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Here's some more of 3littlebirdies posts. Be really careful with whom you take seriously. The "work and employment" posters sometimes pop in and give their two cents, but they haven't lived the system and wouldn't know.
A tip: since you are collecting benefits now, do everything in your power to DELAY. When you get the hearing paperwork, ask for a postponement. You are allowed to collect until an adverse decision is issued against you, and there are so many ways to keep from paying things back if you lose, so for the most part, you want as much money in your pocket as you can get in case your employer and their attorney are pretty sharp.
You want to delay your hearing, you want to ask for a continuance at your hearing, every chance you get to buy time, do it, so you can keep filing your claims and getting paid.
Thanks for the tip. When I got the notice of appeal, I was hoping that I could get all done with and behind me as soon as possible and I was very much concerned about the potential payback as the longer it goes on the more I will have received (and spent) and just wouldn't have the money to pay back. Now through Google search of overpayment in Massachusetts, I see that there are ways around having to pay back.
Now, to your point of delaying the hearing, what do you suggest that may be a valid reason for delay? They try to indicate that postponement is not easy to acquire and you won't be granted for the reason of trying to obtain an attorney. I have a small child at home. Do you think that if I have a child care issue that day, that that would be valid? My concern with that is that they will say that I am not available for work. Is needing additional time to pull together my case something you think would fly? Any ideas on valid reasons for postponement?
Since the agreement is long, one thing I want you to look for is anything that looks retro active. Those things are really great to point out. There's case law where claimants were asked to agree to retro pay losses of as little as $100, and because it caused them to forego money they'd already earned, it didn't matter that the agreement may not have been a material or substantial change. It was only enough that they had to give up something that they'd already earned.
I'm not sure what you mean by retroactive. There are look back periods to determine the clients covered under the agreement, but the activities that would have to happen to trigger violation start at termination and carry on for two years (unless there is a violation which would extend it). The payments due as a result of violation are 150% of previous billings or expected billings. In the end, because the definitions of protected client and solicitation activities encompass things that I may have absolutely no awareness or involvement in, I could have been liable for hundreds of thousands of dollars, maybe even upwards of a million dollars, depending on what clients defected and ended up where I was working or consulting for. We are not talking chump change here! If you want me to, I can still give you some snippets of those troublesome clauses and my responses later this afternoon.
The funny thing is that when I expressed that I was concerned about stuff out of my control triggering a violation, they verbally said that isn't the intent. So, I told them, that that is what the agreement said, so without modifications, I was unable to sign. The tables were then turned on me saying they were disappointed that I was showing a lack of trust in them. Then, when I told them how I was going to be filing for unemployment, they looked me in the eyes and said multiple times that they wouldn't make it difficult for me and they don't contest unemployment. Good thing I wasn't so trusting, huh?
Quote:
Originally Posted by Chyvan
Did you get a letter with about two paragraphs as to WHY you are currently collecting? Can you type in that letter because it usually guides you to the laws or regulations in deciding your situation, and then we can maybe use the DUA representative handbook to see what the employer might be able to do to trip you up.
I did not actually receive a copy of the determination. The money just started coming. When I look at my online account, it says that I am eligible, but doesn't give any further info. I am going to go over to the hearings office this afternoon and hopefully my file will be ready and it will include this. I'll keep you posted.
Thank you so much for all of the help you have provided thus far. I have to say that the responses that I have gotten in the short time since I made my post have certainly brought my blood pressure down.
Now through Google search of overpayment in Massachusetts, I see that there are ways around having to pay back.
The big key to having leverage is that if you are having taxes withheld from your benefits, then STOP. You want to keep the money in your pocket. The number one collection technique for the states is refund offsets. So far, we have no one saying they got judgments or liens placed against them. It's always taken from future benefits or tax refunds.
Quote:
Originally Posted by MACPA
I have a small child at home. Do you think that if I have a child care issue that day, that that would be valid? My concern with that is that they will say that I am not available for work. Is needing additional time to pull together my case something you think would fly? Any ideas on valid reasons for postponement?
Childcare would raise an "able and available" issue, so don't use that. It's a little soon to come up with a reason because it sounds like you don't even have a hearing date yet, but when we know more, we'll look for things. Things can also happen during the hearing, and when you know what to listen for, you can pounce on a chance to have the hearing resumed later.
It's also a state thing. During the recession, states like NJ would take 6 months just to have a hearing after receipt of paperwork, and any delay would have just added another 6 months. If MA isn't backed up, then they might be able to reschedule quickly, and it won't be worth the effort.
Quote:
Originally Posted by MACPA
I'm not sure what you mean by retroactive.
Things that effect the past. If by signing today, it causes you to incure liability back to a date prior today, that has a retroactive effect. Where you can be penalized for an activity when the agreement wasn't even in effect.
Quote:
Originally Posted by MACPA
Then, when I told them how I was going to be filing for unemployment, they looked me in the eyes and said multiple times that they wouldn't make it difficult for me and they don't contest unemployment.
They probably didn't think they'd have to fight it. MANY employees fail at UI not because of their employers, but because of themselves. Either you're super smart, did prior research, or had good luck. You certainly know what is happening to you and how those things relate to UI.
My employer said to me when I was throwing my weight around "you can't get UI when you quit," and I'm sure they believed that. I'm like, "I'm not quitting, I'm refusing your crap offer of a new job."
What you don't know, is that some people working in the UI system are just plain STUPID, and will not understand what you are saying. Having lived this, my biggest battle was with the UI people applying the wrong standards.
Quote:
Originally Posted by MACPA
I did not actually receive a copy of the determination.
