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I was fired for (misconduct) for a supposedly stealing an phone charger from one of the stores I deliver too but I asked permission to borrow the charger from the porter. I filed for unemployment and received my claims for 2 months and then I get a letter in the mail saying they overturned my claim because they have video evidence, But I told my manager I had permission to borrow it. Now I have to pay all the money back which I cant afford. Ive contacted legal aid society and said they would see if someone would pick up the case by Monday, But I feel that's cutting it too close. Could someone pls help me on what I need to do to prepare for this matter.
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 1/07/2014 cannot be used to etablish any subsequent claim for unemployment.
Reason
You were discharged from "Company" because you stole a cell charger from an employee of the business you serviced on 12/26/13. The employee reported his charger was missing and video evidence shows that you took it. Your explanation that you borrowed the charger with permission but forgot to return it is not accepted. You should have known that your action would jeopardize your employment.
Second Letter -
Determination :
" You Lost Your Employment Through misconduct in connection with your employment"
Reason :
Refer to the original letter.
Last edited by Japspecvr6; 05-12-2014 at 01:14 AM..
You'll need some time to learn the system, so I hope it's not tomorrow.
Just because the decision says there is video doesn't mean it really exists or the person that wrote the decision actually saw it. When you have a hearing, quite often an employer that won at the start goes to the hearing thinking that because you were already denied once that you'll get denied for the same reason. Some employers don't even go to the hearing. Doesn't work that way. These hearings are do overs (de novo) meaning the employer doesn't get to take any short cuts, and some employers don't get that.
The part of your story that hurts you is "Your explanation that you borrowed the charger with permission but forgot to return it is not accepted" because that is an admission that something was removed. However, at the hearing, you do have an opportunity to reshape how this sounds.
Before your hearing depending on if it's inperson or by telephone, you will be able to view the evidence or the evidence will be mailed to you. It's important that you determine if the video is being submitted and that you actually watch it.
If the video is not presented, you will be be able to object to any testimony as to it's content. You have to be able to do this and not avoid confrontation. In legal type stuff, testifying to the contents of a video is hearsay. The best evidence is the actual video. By objecting to any testimony as to the contents, you'll have a much better chance of getting your testimony believed because there will be nothing to show that you took anything.
Also, this person that gave you permission. Will that person testify that they gave you permission? It will help a lot if they will, but if the person thinks they'll lose their job, they may not or may even lie and make things worse. So, think that one through.
I hope the part about "forgetting" was an error on the part of the determination writer. If you borrowed the charger with permission, and it was returned then that makes things work. You many even have forgotten but returned it when reminded. The key thing here is that you don't want to be in possession of that charger anymore. You could turn it in today, and testify, "the charger was returned." You'd definately want to stay away from the "when" aspect unless it was returned prior to being fired.
Also, look to policies here. In retail, stores call in the police for shoplifting at the drop of a hat. If you truly had permission, the fact that the police weren't called in could be anecdotal evidence of that.
It's not stealing when you have permission, and when it's returned, it most certaintly isn't. I don't know the legal definition of stealing but if lending money is any analogy lots of people would be in jail for borrowing money and not paying it back, but that doesn't happen.
You want to make this look like a situation where you got fired because of the appearance. Maybe the employer just thinks it looks bad that you borrowed something, and to set an example, they are using a zero tolerance thing against you.
Another thing that comes into play is the value of the item. So if the ALJ/hearing officer doesn't ask, you need to do that when it's your turn to question the employer. While I don't know the rule on value for NY, I did read a case on a claimant that stole many small amounts. They were treated by UI as multiple thefts and since no single one exceed the statutory amount to be denied UI, the claimant got benefits even though in the aggragate the thefts did exceed that amount.
You also mentioned having to pay back money. Did you say on your initial UI application that you were "laid off" or "discharged"? If you put "laid off" you may not have a leg to stand on, but if you put "discharged," the state was supposed to investigate before giving you any benefits. If they failed to investgate, and gave you the money, that would be a nonfraud agency error overpayment. Near the end of your testimony (not to be confused with closing statements), you can say, "if I lose this appeal, I want a waiver of the overpayment under equity and good conscience." May or may not work, but when it's not your fault you received benefts and you're dirt poor, it's the first step in not having to pay back the money. If "overpayment" is not an issue on your hearing notice, you can skip this step. However, you will eventually have the opportunity to do this if you get an overpayment notice that has appeal rights, and then you can do it then. My state does the overpayment issue at the hearing, and failing to ask for the waiver at that hearing means that you don't get a second chance to ask after you later find out that you lost.
Do you have a hearing date? First of all I want to say thanks for all this, I wouldn't have know any of this.
You'll need some time to learn the system, so I hope it's not tomorrow.
The hear is set for thursday may 15th
Just because the decision says there is video doesn't mean it really exists or the person that wrote the decision actually saw it. When you have a hearing, quite often an employer that won at the start goes to the hearing thinking that because you were already denied once that you'll get denied for the same reason. Some employers don't even go to the hearing. Doesn't work that way. These hearings are do overs (de novo) meaning the employer doesn't get to take any short cuts, and some employers don't get that.
