UNEMPLOYMENT INSURANCE - MISCONDUCT - TIME RECORDS

Recently, I had a consultation with a Claimant where there was a disqualification due to false time records. Generally, the Appeals Board and the 3rd Department have been strict on this issue as demonstrated by IN RE DOWNING, 51 A.D.3d 1093, 858 N.Y.S.2d 403 [3d Dept 2008]

"Substantial evidence supports the Unemployment Insurance Appeal Board's decision that claimant, a speech therapist, lost her employment as a result of disqualifying misconduct. The failure to comply with an employer's established record-keeping policies and procedures can constitute disqualifying misconduct (see Matter of Fulcher [Commissioner of Labor], 32 AD3d 1064, 1064 [2006]; Matter of Adams [Commissioner of Labor], 6 AD3d 856, 856 [2004]). Here, although claimant was aware that the falsification of time records was prohibited by the employer and constituted grounds for termination, she submitted two time records that inaccurately represented the number of sessions that she had provided to clients. Significantly, claimant previously had been warned about inaccurate record keeping and was aware that any further violations of the employer's policies could result in her termination. Although claimant did not deny that the time records in question were inaccurate, she maintained that the inaccuracy was inadvertent and caused by stress in her personal life. This exculpatory explanation presented a credibility issue for the Board to resolve (see Matter of Adams [Commissioner of Labor], 6 AD3d at 856). Finally, because claimant indicated when applying for benefits that her employment had been terminated due to a lack of work when, in reality, she was fired, substantial evidence supports the Board's finding of a willful false statement (see Matter of Oberferst [Commissioner of Labor], 17 AD3d 902, 903 [2005])."

All the cases I have discovered have held that false time records were misconduct, even if it inly happened in one instance. Now I wonder how a decision would be reached if the evidence established that not only did the employee falsify time records, but that the employer did too in order to avoid paying overtime, reduce benefits, etc.

UNEMPLOYMENT INSURANCE - HEARINGS

A recent hearing (which has been adjourned for more witnesses) raised the issue of the credibility of the Claimant. The Claimant was denied benefits for misconduct and had requested a hearing but had defaulted at the hearing by not attending. The Claimant, after filing an application to reopen, consulted with me, and I represented the Claimant at the second hearing. The ALJ (Administrative Law Judge) first questioned the Claimant on the the circumstances of the Claimant's default on the first hearing and the Claimant answered that no notice was received by the Claimant because the Claimant had moved and never notified the DOL (Department of Labor) of the Claimant's change of address. Now this statement is from the DOL website:

"Q: What should I do if my address or telephone number changes?

A: If your address or phone number changes, it is your responsibility to update your contact information with the Department of Labor. Your benefits may be delayed if you fail to respond to documentation mailed to your address on record or fail to report to an appointment.

The easiest way to update your address and/or telephone number is on-line when you claim your weekly benefits. If you are no longer claiming benefits or need to change your address sooner, you may contact the Telephone Claims Center.

You must also contact Chase Customer Service at 1-877-221-1634 (if you have a Direct Payment Card) or your financial institution (if you are registered for Direct Deposit) to update your contact information."

I am hoping to avoid this argument by the Employer: "The Claimant's statements that the Employer's company policy was followed is not credible. If the Claimant was unable to follow the clearly written policy of the DOL regarding a change of address, then this demonstrates that the Claimant was unable to follow any policy, especially the Employer's company policy and thus was properly discharged for misconduct".

MORTGAGE FORECLOSURE - NASSAU COMMUNITY EVENT

Wednesday through Friday, April 28, 29 or 30, 2010, 1:00 p.m. – 7:30 p.m. each day Nassau Veterans Memorial Coliseum, 1255 Hempstead Turnpike, Uniondale, NY 11553 Get Free Help to Save Your Home. Don’t miss this free opportunity to meet one-on-one with your mortgage lender or a HUD-approved housing counselor. Find out if you qualify for the Obama Administration’s Making Home Affordable Program or other options from your lender. For more information:
• Call the Homeowner’s HOPEtm Hotline at 1-888-995-HOPE (4673)
• Visit MakingHomeAffordable.gov or HopeNow.com
• To get tips to avoid scams, visit LoanScamAlert.org. Help is free!
I will be attending Friday at 5:30-7:30 on behalf of the Nassau County Bar Association.

MORTGAGE FORECLOSURE SETTLEMENT CONFERENCE - NASSAU SUPREME COURT

A view observations from being a Volunteer Lawyer yesterday for Mandatory Settlement Conferences at Nassau Supreme Court:

1. The calendar call was about 70. Again, I would "estimate" that about 10-15% of homeowners attended, with or without attorneys.

