UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I received a copy of the decision the next day. Although names are blocked out, notice that on this telephone hearing, taking 3 days over several months, besides the ALJ, were this many parties present:

1. The Claimant.

2. Myself representing the Claimant.

3. The Employer, consisting of two owners.

4. The first counsel to the Employer.

5. The second counsel to the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

On December 14, 2009, I received an email from the Claimant that the Appeals Board decided to allow the Employer's appeal. I did not receive a copy of the decision so I asked the Claimant the next day to email or fax me a copy of what the Appeals Board sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The last telephone hearing on the issue of the whether the Employer filed a timely notice of appeal was held on November 23, 2009. Present by telephone was the ALJ taking evidence on behalf of the Board, the Claimant, myself, the Employer (only one of the managers), the Employer's first counsel, the secretary to the Employer's first counsel and the Employer's second counsel. Testimony and cross-examination was this time given by the Employer's first counsel, the secretary to the Employer's first counsel and the Claimant and then the ALJ heard our final arguments. The ALJ also asked me to fax over some cases I referred to in my argument. The ALJ ended the hearing with a statement that the Board within a week would decide whether to accept the Employer's appeal or dismiss the Employer's case.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Throughout the months of October and November there were various scheduling problems for the 3rd telephone hearing: various notices were sent, similar to the one in the previous post, until it was finally settled that the last hearing would be on November 23, 2009.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At the September 21, 2009 hearing, it was agreed that the next scheduled hearing would be held on September 30, 2009 but I later received a phone call from the ALJ in Troy that the date was being adjourned. I also received a Notice of Adjourned Hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Although I personally felt that the evidence did not establish that the Notice of Appeal was timely sent, during the telephone hearing on September 21, the Employer's counsel offered to send an Affidavit of Service. I reserved the right to cross-examine regarding the Affidavit of Service at a further telephone hearing. Two days later, an Affidavit of Service dated September 21 2009 was faxed to me stating that the Notice of Appeal was timely served in April 2009.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At the next hearing by telephone on September 21, the Employers' counsel, now realizing he was a witness, brought in additional counsel to represent the Employers and a further examination on the issue of when the Notice To Appeal was mailed was held through examination and cross-examination. The position of the Employer was that it did send a timely Notice of Appeal but that for some reason the Appeals Board never received it.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

During the first hearing on the timeliness of the Employer's Request To Appeal, the Employers' Counsel testified and attempted to introduce documents which were not in my possession. It appeared to me that the Employers' Counsel was acting as witness and attorney - which raised issues under Rule 3.7 of the Rules of Professional Conduct. The hearing was short; it was agreed that the Employers' Counsel would fax me some documents, and the hearing was adjourned for 5 days.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first hearing on the timeliness of the Employer's Request To Appeal was conducted by telephone conference with an ALJ in Troy on September 16, 2009. Present by telephone was the Claimant and myself, the Employers and their attorney who filed the Request To Appeal.

HAPPY COLUMBUS DAY!

UNEMPLOYMENT INSURANCE

The importance of the decision below is that the rules regarding disqualification by voluntary separation are now the same as the rules regarding disqualification for misconduct with respect to the charging of the Employer's account and the Employer's right to object when the Claimant has earned more than five times his benefit in subsequent employment. In layman's terms: Claimant is discharged by Employer A for misconduct or voluntary separates from Employer without compelling reason and is not qualified for benefits. Claimant does not file for benefits. Claimant now is employed by Employer B and earns 5 times the benefit rate but is discharged/laid off by Employer B for non-disqualifying reasons. Claimant now files for benefits. Even though Claimant's base period includes wages earned by Employer A, Employer A cannot object to the benefits claim of Claimant.

UNEMPLOYMENT INSURANCE

Let me take a break about the saga of Case No. 2 by posting this decision which was handed down recently from the Appeals Board, which may be subject to appeal to the Appellate Division 3rd Department, but in any event is of importance. This was not a case I worked on but just a decision I was made aware of.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In September of 2009, I finally heard from the Appeals Board. On September 4, I received a Notice of Hearing in which they advised me that they were going to have a hearing on the timeliness of the Employer's appeal and that the hearing would be by telephone conference on September 16. I spoke with the Claimant regarding certain issues that would arise during the telephone hearing and prepared for the hearing. Unfortunately, I cannot find at this time a copy of the Notice of Hearing to post (so that one can see what it looks like) but I will post subsequent Notice of Hearings as there were several days of hearings on this issue.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The Claimant agreed to my representation on a fee basis(remember the Claimant was now receiving benefits as a result of the hearing and would continue to receive unless the decision was overruled)and I sent to the Appeals Board a letter objecting to the notice.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I of course reviewed the papers and then advised the Claimant that my pro bono representation, through the pro bono group, only applied to the hearing. Any future representation would be covered by the rules of the Appeals Board governing fees:

"Sec. 538. Representation and witness fees and other expenses.

1. Fees and compensation of representatives.

(a) No fee shall be charged in any proceeding under this article by the commissioner, by the appeal board or by any court.

(b) In any proceeding under this article a party may be represented by an agent, but no fees for services rendered by such agent shall be allowable unless such agent is registered with the appeal board or is an attorney.

(c) Claims of representatives for services rendered to a claimant in connection with any claim arising under this article shall not be enforceable unless approved by the appeal board and shall in no event exceed the benefit allowed, except as provided in paragraph (d) of this subdivision. In approving any fee requested by a representative pursuant to this section, the appeal board shall consider the following factors: (i) the total benefit allowed; (ii) the time spent in providing representation; (iii) the legal and factual complexities involved; and (iv) such other factors as the appeal board may deem relevant.

(d) In addition to any fee which may be allowed by the appeal board for services rendered to the claimant, an attorney representing a claimant shall be entitled to a fee not to exceed the sum of five hundred dollars and necessary printing and other disbursements in each of the following cases: (1) On an appeal from a decision of the appeal board in favor of the claimant. (2) On a motion for leave to appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. (3) On an appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. When a claimant takes such appeal, the court shall allow a fee and disbursements only if it finds the appeal to have been meritorious.

(e) The court shall appoint an attorney to represent the claimant if he is unrepresented in each of the cases described in paragraph (d) hereof, except when the claimant takes an appeal to the court of appeals. Fees and disbursements provided in such paragraph (d) shall be fixed by the court in which the appeal is taken or the motion for leave to appeal is made. Such fees and disbursements shall be paid by the commissioner as part of the expenses incurred in the administration of this article.

(f) Any person, firm, or corporation who shall exact or receive any remuneration or gratuity for any services rendered to or on behalf of a claimant except as allowed by this section and in an amount approved by the board or a court shall be guilty of a misdemeanor. The appeal board shall order the restitution of it exceeds the amount authorized by this section."

I also advised the Claimant of links to the Appeals Board website in order to assist the Claimant if the Claimant decided to oppose the appeal on a pro se (without representation) basis.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The final page of the attachment to the notice from the Appeals Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The second page of the attachment to the notice from the Appeals Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first page of the attachment to the notice from the Appeals Board.

TODAY...

....I'll be at the Levittown Chamber of Commerce annual Business to Community Expo offering exhibition opportunities to chamber members - in front of the Levittown Library.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the notice from the Appeals Board.