Wednesday, November 30, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Page 3 of the decision.

Tuesday, November 29, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Page 2 of the decision.

Sunday, November 27, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

The hearing then continued with my examination of the claimant and the claimant's testimony has to how the claimant was terminated (described in detail in the decision) and that the claimant did not quit. The ALJ also examined the claimant. The employer did not attend. The hearing lasted less than one hour and, after my closing argument, the ALJ advised that a decision would be issued.

Saturday, November 26, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

After submitting the Notice of Protest on March 21 that the claimant quit, the claimant completed a questionnaire online (Exhibit 3) stating that the claimant was fired but when the DOL attempted to interview the claimant on April 4, the DOL received no response (Exhibit 4). The DOL then interviewed the Employer by telephone (Exhibit 2) on May 17 and ostensibly based the adverse determination on that.

If there is a lesson to claimants in this, it is to always respond to DOL investigations and phone calls.

Friday, November 25, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7


In determining how this issue arose, it is important to note that when the claimant filed a claim for unemployment, an investigation by the DOL began with the employer submitting a Notice of Protest that the claimant quit.

Thursday, November 24, 2011

HAPPY THANKSGIVING

President Lincoln (a lawyer) declared Thanksgiving a national holiday in 1863.

Wednesday, November 23, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

The TCC 413 Summary of Interview with claimant was Exhibit 4 and it explains why the claimant was initially denied benefits by the DOL.

Sunday, November 20, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Exhibit 3 was Form T433.9, the questionnaire given by the DOL to a claimant whose claim is under investigation. In this case, the form was completed by the claimant on line.

Saturday, November 19, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Note that in Exhibit 2, among other things, the employer contended that:

1. The claimant resigned and that the employer implied that it had a copy of the recording on email.

2. The claimant wanted to get fired but resigned instead.

3. Continuing work was avilable to the claimant.

Thursday, November 17, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Exhibit 1 was the Application To Reopen Default decision, previously posted, and testimony was given by the claimant with respect to that issue. Then, testimony began on the issue of voluntary separation with the ALJ asking the claimant some preliminary questions.

Wednesday, November 16, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

My interpretation of Appeal Board decisions is that the claimant must establish by credible evidence that the claimant is entitled to benefits. Thus, even though the employer did not appear at the hearing, it was the claimant's duty to establish by credible evidence that the claimant did not voluntarily separate without good cause. The hearing began with the standard introductions as to how the hearing would proceed, the ALJ asked myself and the claimant if we were ready to proceed, we said yes, and the hearing began.

Tuesday, November 15, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

The claimant and I met before the hearing, re-prepared for testimony, evidence, etc. and then were called in. The employer did not appear.

Monday, November 14, 2011

MORTGAGE FORECLOSURE CLINIC FOR HOMEOWNERS



Today I will be a volunteer attorney at the Nassau County Bar Association Free Mortgage Foreclosure Clinic, described as follows from their website:

"FREE Mortgage Foreclosure Legal Consultation Clinics

Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

Sunday, November 13, 2011

Saturday, November 12, 2011

Friday, November 11, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

I also wrote the claimant as follows:

"We will meet at the hearing office an hour before the hearing. I have all the information I need for the hearing date - again, I feel this may take more than one hearing as I need to have the court subpoena certain documents."

If the employer was contesting this claim, I would need the ALJ to subpoena the following documents:

1. The alleged voicemail from claimant.

2. The alleged "final warning" the claimant stated was given to the claimant a week before the employment was terminated.

Thursday, November 10, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

When an application to reopen is made, there is an inherent time delay in scheduling because the claimant's files have to transfer from one ALJ office to another before a new hearing can be scheduled. The application to reopen was made on June 15. In August, I was able to schedule a new hearing for September 27, which was a date the claimant was available.

Wednesday, November 9, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Here is the application to reopen (the default decision was the 2 page attachment):

"June 15, 2011

VIA FAX– 3 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ XXXXXXXXX: IN RE: XXXX

Gentleman:

I am representing the claimant. On behalf of the claimant, the claimant hereby applies to reopen the attached decision.

The claimant defaulted due to the fact XXXX desired an attorney. After contacting me, I began to investigate XXXX claim and discovered that the Claimant has a meritorious claim. It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, XXXX was instructed to sign a letter that if XXXX did not make quota that week, it will result in termination. XXXXX did not make XXXX sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,


Jon M. Probstein

Cc: XXXX"

Sunday, November 6, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

The claimant sent me a copy of the default decision. It appeared that the ALJ recorded me as the attorney of record. Page 1 of the default decision.

Saturday, November 5, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

The remaining pages of my form retainer deal with the Appeal Bioard rules on fees and copies of the papers required by the Appeal Board for fees. The claimant signed the retainer agreement and the next step was to make an application to reopen.