2. The clerks are not regularly announcing that volunteer lawyers are available. We are located in the back of the court room at the large table.

3. This is the second time that I did not see a certified housing counselor at the conference.

4. Again, most of the homeowners who sought a volunteer lawyer did not use a certified housing counselor.

5. Several of the homeowners were in foreclosure due to their matrimonial disputes. The foreclosure process cannot be resolved properly if the financial issues of the divorce are unresolved. Only one matrimonial lawyer showed up for his client at the settlement conference, the rest either sent their clients on their own or were not made aware of the foreclosure. It is my opinion that if you are in a pending divorce and in foreclosure, your matrimonial lawyer must also participate in the foreclosure process or retain counsel to assist him or her in the foreclosure, especially if the marital home is the primary asset and/or debt.

MORTGAGE FORECLOSURE SETTLEMENT CONFERENCE - NASSAU SUPREME COURT

Today, I will be a Volunteer Lawyer at Nassau Supreme Court for Mandatory Settlement Conferences through the Nassau County Bar Association and will report tomorrow on my experiences. I do encourage all who have the conferences to take the time to bring the documents required on the notice, and, to if you do not have them, go to the county clerk's office and obtain a copy of all the court papers so the attorney knows whether service was proper, any possible defenses, at what stage the case is, etc. If we do not have all the information, we cannot fully advise.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Back to more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Do you provide or recommend an attorney?

No. You have to contact an attorney on your own but the Board keeps a list of attorneys and other persons or organizations that represent claimants. The attorneys and representatives on the list can charge you a fee in an amount approved by the Board only if you are successful in the hearing and any appeal. The list also includes organizations that provide legal services for free."

I will not comment on whether one attorney, service representative or organization is better than another. But I do strongly urge Claimants to seek an attorney early. Try to consult with one if your claim is being investigated....as the answers you give to the DOL will be used at your hearing, especially on issues of credibility. (if you said something once and then change your story, it goes to the issue of credibility). If you get a Notice of Adverse Determination, retain an attorney. If you receive a Notice of Protest from your Employer, retain an attorney. Don't wait until the last minute. I have had consultations where Claimants have literally "dug themselves a hole" and then starting seeking an attorney a day or so before the hearing.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Back to more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Do I need an attorney?

No, but you have the right to be represented by an attorney or representative of your choice. An attorney or representative of a claimant cannot charge a fee unless the claimant is successful and the amount of the fee has been approved by the Appeal Board."

In these economic times, sometimes your situation will prohibit you from retaining an attorney but you should have one. The problem of course is that few deal in this area because attorneys can only collect a fee if successful and then only in an amount approved by the Appeals Board. Usually, the amounts approved by the Appeal Board (which can take several months) do not equal the usual attorney rate...in other words, many of these cases are not financially feasible for attorneys. Plus, there is the problem of collecting fees....the client is on unemployment: it is difficult for them to afford to pay the attorney the approved fee.

But assuming the Claimant is successful in obtaining an attorney and the attorney is confident that the Claimant will pay the approved fee, I highly recommend retaining counsel for many reasons some of which I will mention here:

1. An attorney (and I am assuming it is one familiar with these issues) can properly prepare you. Much preparation is needed, questions asked, documents sought, etc. and an attorney can properly evaluate your case.

2. Although the Administrative Law Judge is independent and impartial, does not represent either the DOL, the Employer or the Claimant, and will ask probing questions, there may be information missed that your attorney can bring out.

3. A hearing can be intimidating, especially if the DOL is also objecting to your request - under those circumstances, it is the Claimant versus the tag team of the DOL and Employer.

4. Your case may involve other issues, discrimination rights, union rights, breach of contract rights, and an attorney can advise you of them.

Now I have consulted with Claimants and they have successfully been able to win at their hearings without my direct representation. But For all the reasons listed above, and for more not mentioned here, my answer to the question "Do You Need An Attorney" - well it couldn't hurt to speak to one (just remember the rules on fees though and if you know of an attorney who is violating those rules, notify the Appeals Board)

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

And now it is back to more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"When will the hearing take place?

In most cases, a hearing will be scheduled after the hearing office receives the request. You will be notified by mail of the exact date, time and location of the hearing before the day of the hearing."

