, and then my grandmother dies. I am again very distraught and my manager told me that it was again not very busy and I could go home. This all took place in about 3 days. I have a scheduled day off and then when it is my day to return to work I notice that I am not listed to be on the floor that day. I ask the manager and am unexpectedly told to follow him into his office. He tells me that a customer claimed that I forged a tip and that this sort of thing has never happened to the restaurant before and that he has to let me go. He shows me no proof of receipt, he never asks me about it, just tells me to give him my stuff and that I am not allowed to return to the premise. This was a very traumatic experience for me as I have never been fired, I have absolutely not criminal record, and well my grandmother has just died a few days prior. I was told very threateningly that I needed to sign some papers. I signed them under duress and left.
I know for a fact that I would never and have never forge a tip. I am a young college student living on my own and was in a state of panic, so I filed for unemployment. I got approved, and on the very last day my employer appealed. I was sent the credit card receipt that I was accused of forging and even more bizarre there was not just one but two! They were both for the same table at the same time. They were the merchant copy, but there was never any customer receipt included in evidence. I was also sent the paper I signed. Another bizarre thing is that the date I signed that on, was changed. It had been changed to a different day that I could not have been at the restaurant, because I wasn't even allowed on premises. I wait for the day of the trial to come, and the day before I get a phone call from the judge saying that the restaurant never called into the court so I won by default. I am overjoyed. Then a few weeks later, on the last day once again, I get a letter that says that the employer is given another chance for ANOTHER trial. I am devastated. I need help. I have paid for the last few months and I don't think there is any way I could pay back that money. I am looking for a job, but I am just not getting hired. What are the chances of my employer winning this trial? I know I didn't forge anything, but how can I convince the judge to believe me? Is it going to be my old managers who get on the phone, or their lawyers? Is the letter I signed saying I resign going to be the death of me? I really feel like they didn't believe me about my grandmother dying, is this an okay reason to fire me? Any help at all would be extremely appreciated! Thank you so much!
UI is about why you got fired. Your grandmother's death had nothing to do with it. Don't mention it again.
Yes, the piece of paper you signed resigning can be a problem. Next time, don't sign anything like that again. You weren't under duress. You were free to walk out after they said you were fired regarding the forged tip.
However, because the employer is submitting the receipt, you stand a really good chance not being held to the resignation that you signed. You don't have to make the judge believe anything. The employer has the burden to make the accusation, prove it, and it has to rise to the level of misconduct. This would be misconduct, so we don't need to address that. Look to what the receipt proves. It proves that a payment was made. However, it doesn't necessarily prove that you changed anything on it. At the hearing, the employer would need the customer copy or the chargeback notice he received from the merchant processor. When it's not in evidence, you will be able to testify that you didn't forge a tip, and the employer didn't prove the receipt was modified because there was nothing to compare it to or anything to suggest the employer took a loss.
My employer didn't show up for the first hearing, so I won that hearing. One day before the deadline to appeal, they appealed and I got the papers in the mail. They called the unemployment office claiming that they didn't know they had to check in, so the judge granted them another telephone hearing. My question is does the employer have to re submit the evidence or can they use the evidence from the first hearing? The judge from the first hearing is different from the judge conducting the second hearing.
Look to the hearing notice. If it says it's "de novo," then they have to do everything as though the first hearing didn't happen. If it says that it is being "reopened," that means that the hearing will allow all prior evidence to stay as is and allow the submission of any new evidence. Also, speak up. You should object to the new hearing. There is NO way a business doesn't know they have to check in. That to me is unbelieveable. I doubt very much this is their first ever UI hearing. If you are successful, you can get the hearing shut down and prevent anything happening to you.
Look at the issues to be addressed at the hearing. Type them in for me. I hoping that one of them is "good cause" for a reopening because that is where you want to push to get them blocked and deprive them of a second chance.
The employer may be asked to provide a reason for their non appearance at the previous hearing, don't hang your hat on having the Judge dismissing the case based on that explanation. Your previous employer can site many crazy reasons non appearance and most will be excused by the Judge, so testimony will have to be takenon the merits. What did you sign regarding a resignation and why? You didn't forge the credit card slip, correct? The Judge will have to determine why you would agree to resign if you did nothing wrong. You need to tell us a little more about this.
Since you said a new Judge will hear your case it will be De Novo, Brand New hearing.
Procedurally, the Judge will allow the employer to enter any legal objections to previous testimony and evidence. The employer will then be given the opportunity to present their case and cross examine you. What state are you in?
