Appealing A Redetermination Of Unemployment Benefits

[Adamski]

Guys,

Well this ole BB has been pretty slow the past few days ... due in no small part to the lazy, hazy, crazy days of summer, no doubt. So I thought I'd take a moment to tell you what I've been up to lately.

I am preparing for oral arguments in a Michigan Unemployment Agency benefit appeal. Since this is my first such appeal ever, I'm learning plenty already. For example, I've learned that Michigan will provide an "advocate" for either party free of charge. The advocate may or may not be an attorney but he or she must have at least participated in a advocacy class and passed a test. I selected my advocate from a cast of about 12 qualified advocates.

The advocate then reviews my case and decides if I have a chance to prevail or not. If he thinks I might win, he'll also accompany me to the hearing. If he thinks I won't win, he will not accompany me to the hearing but I can still go and fight the case by myself.

This hearing is scheduled as a "Telephone Hearing" before an Administrative Law Judge but I've requested permission to appear in person as is my right. I've also requested a change of venue to bring the hearing closer to me and my advocate as well as the former employee involved in the case. I am still waiting to hear back on those requests.

I must provide copies of any documents that I'll present at the hearing to the former employee at least 3 days prior to the hearing date.

My intent, should I prevail, is to terminate all future benefits for this employee. This employee was fired for insubordination and failure to perform her duties without just cause.

[chad]

Good luck larry, let us know how it goes.... This place has been slow, here in cali it doesnt even feel like summer, we are not even hitting the 90deg mark... how is business for everyone right now? I know its summer time and things slow down.

[fschmidt99]

Larry,

When you terminated the employee, did you give them a copy of the documents and ask them to sign that they accepted same.

Here in Tennessee, the state has a standard form that may be used when an employee is terminated. It is designed as a three part form to be signed by the employer and the employee. One copy to employee, one copy to the employer and one part to the state.

The section I always liked on the form was the section where I marked terminated for cause and then listed the actions that caused the termination. It also had a section for "Does this employee qualify for unemployment benefits?" Since I was terminating I always marked NO.

I always used this form as an attachment whenever I wrote-up an employee. The employee thought I was sending these forms to the state. By the time I was ready to terminate, I had three or four of these forms in their file.

Best advice, go with every piece of paper evidence to support your case. If you have video evidence take that as well. I assume that you wrote the employee up several times (had them sign the write-up) before the termination.

Even if your advocote thinks your case is a loser --- go anyway. First, it will be a learning experence for the future and two you never know which side of the bed the Judge got out of that morning. If you talk to enought lawyers, you will find that they have all lost a rock-solid case because the judge was in a bad mood that day. If you are lucky the other side will p-ss him off so that he rules in your favor.

Final and "Best Advice" is treat the judge with the utmost respect, wear a suit and tie, wait your turn to speak, never shout, never interupt anyone speaking and above all don't p-ss off the judge.

[James2011]

"Final and "Best Advice" is treat the judge with the utmost respect, wear a suit and tie, wait your turn to speak, never shout, never interupt anyone speaking and above all don't p-ss off the judge."

universal true!!!!!!!!!!!!!!!

[SoooperDave]

Larry,
I've appealed at least twice and here in MN it was very easy....just a form to fill out.
Won my argument both times, no further questions asked.
Good luck.

[Adamski]

... I've appealed at least twice and here in MN it was very easy....just a form to fill out. Won my argument both times, no further questions asked...

Dave,

Just to be clear, I've lost the first determination of qualification and I've lost the redetermination of qualification. These were done with written arguements - not in person. This appeal is my final chance to prevail and I'm fighting an up-hill battle at this point.

[Adamski]

Fred,

Thanks for the advice. Michigan does not use a special form for terminating an employee but it sure sounds like a good idea to me. I plan to follow through with this appeal even if the advocate thinks I'll lose. Like you said, it'll be a great learning experience for me. I'll wear my best Sunday-go-to-meetin' outfit.

[mmurra]

Larry,

My experience is that you must show cause to terminate and back it up with evidence. Can you prove that the employee was trained on the procedure / policy that the employee wash fired for? Do you hold staff meetings with notes/agenda? Do you have a policy manual that states clearly the policy that was violated? Do they sign an acknowledgement? What does the employee file look like?