It can take time as some hearing offices are overburdened with hearings. What compounds the problem is that Claimants request hearings and don't show up, Employers request hearings and don't show up (plus they still have the right to reopen their request if they apply within a reasonable time and have a reasonable excuse). Some get adjourned at the last minute. There are so many judges and so many time slots (usually a hearing is scheduled in one hour time slots). So it takes time to have a hearing - weeks, maybe months. In addition, a hearing may take several days and after the first day of hearing, the next one is usually not scheduled for 3-4 weeks. I can only make this statement with absolute certainty: if you are a Claimant and have been denied benefits, a request for hearing will not bring you immediate relief...it is a process. And if you want representation, as soon as you receive your adverse determination (you have 30 days from mailing to make your hearing request), contact an attorney. These cases need to be prepared properly and many times I will receive a call to the effect "I have a hearing in 2 days, can you represent me?" Since I do not take on a matter until I have it investigated and researched myself, in those situations, the hearing is delayed even further.

UNEMPLOYMENT INSURANCE HEARINGS - MISCONDUCT

Today I have a hearing. Claimant has been granted benefits but Employer insists Claimant was discharged due to misconduct. Employer has requested a hearing. What are the general rules regarding "misconduct". This is from the Appeals Board website:

"A. Misconduct

Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail)

The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated.

Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion.

On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness.

B. Criminal acts

In addition to the above disqualification, Section 593.4 of the Law provides:

Criminal acts. No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, provided the claimant is duly convicted thereof or has signed a statement admitting that he or she has committed such an act. Determinations regarding a benefit claim may be reviewed at any time. Any benefits paid to a claimant prior to a determination that the claimant has lost employment as a result of such act shall not be considered to have been accepted by the claimant in good faith. In addition, remuneration paid to the claimant by the affected employer prior to the claimant's loss of employment due to such criminal act may not be utilized for the purpose of establishing entitlement to a subsequent, valid original claim. The provisions of this subdivision shall apply even if the employment lost as a result of such act is not the claimant`s last employment prior to the filing of his or her claim."

ATTORNEY CLIENT PRIVILEGE

The following is from an email I received from the Law Firm of Moses and Singer LLP and it highlights an important issue:

"Lawyer’s Failure to Maintain License Triggers Battle Over Attorney-Client Privilege

Currently pending in the Southern District of New York is the question whether client communications with an inactive bar member are protected by the attorney-client privilege. This issue stems from a 2009 trademark infringement suit filed by design house Gucci America, Inc. ("Gucci") against apparel designer Guess?, Inc. ("Guess").[Gucci America, Inc. v. Guess?, Inc., et al., No. 09-Civ-04373 (S.D.N.Y. 2009)] Unbeknownst to Gucci and to its astonishment, outside counsel for Guess recently discovered that Gucci’s chief in-house lawyer was not properly licensed to practice law. Guess petitioned the Court for access to Gucci’s communications with its in-house counsel on the grounds that they were not protected by the attorney-client privilege. In response, Gucci’s outside counsel filed a motion for a protective order against disclosure of privileged communications.

Don’t Ask Don’t Tell?

Gucci’s top lawyer served the luxury goods maker as counsel from 2003 to March 2010. Following his graduation from Fordham University Law School, he passed the California bar examination, and was admitted to the California Bar in 1993. However, three years later, he voluntarily elected to change his bar status from "active" to "inactive". When Gucci initially employed him in 2002, it did not inquire as to his legal qualifications because he was hired primarily to perform non-legal work. According to Gucci’s memorandum of law in support of its motion to protect the privilege, during the period he was employed as a non-lawyer, he consistently held himself out to Gucci personnel and management as a lawyer authorized to practice law. He represented Gucci in legal proceedings, filed documents with the U.S. Trademark Office and worked on matters with outside counsel.

Consequently, Gucci did not investigate the lawyer's bar status when it gave him the title of in-house counsel in 2003, or when it promoted him to director of legal services in 2005, or even when it appointed him vice-president and director of legal and real estate in 2008. He never informed anyone at Gucci regarding his inactive bar status, either during the hiring process or in the course of his employment. No one at Gucci ever asked him about his bar status or investigated it. When Gucci ultimately learned from opposing counsel that his inactive status spanned the length of his employment, Gucci placed the lawyer on administrative leave in January 2010, and after an internal investigation, terminated him for cause on March 1, 2010.


Privilege: Lost or Preserved?

Guess alleges that because the lawyer was not an active member of any bar during the period of his employment as Gucci’s legal counsel, he was not an attorney authorized to practice law, and therefore Gucci should not be permitted to invoke the attorney-client privilege. Gucci has set forth two counter-arguments:

First, Gucci asserts that since the lawyer was at all times a member of the California bar, albeit an inactive member (a status he could have changed to active at any time by the ministerial act of paying a larger annual fee), the standard set forth by the U.S. District Court for the Southern District of New York – the attorney-client privilege applies if the person to whom communication is made "is a member of the bar of a court" – is satisfied. According to Gucci’s memorandum of law, under California law, "inactive" members of the California bar are still bar members. In fact, the lawyer remains an active member of the bars of the U.S. District Courts for the Southern and Central Districts of California since 1994.

