Tuesday, May 31, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


Here is page 2 of Exhibit 6 - DOL's Application Claimant Information Screen. Note on the bottom that the claimant on the initial application stated that the reason for separation was "Lack of Work" while the employer is alleging "misconduct".

Monday, May 30, 2011

MEMORIAL DAY 2011

Sunday, May 29, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


Exhibit 6 is important to note for all claimants faced with hearings - it is the DOL's Application Claimant Information Screen. Here is page 1. Note all the information that is set forth on the "Screen", from date of birth to pay information.

Saturday, May 28, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


This is Exhibit 5, which is a memorandum by the ALJ of the events set forth at the July 9, 2010 hearing (the second hearing described in my post of April 11, 2011).

Friday, May 27, 2011

NEW YORK UNEMPLOYMENT AND FORECLOSURE - EHLP

Another reason why a claimant may want to attend the mortgage foreclosure clinics at the Nassau County Bar Association (or other bar association clinics) is to be educated about the following:

HUD Emergency Homeowners' Loan Program (EHLP):

"The EHLP is designed to provide mortgage payment relief to eligible homeowners experiencing a drop in income of at least 15% directly resulting from involuntary unemployment or underemployment due to adverse economic conditions and/or a medical emergency."

I am advised that New york was allocated approximately $112,000,000 under this.

Thursday, May 26, 2011

UNEMPLOYMENT AND FORECLOSURE - HAUP

Whenever a claimant contacts me regarding the litigation of their claim for benefits, one of the questions I ask them is if their home is at risk for foreclosure. I also suggest the mortgage foreclosure clinics at the Nassau County Bar Association. To be honest, very few are willing to attend the clinic at this early stage but it is important, at least with respect to HAUP:

"The Home Affordable Unemployment Program (UP) provides servicers with the flexibility to provide assistance to borrowers whose hardship is related to unemployment and is a supplemental program to the Home Affordable Modification Program (HAMP). Specifically, UP requires servicers to grant qualified unemployed borrowers a forbearance period during which a borrower's monthly mortgage payment may be reduced or suspended prior to considering such borrowers for HAMP."

Wednesday, May 25, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


This is page 2 of Exhibit 4, which is a memorandum by the ALJ of the events set forth at the October 5, 2010 hearing (the third hearing described in my post of April 26, 2011).

Tuesday, May 24, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


This is page 1 of Exhibit 4, which is a memorandum by the ALJ of the events set forth at the October 5, 2010 hearing (the third hearing described in my post of April 26, 2011).

Monday, May 23, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The documents attached to Exhibit 3 consisted of:

1. The initial Notice of Determination of March 2, 2009.

2. The Employer's Code of Conduct.

3. An acknowledgment signed by the claimant of the Employer's Code of Conduct.

4. A statement by the employer that the claimant was terminated for misconduct, viz:

A. Claimant "acknowledged that (claimant" 'messed' up."

B. "....falsification of company documents."

C. "Documents are shared with customers and this jeopardizes our credibility".

Saturday, May 21, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


Here is Exhibit 3. Now it appears that on April 1, 2009, the first service representative was applying to reopen the first default in March of 2009.

Thursday, May 19, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


Here is the first page of Exhibit 2 - a letter fated Fenruary 24, 2010 from the employer's first service representative requesting a re-opening of the first default on February 4, 2010.

Wednesday, May 18, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Thus, with respect to Exhibit 1, my objection to the application was based upon the fact that in April 2010, the new service representative notified the DOL that it was taking over all claims for the employer but did not notify the ALJ office until July 30, 2010. This failure to timely notify the ALJ, an office which is independant of the DOL, resulted in the claimant and myself attending a hearing on July 19, 2010 - at which the employer defaulted because the service representative never notified the ALJ office that it was taking over the case.