The more you have in writing the better, but you can still build a verbal case if you have other employees who will testify that they were verbally trained. The responsibility to prove just cause termination is yours.

We try hard to follow procedures and have a signed statement in their file indicating that they have been trained on company policy. We document corrective action writeups in the file. We can show the UA judge that we run a "tight ship" and consistently apply the policies at the company.

With this type of presentation, we have not lost a case in over a decade in Michigan, a pro-labor state. Good luck!

Mark

[Adamski]

Mark,

Thanks for the tips. I'll be sure to take my SOP with me to the hearing even though I've already made copies of the pertinent policy pages. My challenge is to depict the employee's attitude toward her job and her resulting scheme to get fired so she could collect benefits. I must show the judge that her actions were designed to leave me no choice but to fire her.

[mmurra]

Larry - if you can win this one, you missed your calling!! Good luck! Mark

[rogergood]

In NY, I have appealed for employees who have quit voluntarily and would be welcomed back but who have filed for unemployment benefits. . NYS still says they are eligible for benefits. I think they want to give everyone benefits.

[Howard]

Its called income redistribution - share the wealth! This is what happens when you elect an illegal immigrant as president.

[DaveLevenson]

20 years ago, in NJ, I had an employee (not at my mat, but at another business) quit to take another job. He was laid off that job three months later. I offered him his old job back, but he declined the offer and submitted an unemployment claim.

My SUI account was charged for 3/4 of his benefits (the other employer for 1/4) based upon the number of months of the last 12 that he had worked for me, and the number that he had worked for the other employer. I attempted to appeal this with the NJ DOL and was advised that I had no basis on which to appeal. The law in this state is that after a lay-off, the employee is automatically entitled to UI, and all employers of the laid-off employee during the last 12 months of his employment share in the cost of his benefit, in proportion to their share of his employment during that period. His benefits were subsequently terminated when I reported that he had declined my job offer, but all of that took about 90 days, during which he received UI benefits. The benefits charged to my employer account during this period resulted in a small increase in my employer SUI contribution rate for the next 12 months.

Apparently, that law has not changed in the last 20 years.

[mmurra]

In Michigan, the employer who hired the employee away from the current employer assumes all liability for future unemployment. The employee must be hired directly away (no appreciable gap), and must notify the agency of the fact. We have had employees leave our employ and get laid off (fired?), soon after. Feels great to stick the new employer with their legitimate responsibility for the problem! Mark

[STOUT]

I find it interesting on how we always want to put the blame on the employee. Yes they do have their faults. However an even bigger area is the government itself.

A few years ago I and about 50 other employees were laid off as the company we were working for closed and relocated to another state. I was given the opportunity to go work for them in that adjoining state, which as I looked over the conditions it was not conducive to the life I wanted to live. I went on unemployment for several months as I tried to find something else. When I contacted the state office for unemployment, as this was my first time ever, I was told that I would receive only a % of what I had been earning. I was also told that I would only receive a certain amount for a certain amount of time. There were of course certain obligations I would have to do every week to receive the $ amount set aside for me. The company had been paying into the system for years for all of us. I asked if I could have the lump sum all at one time. I was told that if they did it would be spent in such a short time. I then told them "well then would not that be my problem then?" I assured them I could budget the full amount and make it last. It was still deigned. I asked them if I did not receive the full amount did my employer get a refund? Another negative response. So I asked what would happen to the $ if it was not all claimed? I was informed it would go back into the system and it would be kept with the government. "So in other words it would go for the Christmas party or the yearly bonuses". That did not go over well with them. But is is the truth.

I have a friend who worked for my states Work Force Services. He would receive quarterly and yearly bonuses depending on how the department was doing.

As owners we have to pay into the system in advance. We also have to pay into the system when someone puts in a claim, and again after they are reemployed or not, we still have to pay into the system as a penalty. And if the $ is not all claimed then we receive NO refund. It all gets absorbed into the system.

So we go with a vengeance after the x employee. Why not go after the real lazy theft?!