Second, Gucci argues in the alternative that its "reasonable belief" that the person was an attorney when it communicated with him for the purpose of seeking legal advice, is sufficient to preserve the privilege, even if he is found not to have been a member of the bar.

The law in New York is not settled on this question. In 2000, the Southern District of New York concluded that even if New York law would apply the "reasonable belief" exception to individual clients, corporate clients should have to make sure their attorneys are in fact attorneys. It explained that "while an investigation of this magnitude...could prove onerous for an individual seeking legal advice, it is not unduly burdensome for a corporation, familiar with these types of employment practices, to conduct investigations to determine whether a potential employee's credentials are commensurate with the corporation's needs. It is not unduly burdensome to require a corporation to determine whether their general counsel, or other individuals in their employ, are licensed to perform the functions for which they have been hired."

No In-House Counsel Exception

Unlike many other states, New York does not have multi-jurisdictional practice rules which would generally permit licensed out-of-state lawyers to provide legal services to their corporate employers in New York. Nor does New York have a court-adopted "in-house counsel registration" rule similar to many other states, which would have authorized licensed out-of-state lawyers who satisfy certain registration requirements, to practice law in this state.

Best Practices

Law firms, corporate legal departments and other private or governmental organizations that hire lawyers should investigate a prospective lawyer's legal qualifications and licensing status in the relevant jurisdictions in advance of extending an offer of employment. It is good practice to periodically run an updated check to make sure there are no lingering licensing issues. In New York, an attorney’s registration status can easily be tracked online via the Office of Court Administration’s website:

http://iapps.courts.state.ny.us/attorney/AttorneySearch

The lesson from Gucci America, Inc. v. Guess? is that not being properly licensed is an unacceptable risk that no client or employer should accept."

I would also add that in addition to licensing issues, verify that your attorney carries malpractice insurance and is a member of at least one bar association. Attorneys who practice in certain fields, such as Elder Law, should be certified as such.

MORTGAGE FORECLOSURE SETTLEMENT CONFERENCE - NASSAU SUPREME COURT

A view observations from being a Volunteer Lawyer yesterday for Mandatory Settlement Conferences at Nassau Supreme Court:

1. The calendar call was about 70. I would "estimate" that about 10-15% of homeowners attended, with or without attorneys.

2. Most of the homeowners who sought a volunteer lawyer did not use a certified housing counselor. One consultation stated that they did seek a housing counselor but the counselor said they were better on their own....in so far as I did not speak to the housing counselor, I do not know their side of the story.

3. One had an attorney earlier but could no longer afford one.

4. Some were very much underwater. In one case, the homeowner's total debt was 200% of the home's value.

5. This is something I hear in Landlord/Tenant court and is something I will try to address in a late blog - many wanted to stay until their child finished the school year or a certain school level.

MORTGAGE FORECLOSURE SETTLEMENT CONFERENCE - NASSAU SUPREME COURT

Today, I will be a Volunteer Lawyer at Nassau Supreme Court for Mandatory Settlement Conferences through the Nassau County Bar Association. I am sure that one thing that will be requested by homeowners this time will be mortgage principal reductions but to present another side of this is the following article:

"On March 26, 2010 the Obama Administration announced major revisions to the Making Home Affordable Program. One of these deals with writing down the amount that people facing foreclosure owe on their loans.

As the foreclosure crisis has continued, property values have dropped in many areas of the United States. One problem that exists is many people owe far more on their loans than their homes currently are worth.

In situations like this some people facing foreclosure are not motivated to try to save their homes. They feel that they will never be able to recover what they pay for their home. So they walk away and let their mortgage company foreclose.

Members of congress and various consumer advocacy groups in the past had been unsuccessful in their attempts to get mortgage companies to lower the balance owed on these loans to an amount closer to the value of the home. The thinking here was that if this were done, the people would be more motivated to try to save their homes.

The revision to the Making Home Affordable Program announced on March 26 requires mortgage companies to consider writing down the principal balance for certain people who have applied for loan modifications. This is supposed to be done if the balance owed on a loan is greater than 115% of the current value of the home.

Say the value of a home is $100,000. The amount currently owed is $130,000. The mortgage company is being urged to reduce this to $115,000.

The mortgage company would run a New Present Value Test. As long as that indicated it was worthwhile to reduce the balance of the loan, the company is supposed to do so.