I hope it's there. It helps because if it's a good write up, then you can get insight into what the employer's version was. It's like what Rabrrita was saying. Some employers don't try very hard at the outset because it gets your cards out on the table. The initial determinations are FULLY appealable. After this coming hearing, it gets much harder to change a decision. The record is locked in, there is no new evidence, and there has to be a clear error before a decision is overturned so it cuts heavily in favor of the early victor. However, I only ever won at the board of review which was very rare, but it can be done so long as you get a good record at this hearing.
The money just started coming. When I look at my online account, it says that I am eligible, but doesn't give any further info. I am going to go over to the hearings office this afternoon and hopefully my file will be ready and it will include this. I'll keep you posted.
Quote:
Originally Posted by MACPA
Thank you so much for all of the help you have provided thus far. I have to say that the responses that I have gotten in the short time since I made my post have certainly brought my blood pressure down.
You have all the makings of a termination or a good cause quit, and as Ariadne22 gleaned from your story, you followed every single step you were required to follow.
Did you get a letter with about two paragraphs as to WHY you are currently collecting? Can you type in that letter because it usually guides you to the laws or regulations in deciding your situation, and then we can maybe use the DUA representative handbook to see what the employer might be able to do to trip you up.
I received my file today.
The notice of approval gives the following reasoning:
"The claimant's discharge was not attributable to deliberate misconduct in willful disregard of the employing unit's interest. You discharged the claimant for her failure to sign an agreement that could have put her at future risk regarding your client population and in lieu of her acceptance of a lower level job at 70% of her salary."
Reading that makes me feel pretty good. It's all out there as far as the other position and they acknowledged that I did not need to accept it.
As far as the appeal request, my former employer did not indicate a reason for appeal, but it's pretty obvious from looking at their questionnaire that they are still going to dispute the ruling as a discharge.
This is the statement they gave to the question "What was the reason for the claimant's discharge?" On the separation questionnaire:
"The employee was not discharged. Foronsideration, the manager employee was asked to sign a non-solicitation/non-disparagement agreement as part of her current, supervisory employment title to which she refused. Employee was offered an alternative, non-supervisory/managerial position within the same department, performing similar work in the same industry not necessitating signing the agreement at a salary approximately equal to 70% of the current salary to which employee declined under the assertion that it was not a suitable position."
An additional thing that I note from my file is that the employer didn't submit their questionnaire until 3/12/15 when it was due 3/2/15. From my understanding, based on what I have read, if the employer doesn't respond timely without good cause, they don't have a right to receiving the determination or have a right to be a participant in an appeal. Is it possible for me to motion for a dismissal of appeal due to their non-timely response? If so, when would I do that? At the hearing?
Was there really "consideration"? I don't think getting to keep your current job is consideration.
Quote:
Originally Posted by MACPA
An additional thing that I note from my file is that the employer didn't submit their questionnaire until 3/12/15 when it was due 3/2/15. From my understanding, based on what I have read, if the employer doesn't respond timely without good cause, they don't have a right to receiving the determination or have a right to be a participant in an appeal. Is it possible for me to motion for a dismissal of appeal due to their non-timely response? If so, when would I do that? At the hearing?
Rabbrita seems to know these things the best, but you are right. If there are missed deadlines, there are opportunities to derail things so that the hearing just prematurely ends.
What was the date on the determination notice approving your unemployment payments?
What was the date the employer used on their appeals request?
What was the date unemployment indicated they received the appeals request?
What was the date unemployment issued a notice of the appeals to you?
and, What was the date you received the notice of appeals?
The poster is talking about the questionnaire. The one where they ask, "why was the employer discharged"? She's saying that the employer was late submitting it. In my state, it could compromise an employer's right to be an interested party. I don't know if it means that they lose there rights to appeal or just their right to have their reserve account credited for improperly made payments.
However, with the employer's response, I'm thinking the claimant doesn't have much to prove. They admitted to the pay reduction, the new job, lower pay rate exceeding the 20% generally accepted cutoff, and all that's left is just a matter of the document. At 7 pages and the employer's unwillingness to negotiate, I would impart some adverse terms that would make a claimant not want to sign.
What was the date on the determination notice approving your unemployment payments?
The date of the determination notice is April 8.
Quote:
Originally Posted by Rabrrita
What was the date the employer used on their appeals request?
April 14 (online request)
Quote:
Originally Posted by Rabrrita
What was the date unemployment indicated they received the appeals request?
April 14.
Quote:
Originally Posted by Rabrrita
What was the date unemployment issued a notice of the appeals to you?
April 14 (online)
Quote:
Originally Posted by Rabrrita
and, What was the date you received the notice of appeals?
April 14(online)
The dates on the appeal request are not what I'm targeting. Those are well within the timeframe. My question is if they even had the right to appeal as they did not return the separation statement timely. It is indicated that it was due on March 2 and they didn't submit until March 12.
MA is not going to deny an employer their right to appeal just like they would not deny a claimant their right to appeal if they missed the original response deadline by a week or so. Heck, some states let an employer appeal within 365 days after the determination is issued regardless if they responded or not.
You have the right to appeal the Appeals Notice by filing an appeals request. You can outline the specific legal statutes to support your claim as well as any BOR or Court cases to support your position that they lost their right to appeal via the delay. The employer will have an equal right to file statutes, BOR and Court cases that support their position. In the end, unless you are talking some egregious act of delay in filing deadlines, case law supports the employer.
If the appeal is denied, you can appeal the appeal to the BOR. If they deny, you appeal to the state court. Its treated the same as an appeal of a determination, over payment, wage determination, able & available, etc. You can also object to the appeal at the Appeals Hearing using the same evidence, however, it's weight is diluted at the hearing as the ALJ may deny just to hear the merits of the non-monetary appeal.
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