[Adamski]

Deward,

I don't know how it works in Utah but in Michigan, each employer funds his own unemployment account. When that account balance decreases due to former employees drawing on it, the employer's tax rate is increased to bring the account balance back up. If the account balance is all the way up to max, the employer pays no tax on his account.

The state also has a general account. All employers also pay into this account. Depending on circumstances, a laid off employee may draw from the employer's account or from the general account. This is determined by the state. All employers always have to pay into this general account even if their own account is maxed out.

[mmurra]

Mine (MIciigan UI tax), has been maxed out for years but I keep on paying! I believe it is about .05% of payroll with no claims history. I have no problem with paying the tax for the intended purpose, but so many claims are not a result of a layoff, but of poor employee behavior.

Larry, I have been waking up nights thinking about your claim. Give me some peace and let us know the outcome of the hearing ASAP! Mark

[Adamski]

...Larry, I have been waking up nights thinking about your claim. Give me some peace and let us know the outcome of the hearing ASAP! Mark

Mark,

The hearing has been rescheduled in the Grand Rapids office for August 2nd. I have prepared a 2 page outline for my Opening Remarks, Direct Examination of Witnesses, Rebuttal Argument and Closing Argument. I'm looking forward to playing Perry Mason and I'll let everyone know how it all goes down ... the good ... the bad ... and the ugly.

[mmurra]

Larry - if anyone can do it, you can! Good luck and let us know the outcome. Mark

[Adamski]

Guys,

My Re-determination Appeal hearing took place Aug 2nd. It was held in a room that looked like a small courtroom. It had a witness stand, the judge's bench, a plaintif table and a defense table. The hearing lasted about 75 minutes. At the start of the hearing, none of the Unemployment file or anything else had been seen by the judge.

I was the moving party so I was on the stand first. I was questioned about exactly why I fired the employee. During my testimony, some pictures of my laundromat and the letters I had previously written with reference to this case were admitted as evidence. The female employee was fired for failing to follow my verbal directive (via cell phone call) to rinse some liquid poop off an exterior sidewalk by throwing a bucket of hot water at it; calling the police and falsely claiming to them that I put the poop there for her to clean up; failing to call me when she decided that she didn't want to rinse the poop and picking up some of the liquid poop with a paper towel and rubbing it on the seat of my office chair. Whew!

The female employee took the stand next and was questioned about her actions that day. She admitted to not rinsing the poop, calling the police and using a paper towel to move some poop onto the seat of my office chair. Her written response to the Unemployment office was also admitted as evidence.

Interestingly, the Advocate who represented my employee is a customer of mine and she made a point of stating how exceptionally clean my laundromat is. However, she was making that point in an effort to bolster the employee's case.

I also had an Advocate who represented me. Michigan provides these Advocates free of charge to both parties. They are not necessarily lawyers but they act like lawyers and have training and experience in Unemployment Appeal hearings.

I had 2 rebuttel witnesses (male employees) who also took the stand and refuted specific statements made by my former employee.

Then the 2 Advocates made short, closing statements and it was over. Now we await a written decision from the judge who is called a "referee" but I think that term is totally misleading. He definitely acted like a judge when I was on the stand and raised my voice to say how juvenile her actions were when she put poop on my chair as I looked directly at her. That was my Perry Mason moment!

I'll get back to you guys when I get the decision.

[MrMachine]

Guys,

My Re-determination Appeal hearing took place Aug 2nd. It was held in a room that looked like a small courtroom. It had a witness stand, the judge's bench, a plaintif table and a defense table. The hearing lasted about 75 minutes. At the start of the hearing, none of the Unemployment file or anything else had been seen by the judge.

I was the moving party so I was on the stand first. I was questioned about exactly why I fired the employee. During my testimony, some pictures of my laundromat and the letters I had previously written with reference to this case were admitted as evidence. The female employee was fired for failing to follow my verbal directive (via cell phone call) to rinse some liquid poop off an exterior sidewalk by throwing a bucket of hot water at it; calling the police and falsely claiming to them that I put the poop there for her to clean up; failing to call me when she decided that she didn't want to rinse the poop and picking up some of the liquid poop with a paper towel and rubbing it on the seat of my office chair. Whew!