The mortgage company would initially put the amount to be reduced into a separate forbearance account. As long as the person remains current on their loan payments, the mortgage company will forgive the amount reduced in 3 equal payments over 3 years.

Let's look at our example above. The mortgage company would reduce the amount owed by $15,000 from $130,000 to $115,000. As long as the payments were made on time, the mortgage company would forgive $5,000 a year. The entire $15,000 would be forgiven at the end of the third year.

Those people who have already received a permanent loan modification or are currently in a trial loan modification period will be considered for a principal write down like this as long as they are still current on their monthly payments. Mortgage companies probably won't be able to get to these cases until later in 2010.

The Obama Administration is giving mortgage companies an incentive for doing this. They will pay them $.15 on the dollar for the amount that they reduce the loan by if the balance on the loan is from 115% to 140% of the value of the home. If the balance of the loan is greater than 140% of the balance of the home, they will pay the mortgage company $.10 on the dollar for the amount reduced.

If the balance of the loan is less than 115% of the value of the home, The Obama Administration is giving the mortgage company an added incentive. They will pay them $.21 on the dollar for the amount reduced.

Going back to our example, the loan balance of $130,000 is 130% of the value of the home ($100,000). The amount that the balance is reduced is $15,000. So the mortgage company would be paid $2,250 (15,000 X $.15).

If you are facing foreclosure, you may be thinking that this is great. The balance on your mortgage is far higher than what your home is worth. So your mortgage company is going to reduce it to 115% of the value.

Well there are certain problems which will arise. These were not addressed in the revisions announced on March 26.

The first is that this is voluntary for the mortgage companies. What happens if some elect not to do this?

The second is that there is no time limit for the mortgage companies to put this in place. Are the mortgage companies going to delay implementing this? Will we see the same type of delays that have plagued the Making Home Affordable Program from the start?

The third is that the mortgage company or investor will contact those people who are eligible for this. Do you know who the investor on your mortgage is? Not many people do. By the way, the mortgage company to whom you are sending your monthly payments is normally not the investor.

How will your mortgage company or investor determine who actually qualifies for this? Will anyone monitor them to make sure this is done fairly? What if some mortgage companies do this quickly and others drag their feet?

Fourth - What happens in those instances where there are two loans? It looks like the administration assumed that most people who have a first and second loan got these through the same mortgage company. So the balance on the second loan will be reduced first. If the remaining balance is still over 115%, the balance on the first loan is reduced.

The guidelines indicate that a mortgage company that has to reduce the balance on a second lien to bring the total down to 115% will be paid $.06 on the dollar for the amount reduced. This payment will only be made if the person had not made a payment on that second loan in more than 6 months.

Let's look at the example we have been using. The balance on both loans totals $130,000. The balance on the first mortgage is $109,000. The balance on the second is $21,000. The value of the home again is $100,000.

115% of $100,000 is $115,000. The balance on the second loan would be reduced to $6,000. The balance of $109,000 on the first loan would remain unchanged.

If there was a different mortgage company for the second loan, they are being asked to forgive $15,000 of their loan. For that the government may pay them $900 ($15,000X$.06). They will get that only if the person facing foreclosure has not made a payment on that loan in the last 6 months.

So the mortgage company here can possibly get $900 at the most while in those instances there is only one loan, the mortgage company there would get $2,250 regardless of when the last payment on that loan was made.

Is there anything wrong with that picture?

It sure looks like the mortgage company handling the second loan is getting the shaft. Do you think that most mortgage companies on these second loans are going to willingly participate in this program?

Current estimates are that in about 50% of the cases where people are facing foreclosure first and second loans exist. It is not clear on how many of these two different mortgage companies are involved. Chances are the percentage is high.

One other big challenge exists for mortgage companies when it comes to reducing the principal balances on loans. If they start doing this for people facing foreclosure, won't the people who have made their loan payments on time and are not facing foreclosure complain? Won't they demand that the balance on their loans be reduced if the value on of their homes has dropped?

When the Obama Administration announced the revisions to the Making Home Affordable Program on March 26, the news media focused on this one. Their stories just focused on mortgage companies reducing the principal balances on those loans of people facing foreclosure whose properties had dropped in value. They did not go into detail on the guidelines for the revision.

People facing foreclosure who are in this situation had their hopes raised that their mortgage companies would be reducing how much they owed on their loans. Many will be disappointed if the problems I mention here occur prevent this from being done.

It looks like the Obama Administration has opened itself up to much additional criticism because the guidelines for this revision to the Making Home Affordable Program were not well thought out.