Tuesday, May 17, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Also relevant to my objection to the application is the following Appeal Board case:

"STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126 Albany NY 12212-5126
DECISION OF THE BOARD

Mailed and Filed: AUGUST 19, 2009

IN THE MATTER OF: Appeal Board No. 546037

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits. The employer requested a hearing and objected contending that the claimant and all other persons similarly situated were independent contractors. The Commissioner of Labor objected that the hearing request was not made within the time allowed by statute.The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was ta. There were appearances by the claimant and on behalf of the employer and the Commissioner of Labor. By decision filed April 2, 2009 (A.L.J. Case No.), the Administrative Law Judge sustained the Commissioner of Labor's timeliness objection, overruled the employer's objection, and continued in effect the initial determination.The employer appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the employer.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: In December 2007, the employer had moved from New York to Texas. The employer completed the move in June 2008. During that time, the employer maintained a post office box in New York for the receipt of business mail. Once per month, the employer would contact the store where the post office box was located to have the mail sent to the employer in Texas. A notice of determination holding that the claimant was an employee of the employer and holding the employer liable for contributions based on the earnings of the claimant and those similarly situated was mailed to the employer on April 10, 2008. The notice advised the employer that the employer had thirty days to ask for a hearing if the employer disagreed with the determination. The determination was delivered to the employer's post office box in New York State. On May 17 or May 18, 2008, the employer contacted the store where the New York post office box was maintained to have the employer's mail forwarded to her in Texas, and the employer received the determination on May 19, 2008. The employer first requested a hearing from the April 10 determination by letter faxed to the Department of Labor on May 21, 2008, on which the employer indicated that the employer's address had changed from New York to Texas. The employer did not inform the Department of Labor of the change of address from New York to Texas prior to May 21, 2008. The employer spoke with a Department of Labor employee on several occasions regarding the matter at hand. The procedure followed by the Department of Labor employee with whom the employer spoke was to notify employers that changes of address had to be in writing. The Department of Labor has no record of an address change by the employer prior to May 21, 2008.

OPINION: Pursuant to Labor Law § 620 (1) (a), a claimant who is dissatisfied with an initial determination of the claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The Referee (Administrative Law Judge) may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. The regulations of the Board, as amended, provide that a hearing request will be deemed to have been timely made if the request is postmarked within thirty days of the receipt of the determination. Absent any proof to the contrary, a determination shall be held to have been mailed on the date recited on the determination and received five business days after the mailing of the determination (12 NYCRR § 461.1). The credible evidence establishes that the determination was mailed to the employer on April 10, 2008 and the employer received it at the employer's post office box located in New York State. Pursuant to the amended regulations, the employer is deemed to have received the determination not later than five business days after April 10, 2008, or by April 17, 2008. The employer's hearing request was required to be postmarked not later than May 17, 2008, which is thirty days after April 17, 2008.In the case before the Board, the hearing request by the employer was made on May 21,2008, which is not within the 30 day period within which the hearing request was to be made. Accordingly, the employer's hearing request is not timely. The employer knew that she had to request a hearing within 30 days of the date the notice of determination was mailed. We reject the employer's contention that she notified the Department of Labor of her address change prior to the date that the determination was issued. We note that theemployer testified that she made the Department of Labor aware of the address change on the fax cover sheet included with her hand-written responses to the request for information, but the employer has not produced such fax cover sheet to substantiate her contention. In addition, the Department of Labor employee has no record of any such change of address prior to the employer's May 21, 2008 hearing request. Furthermore,although the employer claims to have also informed the Department of Labor by telephone of the address change, we accept as credible the testimony of the Department of Labor employee that the procedure she follows for all employers is to advise the employer that the change of address must be in writing. It is also significant that the employer continued to utilize the post office box in New York for receipt of mail. We therefore find that the employer did not notify the Department of Labor that the employer's address had changed prior to May 21, 2008. The employer did not take reasonable steps to ensure the prompt forwarding of mail from the employer's post office box in New York to the new address in Texas. Furthermore, the employer has not raised contention of an excusable office error which prevented her from making the hearing request in a timely manner. The employer's delay in making the hearing request is, therefore, not excused, and the employer is not entitled to a decision on the merits.

DECISION: The decision of the Administrative Law Judge is affirmed.The Commissioner of Labor's timeliness objection is sustained.The employer's objection, that the claimant and all other persons similarly situated were independent contractors, is overruled.The initial determination, holding the claimant eligible to receive benefits, is continued in effect."

Monday, May 16, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

My first objection to the employer's application to reopen was also based upon the following statute from the Labor Law and the evidence set forth in Exhibit 1:

"Sec. 620. Referees` hearings.

1. Disputed claims for benefits.

(a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.

Paragraph (a) as amended by L. 1959, Ch. 224, L. 1975, Ch. 82 effective October 1, 1975
and further amended by L. 1998, Ch. 589, effective April 1, 1999.

