Re-appeal after an employer no-show... chances?

In My Humble Opinion
1

Hello all,

This is sort of a follow-up to a message I posted on the General section a little while back, but I think it falls more in line with opinion than fact… so I posted it here.

Anyway… for a bit of background:

I had an unemployment appeal coming up last week and, though I believe my case was a strong one, the uncertainty of it all had me pretty wired up in knots.

The reason I know it was a strong case is because my employer pretty much shot themself in the foot by falsifying pay records and then “confirming” it in one of their statements to the unemployment officer when contesting the initial claim. I had the proof to show what they did to try and “cover their tracks”.

Besides that, there are several other pieces of evidence I had in my favor. So, I had a good feeling that, on the facts and evidence alone, a win was almost certain. Also, the employer’s various statements and what they claimed was all over the place. After looking over the info, even my attorney asked “so what exactly are they claiming here? You quit? They fired you?” For example, they put down “fired for violation of company policies” as their “reason” but then said in their statement that I quit voluntarily, etc. etc.

Still, there was that nagging uncertainty that something could go wrong… and pretty much my entire livelihood is hinging on receiving unemployment. So it was scary.

Long and short of it… I mailed my evidence to the employer and to the appeals officer as instructed. I received nothing from the employer (not surprising, they had nothing to send).

Lo and behold… The day of the appeal they never called in. This was obviously a huge sigh of relief for me.

However… and maybe this is just my sub-conscious messing with me - but I still have this feeling that my former boss might be “screwing with me”, or just stalling. Reason is… I found out they can still appeal the decision - even though they didn’t show for the appeal that they requested 2.5 months ago (it really seems like the state gives the employer every possible opportunity to reverse the decision; it’s ridiculous). They’d only have to have good reason for having missed the first one, but it seems like an acceptable excuse wouldn’t be difficult to conjure up… if that’s what they’re doing.

So… my question is… given that they (again, going on what I said) didn’t have a strong case in the first place, and that they didn’t show up at the appeal (which many people predicted, based on the evidence I had)… what do you think the odds would be of him appealing it again… just to be a pain in the ass… or to maybe try and stretch it out… perhaps to try and “bleed” me of some funds since he knows I’m paying an attorney, etc?

I know it sounds perhaps a bit paranoid… but I don’t know… knowing my former boss as I do, and as others have described him… he’s a bit like a spoiled kid when something don’t go his way. I could see him appealing it again just because he can’t accept that he lost and “didn’t get his way”.

So… thoughts?

2

Dunno what state you’re in. In my state, if it’s a termination case, the employer has the burden of proving misconduct by the employee. If he no shows, the ALJ will usually rule against him. The hearing can only be reopened for “good cause shown”, which is a higher standard than it might appear from the plain meaning of the words. “I forgot” is not good cause. Some sort of emergency supported by documentation is usually required. Failing that, either party can also appeal to the Board of Review. Here, the Board of Review mostly rubber stamps whatever the ALJ ruling was. From there, the losing party can appeal to an actual Court, but that court will only review the record from the administrative proceding to determine if the agency acted outside of its authority (ultra vires), or was arbitrary and capricious, or the decision was not supported by substantial evidence, or the agency violated some other constitutional or statuory right.

As to whether or not your guy is gonna pursue any sort of additional proceding–you know the guy, I don’t. It’s not terriby expensive to take it to the Board of Review, but it does require timely filing additional paperwork. Maybe the guy is willing to do it, maybe not.

3

In the meantime, they’re processing your unemployment, right? Did they say how long before it would come?

4

Been a part of two appeals processes here in Minnesota.

1> A guy who got fired during his probationary period for what amounted to a hit-and-run while driving for me. He appealed the initial decision and won, our employer appealed that and we (I was the star witness, being the only other person present during the accident) won that one. The guy basically had no case to contest his termination.

2> Fired, won unemployment, won the appeal on my own, which was not a hearing at that point, but merely a “show your work” administrative process. Employer didn’t appeal from that point, primarily I think because my proof of wrong doing was solid (audio recording of supervisor violating policy).

They can appeal and drag it out all they want, but at this point, provided what you say is true, they have no case and cannot hope to win. He can only spend money on an attorney just to spite you.