As a real estate investor since the 1980's Mark Elkins has seen the devastating impact foreclosure has had on common ordinary people. This has led him to study and gain much knowledge and insight into how to help people in foreclosure to take the offensive, reverse the process, save their home and minimize their losses. Please visit his website, http://www.stopforeclosureanswer.com. Please check out his blog at http://www.stopforeclosureanswer.com/stopforeclosure.

Article Source: http://EzineArticles.com/?expert=Mark_Elkins"

MORTGAGE FORECLOSURE CLINIC - NCBA

This Monday, I will be a Volunteer Lawyer at Nassau Supreme Court for Mandatory Settlement Conferences through the Nassau County Bar Association. This is from their website:

"In an effort to continue to expand our mortgage foreclosure legal services and help meet the growing needs in the community, Attorney Gale D. Berg of Port Washington has been named the Director of Pro Bono Attorney Activities at the Nassau County Bar Association. In this new part-time position, which was funded by a grant from the Office of Court Administration, Berg will focus on NCBA’s extraordinary pro bono, or free, efforts to help residents facing mortgage foreclosure issues. She will oversee the NCBA’s award-winning Mortgage Foreclosure Legal Consultation Clinics, and will also work closely with the Courts to provide pro bono legal representation for homeowners at court mandated mortgage foreclosure settlement conferences. Berg remains as the chair of the Community Relations and Public Education Committee and on the board of the Nassau Academy of Law. She has stepped down from her position as a Director on the NCBA Board of Directors to accept this position."

ELDER ABUSE - SEMINAR AT NCBA

From the Nassau County Bar Association:

"On Thursday May 6, 2010, Nassau County District Attorney Kathleen Rice will take aim at elder abuse at a forum hosted by The Long Island Alzheimer’s Foundation and NCBA. She will join with a panel of attorneys to address the emotional, physical, legal and financial ramifications of this growing epidemic, and offer solutions to real life situations. The panel includes Deirdre Lok, Esq., of the Harry & Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale, and Joan Sculli, an advocate for domestic violence services, as well as members of Long Island Alzheimer’s Foundation’s Legal Advisory Board. Attendees will be able to address the panel with questions regarding case studies or with related procedural questions. The forum will be held 12-2 p.m. at NCBA’s headquarters. Reservations are $25 and may be mailed to LIAF at 5 Channel Drive, Port Washington, NY 11050 or call Nicole at 516-767-6856."

UNEMPLOYMENT INSURANCE - PRESUMPTION OF MAILING

I had a Unemployment Hearing appeal last summer/fall 2009 where the issue was whether a notice of appeal, sent by the Employer, was timely sent. The Appeals Board never received it and a hearing that lasted several phones by telephone took place. This case may have been discussed in an earlier blog (although I argued there was a presumption of mailing and the Employer could not refute it with actual time and mailing records, the Employer prevailed with the Appeals Board by presenting an affidavit of service - and then the Employer, after reviewing the hearing transcript, withdrew it's appeal). In doing some research on another matter, today I found the following on the presumption of mailing which was decided after the hearing I had - I note the portion which I emphasize in italics:

"EXPRESSWAY VIL., INC. v. DENMAN, 2009 NY Slip Op 29518 (Niagara County Court.
Decided December 23, 2009)

The appellant is represented by counsel, who properly filed the notice of appeal, perfected that appeal, submitted the Record on Appeal and tendered his written appellate brief. As a result, this Court opened an appeal file and sent its customary initial letter to the appellee advising her of the procedures and time deadlines involved. That letter, mailed on September 16, 2009, went to "Shirley Denman, Lot No. 44, Expressway Village, 2740 Service Road, Niagara Falls, NY 14304," the last address noted in the court's file. Sent by ordinary mail, it creates a legal presumption of receipt, since it was never returned to the court as undeliverable. (See Spangenberg v. Chaloupka, 229 AD2d 482, 645 NYS2d 514 [2nd Dept 1996].)"

LANDLORD & TENANT COURT - NASSAU COUNTY

Yesterday I was a Volunteer Lawyer at Landlord/Tenant Court in Nassau and here are just a few recommendations to those tenants faced with a summary proceeding, whether a non-payment or a holdover:

1. Once you receive papers, go to the court and check the file, especially the affidavit of service. If you have documents showing that the affidavit is incorrect: i.e. someone was home when they claimed to have attempted to serve you, bring that documentation or other evidence with you.

2. Bring a copy of your written lease.

3. Bring all your rent receipts or cancelled checks, etc. If your landlord refuses to give you a cash receipt, give him a postal order. If your landlord refuses that, you have a troublesome landlord and keep a diary and other documentation i.e. bank withdrawals of rent amount.