On the back of the hearing papers it said my managers name, Im pretty sure that he will be showing up
The part of your story that hurts you is "Your explanation that you borrowed the charger with permission but forgot to return it is not accepted" because that is an admission that something was removed. However, at the hearing, you do have an opportunity to reshape how this sounds.
How would I Reshape that without lying?
Before your hearing depending on if it's inperson or by telephone, you will be able to view the evidence or the evidence will be mailed to you. It's important that you determine if the video is being submitted and that you actually watch it.
If the video is not presented, you will be be able to object to any testimony as to it's content. You have to be able to do this and not avoid confrontation. In legal type stuff, testifying to the contents of a video is hearsay. The best evidence is the actual video. By objecting to any testimony as to the contents, you'll have a much better chance of getting your testimony believed because there will be nothing to show that you took anything.
I haven't personally seen the video, But I was told that there is one. But if there is one, It would only be me and the porter in the store at time
Also, this person that gave you permission. Will that person testify that they gave you permission? It will help a lot if they will, but if the person thinks they'll lose their job, they may not or may even lie and make things worse. So, think that one through.
I doubt that guy would take the stand, I don't think was a legal alien so.....And the turnover rate there for that position is high so I doubt he still even works there.
I hope the part about "forgetting" was an error on the part of the determination writer. If you borrowed the charger with permission, and it was returned then that makes things work. You many even have forgotten but returned it when reminded. The key thing here is that you don't want to be in possession of that charger anymore. You could turn it in today, and testify, "the charger was returned." You'd definately want to stay away from the "when" aspect unless it was returned prior to being fired.
I wanted to return to store and return the charger but my manager stopped me from going there by making up a bogus story about delivering service that day, During that time from I borrowed it, They were conducting a investigation without me knowing. I would have returned it that service day. And even after I was fired the Gm advised me not to return to the customer.
Also, look to policies here. In retail, stores call in the police for shoplifting at the drop of a hat. If you truly had permission, the fact that the police weren't called in could be anecdotal evidence of that.
No police were ever called at all, While I was suspend, I actually thought they would come knocking at my door over this since it is theft. But no one ever came.
It's not stealing when you have permission, and when it's returned, it most certaintly isn't. I don't know the legal definition of stealing but if lending money is any analogy lots of people would be in jail for borrowing money and not paying it back, but that doesn't happen.
You want to make this look like a situation where you got fired because of the appearance. Maybe the employer just thinks it looks bad that you borrowed something, and to set an example, they are using a zero tolerance thing against you.
That's exactly what I would like to express, I'm aware that I broke the policy but I didn't steal the charger, And I feel they exercised there zero tolerance policy against me.
Another thing that comes into play is the value of the item. So if the ALJ/hearing officer doesn't ask, you need to do that when it's your turn to question the employer. While I don't know the rule on value for NY, I did read a case on a claimant that stole many small amounts. They were treated by UI as multiple thefts and since no single one exceed the statutory amount to be denied UI, the claimant got benefits even though in the aggragate the thefts did exceed that amount.
The value of the item is less $30 bucks, Its literally just the iPhone usb wire. How would I be able to find out the value for NY ?
You also mentioned having to pay back money. Did you say on your initial UI application that you were "laid off" or "discharged"? If you put "laid off" you may not have a leg to stand on, but if you put "discharged," the state was supposed to investigate before giving you any benefits. If they failed to investgate, and gave you the money, that would be a nonfraud agency error overpayment. Near the end of your testimony (not to be confused with closing statements), you can say, "if I lose this appeal, I want a waiver of the overpayment under equity and good conscience." May or may not work, but when it's not your fault you received benefts and you're dirt poor, it's the first step in not having to pay back the money. If "overpayment" is not an issue on your hearing notice, you can skip this step. However, you will eventually have the opportunity to do this if you get an overpayment notice that has appeal rights, and then you can do it then. My state does the overpayment issue at the hearing, and failing to ask for the waiver at that hearing means that you don't get a second chance to ask after you later find out that you lost.
When I initially filed I believe I did put lack of work, But then sent me a letter to write out what was the cause, I wrote the exact same story on the second notice then they approved my claim, Then 2 months later they revoke it again, Then I appeal, Now we are here.
With that information do I stand a chance at fighting this ?
Sure. The employer has to prove you stole it. You need to see that video. If the porter is letting you take it, and it's on film, it's going to sure look like the guy gave you permission.
If Apple pricing is any indication an Iphone USB cable $19.99. However, I've seen knock off versions as low as $5.
It sounds like you have an employer. As part of your job, you are sent to stores. These stores don't sound like your employer's stores but rather stores that your employer has a contract with.
The rub is that your employer is firing you most likely on an accusation of a customer. The problem is that the customer will NOT be at your hearing to provide first-hand testimony of what happened. There is just nothing solid yet that a video is going to be presented. Your employer is going to be making an entirely hearsay case that you stole something. That's not usually acceptable in a UI hearing unless you have jerk for a hearing officer. You can also object to the video if it was prepared by the customer if the customer is not there to authenticate it. A video with no one to testify as to how it came to be doesn't mean much. It could have just as easily been a video of you "acting" in a movie/commecial and then they use it against you and make up a story to go along with what is seen.
