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Old 02-07-2014, 08:06 PM
 
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I was initially denied unemployment insurance after being terminated for a company I worked for over 4 years. I have to go to an appeal scheduled for next week and I was wondering if anyone here could help answer a few questions:

A) If my employer does not show up, can I ask for an automatic dismissal in my favor? The company is not located near NYS and would most likely have to send a lawyer as representation.

B) Will I be able to bring a witness to testify? I have a current employee who is willing to testify on my behalf that I was treated differently and that I did not commit gross misconduct as he has done same mistake I have by accident but was given the opportunity to fix it.

C) There is a typo of dates on the initial unemployment insurance claim when i was denied benefits. They used the wrong dates as "proof" of when I committed gross misconduct. Can this be used against the employer?

D) Am I expected to give full detail on how an error might occur for a job I did over 6 months ago? I have very little knowledge of how it happened and can't really explain the error in full detail.

I was fired for work I completed over 6 months ago and the information had to be extensively researched to even accuse me of any wrongdoing. My employer and I both know I would have rectified the mistake asap if I was notified because I do not control the final processing of work. The employer is responsible for double checking and ensuring quality control while my job is more toward having all the information possible for our clients.

I was essentially removed because my district manager felt threatened I would have taken his job as I am quickly earning higher education and have shown progress beyond his capability. I spoke to a lawyer briefly and she told me while this is most likely the reason for my termination, it would not be usable in court as the judge will only want to hear things related to the specific incident.

The only "hard facts" I have on the case are the numbers. This was 1 work order out of over 7000 I have personally completed with no issues. I have never been verbally warned or written up for the quality of my work. I am hoping this would be sufficient to win my case. The job I did that was the reason for my immediate termination was done 4 months from my last day of work.

Last edited by cee4; 02-07-2014 at 08:20 PM..
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Old 02-07-2014, 08:15 PM
 
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What was the exact wording of your intial denial?

There is no way that something that you did 6 months ago can be used as misconduct today as a reason to get you denied benefits. There has to be a causal connection between what you did, and why you got fired. In this case it's absent. That's why I want to read the whole decision. Either you will do just fine at your appeal whether your employer shows up or not, or you are missing something from the decision that will help you prepare for the case. Also, 1 mistake out of 7000 correctly processed items is NOT gross misconduct let alone any kind of misconduct. It's just a mistake. You can bring your witness, but I doubt you'll need the person.
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Old 02-07-2014, 08:30 PM
 
590 posts, read 1,154,559 times
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Quote:
Originally Posted by Chyvan View Post
What was the exact wording of your intial denial?

There is no way that something that you did 6 months ago can be used as misconduct today as a reason to get you denied benefits. There has to be a causal connection between what you did, and why you got fired. In this case it's absent. That's why I want to read the whole decision. Either you will do just fine at your appeal whether your employer shows up or not, or you are missing something from the decision that will help you prepare for the case. Also, 1 mistake out of 7000 correctly processed items is NOT gross misconduct let alone any kind of misconduct. It's just a mistake. You can bring your witness, but I doubt you'll need the person.
I do a plethora of different projects but this one required proof of work via photographs. The photographs show before/after/proof of date by pulling receipts from machines. I had all the required photographs but two of them apparently seemed to be from a previous visit I had of the same location. All the work was done to standard and the photos did not show anything significantly different as it was standard tech maintenance call.

The initial decision stated because I had two photographs uploaded to the job for the client it was considered on purpose and gross misconduct.

The proof of date photo alone verifies that I was on site for the alotted time so nothing was done to pull a fast one on my employer, just a mistake of uploading outdated photographs along with current ones.

Word for word here:
You were discharged for misconduct in connection with your employment with the above employer. As a result of this determination the wages earned with this employer prior to 11/05/2013 cannot be used to establish any subsequent claim for unemployment insurance you may file. You were discharged on 11/05/2013 after it was discovered that you submitted falsified work documentation. Although you contend that it was a mistake, you submitted more than one photograph that was submitted both on 12/20/13 (this is the date typo) and 7/19/13 as a current photograph. The nature of your work requires the utmost integrity. You are disqualified from receiving benefits under section 593.3 of unemployment insurance law.”
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Old 02-07-2014, 08:42 PM
 
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Yeah, one of the requirements for this to stick is whether it's "material." If it took the employer from 7/19 to 11/5 to figure this out ,then something material is missing. I think the writer of the decision may have taken liberties with, "the nature of your work requires the utmost intergrity."

This might be a big deal if we're talking about a commercial jet turbine, but that's something to bring up at your hearing by questioning your employer. Why did it take you so long to discover this error? What happened because of this error? Was it really even an error or were there enough pictures that anyone looking at it would have known that the 12/20 one didn't belong?
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Old 02-07-2014, 08:50 PM
 
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Quote:
Originally Posted by Chyvan View Post
Yeah, one of the requirements for this to stick is whether it's "material." If it took the employer from 7/19 to 11/5 to figure this out ,then something material is missing. I think the writer of the decision may have taken liberties with, "the nature of your work requires the utmost intergrity."