4. If you are claiming the premises are inhabitable, bring the proof. First, whenever things go bad and your landlord refuses to repair, contact the Department of Buildings for an inspection. Bring pictures of damages, etc.

An attorney can only defend you if you supply him with evidence of your defenses. Your testimony alone may not be sufficient. For more information on tenants' rights and defenses, go to www.tenant.net

LANDLORD & TENANT COURT

Today I will be a Volunteer Lawyer at Landlord & Tenant Court in Nassau. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. Today, I am a Volunteer Lawyer as part of the Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

FREE MORTGAGE FORECLOSURE CLINIC - NASSAU COUNTY

This is not meant as a scientific survey but, as I counseled several people at yesterday's foreclosure clinic, I noticed the following:

1. Less people attended than in the past. This may be because of the hours of the clinic (3-6) which interferes with people's work schedule, the fact that the Nassau Supreme Court, in conjunction with the NCBA, had already held clinics earlier this year for all homeowners that were in foreclosure, or for some other reasons not clear to me.

2. The people I counseled who were facing foreclosure due to any one or more of the following reasons:

a. Unemployment.
b. Excessive medical expenses.
c. Death in the family.
d. Excessive credit card debt.
e. Marital issues.
f. Alcohol, drug, etc. issues.
g. Other family discord.

3. Most were interested in saving their homes, even though most of the homes had a value less than the mortgage ("underwater").

Again, just observations.

FREE MORTGAGE FORECLOSURE CLINIC TODAY - NASSAU COUNTY

Today, 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 (including myself) 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. The clinic hours are 3pm to 6pm. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Where is the hearing?

The hearing will be scheduled at the office closest to the party who asked for the hearing. Read the Notice of Hearing to find out the location of the hearing. If a party is too far away to reasonably travel to the hearing site, that party may be allowed to participate by telephone but that request should be made before the hearing date."

My practice is in Nassau County and I only do hearings at the Garden City office. Sometimes, depending on who is requesting the hearing, arrangements can be made to have the hearing at a specific location and, if the Claimant is requesting the hearing, the Claimant should specify the preferred location. Again, I do not recommend telephone hearings for Claimants who have been denied benefits unless there is clear and complete documentary proof, beyond a reasonable doubt, that the Claimant is entitled to benefits. However, if a Claimant has a material witness who cannot attend, that witness may be able to offer testimony by telephone.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Where is the hearing?

The hearing will be scheduled at the office closest to the party who asked for the hearing. Read the Notice of Hearing to find out the location of the hearing. If a party is too far away to reasonably travel to the hearing site, that party may be allowed to participate by telephone but that request should be made before the hearing date."

I represent Claimants exclusively at the Garden City office. Sometimes, if the Employer has no office in New York, even though the Claimant resides in a neighboring county, arrangements can be made for the hearing to be held at Garden City if the Claimant wants me to represent them. I do not recommend for Claimants to request telephone hearings unless there is clear and complete documentary proof, beyond a reasonable doubt, that the Claimant is entitled to benefits. Many times, the issue of qualification and eligibility is based upon the credibility of testimony and I feel it is difficult for a judge to ascertain credibility just by telephone testimony. Many times, it is a person's appearance, demeanor, etc. that helps a judge determine credibility.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"What happens at the hearing?

The hearing is recorded. The judge will begin by identifying all the parties and the issues and will explain how the hearing will proceed. Testimony is taken under oath or affirmation. The judge will ask you and the other party questions. The judge may decide to consider new questions about your case not identified in the NOTICE OF DETERMINATION or your employer's objection. The judge must find good cause to consider new questions, must explain the good cause for you, and must offer you an adjournment (delay) if you are not prepared to discuss the new question. You will be allowed to ask questions of all other witnesses. The judge will assist you in asking questions of witnesses if you need help. A lawyer or representative for any party, would be allowed to ask questions. Any witnesses, documents or other evidence that supports your case should be brought to the hearing. If you need more time to get them, let the judge know this and explain why it is needed. If you cannot get the evidence you need, ask for a subpoena. The judge will rule on which documents or testimony may be admitted into evidence. He/She will also permit parties to use documents from the case file in presenting their case. The judge considers only the evidence at the hearing that is accepted into the record. You have the right to see and talk about any document before the judge accepts it for the record. At the end of the hearing all parties can give closing statements."