Issues to be heard:
51-1-7A(1) and 51-1-7A(2) Whether the claimant left his/her employment with the above-named employer without good cause connected with the employment, pursuant to Section 51-1-7a(1) or, was discharged fro misconduct connected with the work pursuant to Section 51-1-7A(2).
Section 51-1-11B and 11.3.400.419 NMAC
Whether any benefits paid to claimant shall be charged to the employer's account pursuant to Section 51-1-11B and 51-1-11D provided the employer is subject to the taxing provisions of 11.3.400.419 NMAC.
My hearing will be held on November 19th, 2014 and I've read that they have to provide any evidence to the opposing party they plan to use 48 hours before the hearing, and they didn't send anything. Will they be able to use any evidence?
Issues to be heard:
51-1-7A(1) and 51-1-7A(2) Whether the claimant left his/her employment with the above-named employer without good cause connected with the employment, pursuant to Section 51-1-7a(1) or, was discharged fro misconduct connected with the work pursuant to Section 51-1-7A(2).
Section 51-1-11B and 11.3.400.419 NMAC
Whether any benefits paid to claimant shall be charged to the employer's account pursuant to Section 51-1-11B and 51-1-11D provided the employer is subject to the taxing provisions of 11.3.400.419 NMAC.
My hearing will be held on November 19th, 2014 and I've read that they have to provide any evidence to the opposing party they plan to use 48 hours before the hearing, and they didn't send anything. Will they be able to use any evidence?
Even though it's not an issue, be sure to make an objection at the beginning of the hearing for why a new hearing was scheduled. Had you been the one to miss your hearing as a claimant, I can tell you that you'd have been poopooed.
Yes, they can use evidence if you let them. It'll go something like this: Towards the beginning of the hearing, the judge will go through the evidence admission phase. If the judge has the receipt, she will ask if there are any objections to admitting it. You have to speak up. You object to it's admission (if it's even there) because you don't have it. At this point, even if you do get it in tomorrow's mail, you didn't get it in time so object just the same.
The judge can chose to continue with the hearing without it, try to persuade you to go through with the hearing with it, or postpone the hearing to give you the required time. If you the employer is willing to continue without it, do that. Do NOT continue with the receipt as evidence. Let the hearing be postponed. Because you already won the first hearing, the longer it gets postponed the longer you can keep drawing benefits and spending the money even if you lose later.
If the hearing goes on without the receipt, the second the employer says anything about the receipt, or altering the tip, you object. "Hearsay. Best evidence is the receipt and not a description of it's contents." At that point, the employer's case should fall apart unless he has a witness to testify that they saw you change the tip.
If the hearing is postponed, come back, and we can work on the next step.
Non appearance is not an issue and there is no need to even address it, all it will do is **** the judge off and will start the hearing with the judge ruling against you. Ay evidence the employer intends on using must be submitted prior to the hearing and Chyvan is correct if you don't have it don't go forward withe case. The Judge cannot make you proceed without it. If the receipt is already part of the record, the Judge may overrule your Hearsay objection and accept the receipt as a Business Document kept in the normal course of business daily.
Inorder for our employer to prevail they will have to prove that you were the one who forged the receipt and in doing so will have to testify to what the customer told them, all the statements told to the employer from the customer are Hearsay.
Non appearance is not an issue and there is no need to even address it, all it will do is **** the judge off and will start the hearing with the judge ruling against you.
I don't know where you get the idea that making the judge mad is such a bad thing, or that he or she is even going to get mad. It's a new judge. This person might have issues with an employer that has probably gone through this before using the "I didn't know" excuse succeeded in getting a new hearing.
For all we know, this judge is hoping the claimant will raise the issue. Too many times claimants have had legitimate objections, and because they didn't raise the issue at the time they had the chance, they lose the right to appeal the issue at the board of review. If it's valid, speak up. The judges have said, "don't interrupt until it's your turn," however objections are an exception. The whole thing of raising an issue is so that what follows can't be heard or you preserve your right for further appeal. It's really hard to unhear something. If the employer's basis for a new hearing is questionable, make an effort to have it examined. You don't have be argumentative. Raise the issue, let the judge rule.
My judge got mad, actually both of them, but more so the first. She was going down a path that would have resulted in a denial. Because I objected, and she even said, "I'm the ALJ, I'll decide what is revelant," she was overturned on appeal becauses I had protected my right.
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