This might be a big deal if we're talking about a commercial jet turbine, but that's something to bring up at your hearing by questioning your employer. Why did it take you so long to discover this error? What happened because of this error? Was it really even an error or were there enough pictures that anyone looking at it would have known that the 12/20 one didn't belong?
Realistically my district manager must have spent hundreds of hours going through my work to find the mistake as it the project doesn't involve anything regarding confidential information, high security clearance, or vital like a jet engine part.

The way I was terminated was pretty much a phone call in the middle of my day off, told I am terminated and I would have to speak to HR, called HR and was hung up on after being told the job ID number, all website/email access removed immediately, and basically no further communication beyond a letter in the mail a month later.

Everyone I have spoken to told me I should definitely win but I just didn't want to take any chances. Hopefully things will work out.
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Old 02-21-2014, 01:30 PM
 
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Default NYC Unemployment appeal decision - lost

I received my decision in the mail from my prior unemployment appeal trial and the decision was ruled against me. The judge did not seem to understand the information surrounding my case but took my words at face value.

The next step is the appeal board but the decision does not involve all the information I provided during the trial. The judge omitted the facts surrounding my case and focused on what she deemed "relevant".

Will I be able to submit further evidence to the appeal board? There is also falsified information on the employers part which I was not given an opportunity to object against during the trial.
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Old 02-21-2014, 01:43 PM
 
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Quote:
Originally Posted by cee4 View Post
The next step is the appeal board but the decision does not involve all the information I provided during the trial. The judge omitted the facts surrounding my case and focused on what she deemed "relevant".
It would be best to keep everything in the same thread. Post your entire decision here //www.city-data.com/forum/unemp...nt-appeal.html I want to read what the judge got out of the hearing vs what you said before.

Quote:
Originally Posted by cee4 View Post
Will I be able to submit further evidence to the appeal board? There is also falsified information on the employers part which I was not given an opportunity to object against during the trial.
You generally don't get to submit any new evidence but after I see the decision, I might come up with ideas to get it in. You pretty much have to confine yourself to all documents and testimony that were AT the hearing.
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Old 02-21-2014, 02:07 PM
 
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Update -

Findings of fact:
As part of his job duties, the claimant would take camera surveys and submit the photos of the ATM's to the employer. During this period of employment, the supervisor in the area where the claimant worked noticed that there were lights out on a particular ATM. This type of problem was supposed to be reported by the technician. When the supervisor looked to see who cleaned that ATM, he noticed that the photos that were submitted by the claimant were not current. The supervisor referred this matter to human resources. The employer's human resources department then looked at the claimant's prior work orders. They found that the claimant's photos from November were the same as his photos submitted in July. The claimant was aware of the employer's ATM service requirements which required him to take before and after photos of the entire ATM and tag the photos with individual labels. The claimant was contacted and given the work order number to research and given an explanation. The claimant indicated that he made a mistake due to the process of uploading the photos in bulk. AS a result of the submission of falsified work documentation, the claimant was discharged. The claimant contended that he was discharged for filing a prior complaint against human resources and the district manager.

OPINION: Pursuant to labor law 593 (3), a claimant is disqualified from receiving benefits after having lost employment through misconduct in connection with that employment. Pursuit to Labor Law 527, the wages paid in such employment cannot be used to establish a future claim for benefits.

The credible evidence establishes that the claimant was discharged because he submitted falsified work documentation. I note that the evidence submitted by the employer clearly indicates that the claimant submitted the same photos of work done in December for work done in August. I find that the claimant was aware of the employer's ATM service requirements, but did not follow those requirements. I do not credit the testimony of the claimant that he made a mistake during the uploading process, or that he was discharged for other reasons. The claimant's actions rise to the level of misconduct. His employment ended under disqualifying conditions.

My issues on this decision:
1) I was never given a chance to explain what I do as a job. Instead the judge asked the HR rep from the company who has no clue beyond some of the basic work I do. The statement "would take camera surveys and submit photos of the ATMs" are two completely different projects and not related to one another. The work order in question was a maintenance call. Camera surveys are based on entire bank layouts and not relevant at all.

2) The judge does not seem to understand the concept of how photo storage on Windows based pcs work. I tried to explain clearly how I drag multiple photos (8+ at a time) to the work order based on the thumbnail images. I do not view each photo in detail to upload. The photos had very specific similarities which are not apparent in thumbnail view as ATMs do not change in appearance or location unless there is a major renovation. I also explained on the work order I label them with a thumbnail preview and not each photo in full detail.

3) Judge focused on the photos instead of the entire work order which I submitted as evidence. I explained clearly how there is evidence of myself being on site due to a receipt photo I pulled from the ATM machine. The work was done to standard on site, the work order is just a reflection of the photos I have taken during that period and not proof of work. My proof of work can only be verified on site.