The female employee took the stand next and was questioned about her actions that day. She admitted to not rinsing the poop, calling the police and using a paper towel to move some poop onto the seat of my office chair. Her written response to the Unemployment office was also admitted as evidence.

Interestingly, the Advocate who represented my employee is a customer of mine and she made a point of stating how exceptionally clean my laundromat is. However, she was making that point in an effort to bolster the employee's case.

I also had an Advocate who represented me. Michigan provides these Advocates free of charge to both parties. They are not necessarily lawyers but they act like lawyers and have training and experience in Unemployment Appeal hearings.

I had 2 rebuttel witnesses (male employees) who also took the stand and refuted specific statements made by my former employee.

Then the 2 Advocates made short, closing statements and it was over. Now we await a written decision from the judge who is called a "referee" but I think that term is totally misleading. He definitely acted like a judge when I was on the stand and raised my voice to say how juvenile her actions were when she put poop on my chair as I looked directly at her. That was my Perry Mason moment!

I'll get back to you guys when I get the decision.

Larry,

So sorry to see you go through this. Some employees in our business are nuts. Hiring is good help is crucial, but so hard to do sometimes.
Good luck. I truly hope that you win.

[bodman]

I have two experiences for firing,The first was a maid that worked at a sororiety house which had closed for the summer ,she was hired to work one week for us to do summer closing cleaning of the house. after that week she filed and got unemployment some went against my account and most went against the sororiety just did not understand that, ,, second was for my employee destroying his home he was living in, ie. bleach on carpet, broke out windows, punched holes in ceiling and walls , broke doors off hinges. He was also sneaking off twice a week when he was supposed to be working and was getting laid not by his wife, third my wife saw him putting gas in his car while filling up my work van, with the same nozzle. I fired him mainly for the destruction of property, he was out of control I was sending him into homes to clean where woman were at home . I knew I would be held responsible for damages he might have done. According to the state of florida that was not a valid defense to which I replied I will rehire him back if the state would sign a document takeing on the responsibility of any future actions this lad may do while at work. that fell on deaf ears so I lost my temper and exclaimed that I was going to have my wife listed as the owner of our business and she was going to fire me so i could draw unemployment. COME to think of it I should do that now I could get 2 years of compensation. There is a plaan.

[James2011]

Larry,

I had a similar case this year and I appealed and I won!

I hope you will get "WIN".

[Adamski]

Guys,

I got the judge's decision in the mail just moments ago. He wrote 3 full pages that explain how he came to his decision. Here are some highlights:

FINDINGS OF FACT

"Claimant ... was responsible for maintaining cleanliness of the laundry machines. The events leading to claimant's discharge were the culmination of a growing tension between claimant and Larry Adamski.

"Claimant was counseled verbally several times for not maintaining the degree of cleanliness demanded by her employer. During one conversation, she called Mr Adamski "crazy". She also told him that if he gave her a raise, maybe she would have the incentive to do a better job. He responded that he could not afford to give her a raise; that maybe she should look for a higher paying job - and let him know if she found one.

"On April 13th, Mr Adamski noticed a pile of feces on the sidewalk ... outside. He says that he attempted to clean it up with a shovel but after he left, he concluded that he should have done something more. He called the claimant and asked her to throw a bucket of hot water on it to disperse the residue.

"Claimant says that the feces was still there, and she suspected Mr Adamski of placing it there, and then directing her to clean it up to harass her. During Mr Adamski's absence, claimant called the police to investigate.

"Both parties referenced video evidence on a security camera. He argued that it showed him cleaning it up; she claims it showed him depositing it. Neither party was allowed to testify to the contents of the video under the "best evidence rule" of MRE 1002.

"Claimant admits that she placed a pile of feces on Mr Adamski's office chair in retaliation. Claimant was fired the following morning.

ISSUES

"Whether claimant is disqualified for the receipt of benefits as a result of a discharge for misconduct connected with her work, pursuant to Section 29(1)(b) of the Michigan Employment Security Act.