(b) When the initial determination of a claim for benefits, upon which a hearing has been requested, involves the question whether any person is or was an employer within the meaning of this article and is or was liable for the payment of contributions under this article, or the question whether an employer has fully complied with the obligations imposed by this article, written notice of the hearing shall be given to such persons or employer, either personally or by mail, and thereupon he shall be deemed a party to the proceeding, entitled to be heard. Upon such notice having been given, the referee may then decide such question or questions and any other issue related thereto, and his decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon him, subject, however, to the right to appeal hereinafter provided.

Paragraph (c) repealed by L. 1960, Ch. 787 effective April 25, 1960.

2. Contested determinations, rules, or orders. Any employer who claims to be aggrieved by the commissioner`s determination of the amount of its contributions or by any other rule or order of the commissioner under any provision of this article may apply to the commissioner for a hearing within thirty days after mailing or personal delivery of notice of such determination, rule, or order.

Subd. 2 as amended by L. 1991, Ch. 248, effective July 1, 1991.

3. Decisions. Every hearing as herein provided for shall be held by a referee who shall render his decision within five days after the hearing is concluded. Written notice of the referee`s decision, containing the reasons therefor, shall be promptly given to the claimant or employer, to the commissioner, and to any party affected thereby who appeared at the hearing.

The decision of a referee shall be deemed the decision of the appeal board from the date of the filing thereof in the department, unless an appeal is taken from such decision to the board in accordance with the provisions of this article or unless the board on its own motion or on application duly made to it modify or rescind such decision.

..............."

Sunday, May 15, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

My first objection to the employer's application to reopen was based upon the following Appeal Board Rule and the evidence set forth in Exhibit 1:

"Section 461.3. Notice of hearing.

..............

(b) In the event that an attorney at law, or a representative, appears at an administrative law judge hearing on behalf of a party or files with the administrative law judge section written notice that he appears for any person who is involved as a party in a case or proceeding pending before an administrative law judge, copies of all subsequent written communications or notices sent to such party therein (other than subpoenas) shall be sent, at the same time, to such attorney at law, or representative."

Thursday, May 12, 2011

NASSAU COUNTY COALITION AGAINST DOMESTIC VIOLENCE


There are, including myself, about 50 attorneys who do pro bono work for the Nassau County Coalition Against Domestic Violence and are being honored with a Pro Bono Attorney Recognition Luncheon where the Keynote Speaker is The Honorable Carolyn McCarthy, United States Congresswoman. It is being held on Friday, June 10, 2011, 12:00pm - 2:30pm, at The University Club, 225 Hofstra University, Hempstead, NY 11549

Wednesday, May 11, 2011

Tuesday, May 10, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


Now on this first page, I did not redact the first initial of the employer - K. Now note page 2 of Exhibit 1. The first inirial of the employer is E.

Monday, May 9, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


The hearing began with the introduction of Exhibits. Here is page 1 of Exhibit 1, the application to reopen from the employer's second service representative from July 30, 2010.

Saturday, May 7, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

At the outset of the hearing, the ALJ stated that the issue of the Application To Reopen the first two hearing would be considered. The third hearing, according to the ALJ, was not a default but an adjournment due to the fact that the notice of hearing for the third hearing was sent to the first service representative and not to the second service representative.

Friday, May 6, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

As noted in the Special Instructions, all issues were to be heard at the hearing. I instructed the claimant to meet me at 9am, bring all documentation that we had discussed, and November 29, 2010 the first day of hearing number 4 began.

Thursday, May 5, 2011

Tuesday, May 3, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4


The Notice of Hearing was mailed on November 23, 2010. Here is page 1 which now states the name of the new service representative.

Monday, May 2, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

A week before the hearing, the claimant had obtained new employment and so advised me.

But even though the claimant was no longer in need of benefits, the claimant must still proceed with the process of litigating the employer's objection - if the employer establishes that the claimant was not entitled to benefits and/or that wilful misrepresentations were made in seeking benefits, the DOL may seek repayment of the benefits already paid. Thus, even when a claimant no longer needs UI benefits, there is still a financial necessity to continue the process.

Sunday, May 1, 2011

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

On October 22, 2010, after consulting with the ALJ office, I advised the claimant that the next hearing - the 4th hearing date - was tentatively scheduled for November 23, 2010 at 10am.