You as the one that was there are providing first-hand testimony. Only you know what has said between you and the porter at the store. Your manager doesn't know squat because he was NOT there. That is crucial in a UI hearing. This is a lot like a court. There are rules of evidence and an employer testifying that, "I was told . . . " just doesn't cut it.
However, you can admit yourself out of benefits. You don't have to lie, but you need to make it clear that you stole NOTHING.
Sure. The employer has to prove you stole it. You need to see that video. If the porter is letting you take it, and it's on film, it's going to sure look like the guy gave you permission.
How would I be able to see that video before the day of the hearing ?
If Apple pricing is any indication an Iphone USB cable $19.99. However, I've seen knock off versions as low as $5.
Yes, Its about that price
It sounds like you have an employer. As part of your job, you are sent to stores. These stores don't sound like your employer's stores but rather stores that your employer has a contract with.
Yes, It a garment delivery company. My employer has a contract with that store, That's why im pretty much expendable.
The rub is that your employer is firing you most likely on an accusation of a customer. The problem is that the customer will NOT be at your hearing to provide first-hand testimony of what happened. There is just nothing solid yet that a video is going to be presented. Your employer is going to be making an entirely hearsay case that you stole something. That's not usually acceptable in a UI hearing unless you have jerk for a hearing officer. You can also object to the video if it was prepared by the customer if the customer is not there to authenticate it. A video with no one to testify as to how it came to be doesn't mean much. It could have just as easily been a video of you "acting" in a movie/commecial and then they use it against you and make up a story to go along with what is seen.
Yes, the video would have to be prepared by the customer. Now its all about seeing the video and trying to get it dismissed.
You as the one that was there are providing first-hand testimony. Only you know what has said between you and the porter at the store. Your manager doesn't know squat because he was NOT there. That is crucial in a UI hearing. This is a lot like a court. There are rules of evidence and an employer testifying that, "I was told . . . " just doesn't cut it.
But there gonna say the porter didn't give me permission, This is the reason they fired me for. How do make light to that so judge see's that ?
However, you can admit yourself out of benefits. You don't have to lie, but you need to make it clear that you stole NOTHING.
That's I've maintained from day one, But there weren't try to hear that at all. Would a personal/closing statement help the case? I feel like the video will be presented.
In the hearing notice are instructions to submit evidence. What you have to do, is what the employer has to do. If says you need to submit the evidence to the hearing location, that is where you go to view the evidence. If it says you have to submit to the employer and the hearing location, then you know tha the employer has to mail to you, and if it never comes, then you know it wasn't submitted to the hearing officer and if it was but you never got your mailing, then you can have it excluded because you didn't receive it and have the opportunity to do something about it.
The employer can say whatever they want, but they have to prove it. Chances are if the video is there, there will be no audio. There will be no way to determine whether the porter gave permission or not. When it can't be determined conclusively, you get the benefit of the doubt. The employer can't speculate as to what may be going on. They weren't there to hear what was said. UI benefits are remedial. In the absence of clear proof that you committed misconduct, the system awards benefits. To do otherwise, employers could make up stuff all the time and never pay a UI claim, and it would be a system with on chance of collecting.
Closing statements don't win cases. A closing state is where you summarize events, and then make a conclusion.
Example: The employer presented no first-hand testimony of the events. There is nothing but hearsay evidence. There is no proof I did anything wrong. I should be granted benefits.
Don't be so sure about that video. It's the CLIENT's video. Try asking a store to see their footage if you get mugged inside their store. They won't do it unless the police ask for it, so they say. I had my bike stolen in view of a store security camera. The store didn't care, and the police wouldn't ask for the video. Where I worked, we had cameras and a coworker's purse was stolen, and the police wouldn't ask for the video nor did the employer care enough to see who one of the other stealing employees might be. I'm just not convinced there is going to be a video at the hearing. There may be one, but I doubt very much that the UI people saw it in making the decision.
Deputies that make intial determinations don't work the way the ALJs do. They tend to make much harsher decisions. People on this forum win a lot of their appeals after they get help on how the process works, what counts as good evidence, and how to say or not say things so that it makes the right impression.
So of course I didn't get a from the legal aid society, smh. I a bit nervous as far as the language and what questions I should ask. I see the what your saying as far as the video evidence, But how should I word it ? What questions to ask my former employer to stop them from using it. Forgive me if the info is right in front of me, but i'm just really really nervous.
Maybe you can provide an outline for me verbatim ? Thanks in advance. honestly. thanks you.
First off, tell me how you are supposed to submit evidence. It's pointless to plan for things that may or may happen. You have to start with what you know. What did the deputy put in the notes? What did the employer say on their response to the UI application? All this stuff is where you plan your strategy, and as of yet, I don't think you have all the pieces. All you have is a determination, and becuse of what was in my determination, I know that sometimes they can be complete works of fiction or distorted representations of half-truths.
Go view that prehearing file or figure out when you can expect your hearing packet in the mail. You haven't even told me if your hearing is by phone or in person.
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