REASONING AND CONCLUSION

"... the employer has the burden of proving disqualifying misconduct. In the instant matter (this case), the employer has sustained its burden of proof.

"I am pursuaded that claimant resented having to maintain the standard of cleanliness demanded by her employer. The source of the feces on the sidewalk ... is unknown. Claimant suspected Mr Adamski of having placed it there, but there is insufficient evidence to prove it. Claimant admits to placing feces on Mr Adamski's office chair. It was not done as an ill-conceived joke. It was placed there intentionally as retaliation. How someone would expect to keep their job after that surpasses my understanding.

"Based on the record established in this matter, and the applicable law, the employer has established disqualifying misconduct.

ORDER

"Claimant is disqualified under the misconduct provisions of Section 29(1)(b)."

[mmurra]

Larry - CONGRATULATIONS on your well earned victory. Thank you for putting yourself out there and telling all of the story. I now better understand the process for the next time I am in the same situation. I value this forum because operators are willing to tell the whole, shitty story with the goal of helping others.
Thanks again, Larry! Mark

PS) Curious Larry...how did you find out about the shit on the chair??

[Adamski]

PS) Curious Larry...how did you find out about the shit on the chair??

Mark,

Great question.

Normally, if I go into the office to view the cameras on the monitor; I sit down in the only chair in that very small office. However, on April 13th, I was so upset with the claimant and anxious to show her, on the monitor, that I was cleaning up the poop and not putting down the poop as she claimed. So, in my haste to cue up the appropriate scene, I didn't take the time to even pull out the chair from under the desk. Hence, I didn't even see the poop on the chair, let alone sit in it.

A few minutes later, I sent the claimant home. Shortly after that, I was going to sit down in the chair but I noticed the poop on it as soon as I pulled it out from under the desk. It was just a streak of poop (not a pile as the judge called it) so it didn't take much to clean up the chair. Fortunately, it was just enough poop to get her disqualified for unemployment benefits. Yaaaaahhhh!

[epic02]

PS) Curious Larry...how did you find out about the shit on the chair??

The smell was to bad to be his own gas

[James2011]

Larry,

I am glad you won...

[Howard]

Wow sometimes the system actually works. Good job Larry!

[BobbiOh]

How someone would expect to keep their job after that surpasses my understanding.

I love this statement....

[Adamski]

BobbiOh,

Yes, I loved that statement too. There is hope for employers after all.

[MrMachine]

Good for you Larry. You were innocent and had to go through this waste of time because of a paranoid, vengeful employee. What is our society coming to that people think they can do things like this?
I'm glad you won...not only for your sake, but for every employer's sake who has to fire a dishonest employee.

[James2011]

by the same token, america is the lawsuit country, anyone can sue any body,
some of them are intentionally bad lawsuit....
what a country!
just waste of time and money and mental stress...
but Good for attorney, bad for people...

[BobbiOh]

I do corporate travel management. The last two we've hired, we've fired. Both were still in the probation period and both claimed unjust firing. Neither could do the job. I found it odd that we had to go through hearings (granted they were on the phone) when our policy clearly states that during probation we don't need a reason and we have all the written documentation supporting the decision. That should be enough.

It's a waste of taxpayer dollars and a waste of our time.

[mjwalsh]

Congrats Larry!

I don't know if this is relevant but even though we have had 3 doggie poop dispensers since opening our self serve dog wash last November we have had only had one poop emergency. That was because the poor puppy must have had stomach diarrea issues possibly in need of a vet.

MJ

[Adamski]

Mike,

I suppose if I had a doggy wash in conjunction with my laundromat, I might expect a little poop on the sidewalk every now and then. But it is really rare to see dog poop on my premesis. I still think the complainant planted the poop there to stir up things and cause her firing. She admitted to transferring poop from the sidewalk to my office chair with a paper towel. Obviously, she's not above handling poop. So maybe she brought the poop from home and put it on the sidewalk when she opened the laundromat that day. Maybe she even added a little water to it to make it look extra messy.

[STOUT]

Larry;

What was this employee like when you interviewed her for the job to begin with?
Why did you hire her in the beginning anyway?
What caused her to turn to be a bad employee and how long did it take.