4) I tried to question on why my employer decided to research my work order and the judge quickly stated that has nothing to do with this trial. I was not able to question my employer on agreeing that lights can go out after a service call due to the nature of my work. Therefore I do not even know if my supervisor was even the reason for the initial research of that work order and whether his statement was true. My employer also responded with a complete lie "the 3 previous work orders had lights out" which would be false as those work orders would not be approved if that was the case. Light bulbs in ATMs can go out the next day from a visit as there is no reason to check the inside lighting system UNLESS a light is out at the beginning of the visit. Therefore it is credible that the light went out after my last visit (this happens all the time) but I was not able to establish this fact.

5) I noted the length of time between the work order in question and the termination date but there was no mention of that in her opinion or findings of fact.

6) Employer was asked why I was not contacted before my termination by any superior but was not able to give an answer beyond "I don't know". This was not included in the findings of fact.

7) I noted the work order was an isolated case and the mistake was done in good faith. Isolation was not noted in findings of fact.

Tidbits of information I would like to add to my appeal that was not in the trial:

i) My employer did not receive any negative consequences due to my actions, they were still paid for the work. Bank of america is not even aware of this issue. How can it be misconduct if there were no consequences due to my mistake? Unfortunately I was not able to inform the judge or question my employer on this aspect.

ii) Employer admitted that corporate processors can make mistakes and not catch these findings. If they are able to make a mistake and not be terminated, why am I terminated for misconduct if they are the ones responsible for final approval?

iii) This work order represents about .02% of my entire workload done for the company.

When I read the judges decision it seems to be "my employer did not state one lie and the employee has submitted lies" and no legal basis beyond that.

Last edited by cee4; 02-21-2014 at 02:19 PM..
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Old 02-21-2014, 02:30 PM
 
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I think you make some really good points.

regarding i) that's fair game in an appeal. You don't say, "the employer was paid" you simply say "the employer did not testify to any adverse consequences." It's not new evidence when you say it that way.

ii) you need to use the words "nonuniform enforcement" along with this.

iii) Was there any testimony as to just how many you did? If not, try to think of something that was said about the number you did per day month so that this looks petty.

I'm going to reread this a couple times. I'm just not sure why the judge thought this was a big deal.

I think in your appeal that we need to look to the definition of "falsified."
1.
alter (information or evidence) so as to mislead.

2.
prove (a statement or theory) to be false.








The ALJ made a real leap from "They found that the claimant's photos from November were the same as his photos submitted in July" to then saying "falsified."



Your argument for the appeal is that a one-time error doesn't rise to the level of misconduct.



Also, try to work with the dates. There is this November to July stuff that is messing me up. Were you at this machine in Nov? Why were the July photos still in your camera? I'm trying to figure out if you were fired for a mistake in November or July.

Last edited by Chyvan; 02-21-2014 at 02:46 PM..
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Old 02-21-2014, 02:55 PM
 
590 posts, read 1,154,559 times
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Quote:
Originally Posted by Chyvan View Post
I think you make some really good points.

regarding i) that's fair game in an appeal. You don't say, "the employer was paid" you simply say "the employer did not testify to any adverse consequences." It's not new evidence when you say it that way.

ii) you need to use the words "nonuniform enforcement" along with this.

iii) Was there any testimony as to just how many you did? If not, try to think of something that was said about the number you did per day month so that this looks petty.

I'm going to reread this a couple times. I'm just not sure why the judge thought this was a big deal.

I think in your appeal that we need to look to the definition of "falsified."
1.
alter (information or evidence) so as to mislead.

2.
prove (a statement or theory) to be false.








The ALJ made a real leap from "They found that the claimant's photos from November were the same as his photos submitted in July" to then saying "falsified."



Your argument for the appeal is that a one-time error doesn't rise to the level of misconduct.



Also, try to work with the dates. There is this November to July stuff that is messing me up. Were you at this machine in Nov? Why were the July photos still in your camera? I'm trying to figure out if you were fired for a mistake in November or July.
I had photos from the previous visit on the most recent work order which was 4 months from my termination date.

Atms are visited on a rotational basis set by the company.

I save all my photos by location on my desktop just in case they need to be referenced for information.

All photos are labeled photo1.jpg - photo2.jpg due to the way the iphone saves the photo. I do not store the photos on my phone after being transferred. Therefore I have multiple versions "photo1.jpg photo1(1).jpg. There are way too many photos to relabel them all individually.

My employer submitted 6 color photos of which I was unable to make copies of as the labor office only provides black and white photos. I take multiple photos per requirement to have backups just in case of corruption or some sort of other mishap that can happen. Photos are taken at different distances for each requirement to ensure I have backups for any issue for any photo submitted.

My employer is using the term "falsified" by claiming I cropped photos which are A) impossible to prove b) Can be explained due to above description. Unfortunately explaining this does not seem to work due to the computer illiterate ALJ judge. However there was no mention of "cropped or altered" in any of the statements, simply "falsified".
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