Appealing Unemployment--New York (claim, EDD, work, UI)

[Im-your-huckleberry]

In a nutshell, I've experience discrimination from my ex-employer and I've complained many times regarding it. So I've had a target on my back. An employee and I wasn't apparently docking our time properly. They could've fired me alone but decided to fire both of us because the retaliation would've been very clear.

Not surprised that we both did the same thing but they classified as what I did as misconduct but the other employee's unemployment (not contested and no problem going through).

They said that there was a rule regarding this but I've searched the hand but and never found such rule.

Also how can I prove that this rule(if indeed it was a rule) was not enforced?

I filed a request for a hearing and I got a call from the EDD and I told him that I don't have anything to say until the hearing expect I didn't do any misconduct.

I'm not sure if the hearing will be in person or via telephone. Its about an hour and half away.

Any advice? Thank you very much.

[Chyvan]

Originally Posted by Im-your-huckleberry

Also how can I prove that this rule(if indeed it was a rule) was not enforced?

You can't use the coworker because you both were fired.

Originally Posted by Im-your-huckleberry

I'm not sure if the hearing will be in person or via telephone. Its about an hour and half away.

Probably phone.

There's 6 elements to a rules violation:

There was a rule

You knew the rule

You broke the rule

The violation was material

The violation injured the employer

You were warned for the samething in the past.

With most claimants, they establish all the elements at the time of application for UI in their own words and don't even know it, and then say things like, "it's not misconduct because I was on a prescription from my doctor that impaired my thinking."

You need to think about everything you've admitted to, and try to negate the remaining elements that are left.

[Im-your-huckleberry]

What happens if the employer let the rule/policy go in the past? I just got some new information that the employer told unemployment. Basically they said they seen me do it several times in the past but their policy calls for "immediate termination". Would this help prove that they didn't follow their own policy and frequently allowed things like that happen? Thank you

[Chyvan]

You're jumping the gun. You need the denial IF it even happens, and then you plan what may or may not work.

[Rabrrita]

Although employers are expected to follow the rules they write, it's always a touchy issue when their decision not to follow a rule is favorable to an employee. Example, they have a zero policy for making personal calls. Twice they caught an employee making personal calls but it was to check in on a sick child. The last time they caught that employee again was while calling to schedule car repairs. Because they excused the other two, doesn't mean the last one can't be enforced. You also run the risk of showing how flagrant you violated the rules.
"Gee, your Honor, I shouldn't be charged with murder because I killed 5 people before and the cops never arrested me, so I thought it was alright this time!"