Frankly, I’d be more worried about what this clown is going to “off the record and unofficially, of course” tell your future potential employers if they call him.

5

My proof in this case is pretty solid as well; specifically, company pay stubs from two different pay checks, printed and mailed two weeks apart… but with the same pay period dates on them. It would look like he paid me twice for the same pay period, basically.

They also can’t try to claim misconduct because on their paperwork for the initial claim, they indicated that I’d never gotten any suspensions or warnings. That’s about the only honest thing they did in this entire ordeal.

They couldn’t even figure out what their claim was, as their story seemed to change from one statement to the next. I might have said this before, but even the attorney couldn’t figure out exactly what their claim was after reading all their statements.

Anyway… yeah… I’ve considered the “off the record” thing, too… I think he might have already done that with at least one potential employer, because it looked like I had a job in the bag and was expecting a call-back for a second interview, but it never came. Unfortunately, I can’t prove he’s doing that :-/. Gonna have to find a way to get around having him contacted as a reference.

6

I’ve been receiving benefits the whole time. I won the initial claim, and it was basically reaffirmed for the appeal since my former boss didn’t show up at the tribunal, so I won by default.

Now it’s just a question of whether he decides to try appealing it again… just to be a pain or what not. Common sense says he shouldn’t because he has nothing to gain from it.

Does it typically cost anything to file an appeal?

7

Either leave that job experience off your resume.

If that isn’t an option -

Provide someone else from the company as a reference. Just explain that “this supervisor is very familiar with your work…” or something like that…

8

Yeah, I may have to do that. My boss is a difficult guy to nail down, too, as he’s in and out of the office a lot, so it would be reasonable to suggest someone else. Hmm… just have to think of someone in that case.

Anyway… good feedback everyone. Thanks :slight_smile:

9

Well, just found out my former boss has re-appealed, claiming he never received the first appeal notice (which I’m sure is a crock), and so they’re re-opening a hearing.

Seriously… this has passed into the realm of the absurd now.

He didn’t have a strong argument the first time. He didn’t show for the first appeal that he requested, and had 2 months to prepare for… So now he’s doing it again.

I’m wondering if he’s just screwing with me at this point.

Does anyone know if, in TX, they can just continuously keep re-opening appeal hearings like that? Is there a limit, or can he just keep abusing it like that if he wants?

We’re going on 6 months since he let me go… and he’s still at it. Unbelievable.

10

IANAL, I have no experience in Texas law, etc. The following information may be totally wrong. However, it sounds like there are three levels of appeal:

It doesn’t specifically address what happens in the event that the employer fails to show up at a hearing, but I would bet my hat that your claim will be summarily approved if they fail to appear again.

11

Like most things it varies from state to state and the results vary from judge to judge. I worked in H/R for a company that ALWAYS appealed. It was a pain in the neck and I hated it. But we did win a lot, I felt we shouldn’t have.

In Illinois we could appeal decisions up to a year after, this was frustrating as people got their unemployment approved, spent the money and we appealed and won, then the ex-employees had the state demanding their money back.

At least in IL unemployment is so wonky, I’ve never understood the same situations are ruled in so many different way. Some arbitrators are more pro employee than others. A factor you have going for you is the high unemployment, which arbitrators tend to “overlook” things in times of high unemployment.

12

Well, I just read the letter they sent appealing to have the hearing re-opened. It’s funny, my boss added at the end that they “reiterate the fact that I quit voluntarily”. Trying to argue the case before the hearing. Too funny.

The fact is, I didn’t quit. The fact is, he let me go, and he knows it. I have a small book’s worth of proof that I was let go - including things that, to anyone with 2 working brain-cells, clearly shows him trying to cover up the fact that he let me go. He, on the other hand, has absolutely nothing to even begin to prove his case other than his say so.

Honestly, I don’t even know why he’s bothering to fight it at this point. I really think it’s his pride above all else; the man’s got an ego the size of Canada. And besides, I don’t think they have to pay anything to appeal, so it’s nothing but the time to type up and mail a letter. I only hope whatever the outcome of this “round”, that’s the end of it. I’d kinda like to get back to my life, ya know? I’d especially like to get a normal job again so I can forget about Unemployment and earn a normal living. Ugh.

Thanks for all the feedback, by the way :). It’s nice to have people to at least discuss this with.