These are questions we all could learn from to help spot potential problems.

[James2011]

Larry;

What was this employee like when you interviewed her for the job to begin with?
Why did you hire her in the beginning anyway?
What caused her to turn to be a bad employee and how long did it take.

These are questions we all could learn from to help spot potential problems.

STOUT, you always ask questions???

[STOUT]

STOUT, you always ask questions???

What is the matter with this? You also like to know how to fix or run your business better!

Besides this question was directed to Larry for the good of all of us.

[Adamski]

Deward,

Actually, I went to all the trouble to type up a concise answer to your question and then I must have had a "senior moment" because I failed to actually post it. So let me try again now.

The Claimant is a 55 year old white woman who lost her husband about the time she began working for me. She has a degree in Business Administration. She agreed to work as an attendant for Michigan's Minimum Wage. Like most employees, she had strong areas and weak areas. I liked the fact that she was always willing to fill in on short notice when another employee was sick or something. I didn't like the way she would spend too much time talking to customers instead of cleaning.

It all came to a head on April 6th. Once again, I approached her and asked if she read my note about cleaning every washer after every use. She responded that she had and she would have more incentive to do a better job of cleaning if she was given a raise. I told her that I could not afford to give her a raise in this economy and if she needed more money, perhaps she should look for a higher-paying job and let me know when she finds one.

That day was a turning point because that's when she decided that she didn't want to work for me anymore. With her business background, she knew that if she simply quit, she would not qualify for unemployment benefits. So she began to develop a scheme to get me to fire her. Her scheme came together one week later on April 13th.

She opened the laundromat that morning at 8 AM. I believe (but have no proof) that she placed the poop on the sidewalk where I could not miss seeing it. It was placed in front and slightly to the right of the exact parking space where I normally park when I visit the laundromat. My parking lots total 33 parking spaces. I would have to walk right by it to get to our north entrance door. The poop was placed just prior to me arriving at the laundromat around 9 AM. I know this because the poop was still very liquid and hadn't had time to dry. In addition, she placed the poop there on a day when our Grounds Maintenance man is normally off. Therefore, that eliminated the chance that I might have him clean up the mess instead of the Claimant.

So you see, there is just a little too much coincidence with the poop. It appeared in a location where I couldn't possibly miss seeing it; at a time when I would soon be arriving and on a day when only I and the Claimant were working. She wanted me to instruct her to clean it up so she could begin her scheme to get fired by not cleaning it up and calling the cops and even smearing some on my office chair. Indeed, her scheme worked like a charm because I fired her at 8 AM the following day and she immediately filed for unemployment benefits.

So, if you're trying to decide who not to hire, maybe you want to skip over the person who seems to think too deeply and is not especially energetic.

[James2011]

What is the matter with this? You also like to know how to fix or run your business better!

Besides this question was directed to Larry for the good of all of us.

what I have seen about you so far, 99% of your posts begin with "QUESTIONS".
It's not bad, but not good, maybe your style to people, or way of approaching matters...

[STOUT]

Default A/C
deleted due to bad answers
__________________
Let's Work for the better future!!
Last edited by hithere; Today at 07:02 PM.


You should read your own posts then. Especially when you delete your own posts for "bad answers".
If the shoe fits wear it.

[Adamski]

Guys,

As you may recall, after losing the Determination and the Redetermination on a former employee's quest for Unemployment benefits; I finally achieved the denial of her benefits at a Referee Hearing. At that hearing, we both offered oral arguments and the case was decided in my favor a day later. Since then, she has not received any Unemployment benefits.

Now she is appealing to the Board of Review in an attempt to reverse the Referee's decision. As it turns out, the Board of Review almost never grants an opportunity for oral arguments. They do grant permission for written arguments if the side not requesting the written arguments either is represented or agrees to the offering of written argument by the other side. So, to prevent any written argument, I will not be represented and I will not agree to written arguments.

Without oral or written argument, the Board of Review will have no choice but to form their decision based on the transcript from the Referee Hearing. That being the case, I expect another win at the Board of Review level. If nothing else, it should make for some poopy (see this entire thread) discussion in Lansing.