All of this is basically true...but I could write a book as to what else can happen. By this blog, and by addressing each FAQ, I hope to address all the different issues. With respect to this FAQ, the Claimant should bear in mind that the hearings are scheduled in one hour segments so that when complex factual issues are present, the hearing may end after an hour and the next hearing date will not take place until a mutually convenient day and time, usually up to 4 weeks. Also, if the DOL appears at the hearing through counsel, there is a third party at the hearing to ask questions, etc. From personal experiences, no two hearings are alike and I have been involved in hearings that took as little as 15 minutes to hearings that lasted over several months. Also bear in mind, the administrative law judge hearing may not be the final say on the matter - there is a further appeal process, first to the Appeals Board and then to the Appellate Division, 3rd Department.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Who can attend the hearing?

You and someone who can help you present your case can attend the hearing. This person can be a lawyer, an authorized agent, union representative, or a friend. Your former employer or their representative(s), (who may be a lawyer) may attend. You and your former employer both have a right to bring witnesses. The DOL may send a representative to defend its decision."

I note the following:

1. I had a consultation where the matter was adjourned under the following circumstances: the Claimant could not speak English. A relative was present and advised the judge that the relative would represent the Claimant. The judge adjourned the case stating that while the relative may help the Claimant present the Claimant's case, only a lawyer or an authorized service representative can represent a Claimant. So anyone can attend, not everyone can represent.

2. If the additional person present will be a witness, the judge may have the witness sequestered - placed in another room - until it is their turn to testify. The hearing rooms are generally not that large, at least in Nassau County, so it is not a good idea to bring an entourage for support purposes.

3. I have been involved in hearings where the DOL has sent counsel to uphold a denial of benefits but have not yet seen the DOL send counsel to uphold a grant of benefits (when the Employer requested a hearing). I recently had one matter where, even though through cross-examination it was clear that the Employer had submitted false evidence to support the denial of benefits, the DOL counsel did not change it's position that the Employer was a credible witness and that benefits should be denied. Fortunately, the Administrative Law Judges are independent of the DOL and the determination of the DOL was overruled.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Who is the judge?

The judge is employed by the Unemployment Insurance Appeal Board to decide if the determination made by the Department of Labor is correct or not. The judge is not connected to any side in the case. The judge is not connected to the Telephone Claim Center (TCC). The judge’s job is to make sure that everyone gets a fair chance to be heard. The judge knows the unemployment insurance law, evidence and procedure. The judge will review the evidence introduced at the hearing and will send you a written decision after the hearing."

I find all the judges knowledgable and fair. They will ask questions to both the Claimant and the Employer to get to what they feel is a critical issue in the matter. And Claimants should remember to be respectful - do not interrupt the judge when they are talking to you. Listen to the judge's questions and answer the question.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Can I ask for the hearing to be on a certain day or time?

When you ask for the hearing, explain if you cannot attend during certain hours or on certain days and the reason for that. We will try to satisfy your request."

Remember that the Employer may also be requesting the same - thus, the Appeals Board will be finding a mutually convenient day and time and this involves a delay in a hearing date. I usually suggest to Claimants who request a hearing, or to Claimants who receive a notice that the Employer has requested a hearing, to find an attorney at that time so that the attorney can not only adequately prepare, but can, through the Appeals Board, find a mutually convenient day or time for the hearing. There have been times when Claimants contact me the night before a hearing and ask if I can represent them - in most of those situations, if I am not available or unable to prepare in time but the Claimant still wants me to represent them, the best I can do is have them attend the hearing on their own and request an adjournment at the hearing. This also involves a delay in the hearing date.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"What does the hearing mean to me?

The hearing is an informal trial. The judge decides after the hearing to grant or deny unemployment benefits to a claimant. If the judge decides in the claimant’s favor, any benefits due will be paid. If an employer asked for the hearing and the decision goes against the claimant, the claimant’s benefits will be stopped and it is possible any benefits the claimant has already received may have to be repaid."

In Nassau County, where I practice, the hearings are scheduled for one hour. That means a hearing may last for more than one day and rescheduling may take several weeks to a month. Usually, a decision in favor of a Claimant is issued promptly but it can take several weeks before benefits due will be paid. In any event, Claimants should continue to certify after they have been denied benefits (before, during and after the hearing)so that those unpaid benefits will also be paid if the judge decides in the Claimant's favor. The judge also has the option to expand the issues in a hearing. I was involved in one hearing on the issue of voluntary separation. After the Employer testified, the judge expanded the hearing to include the issue of misconduct. Although the Claimant was successful at the hearing, the Employer appealed and, until the Employer withdrew it's appeal, the whole process took almost 2 years.

In summary, what the hearing means to the Claimant is a decision on the issues raised in the Notice of Adverse Determination (subject to expansion) and, if the hearing is requested by the Employer, a decision on whether the Claimant will be entitled to continue to receive benefits and it is possible any benefits the Claimant has already received may have to be repaid.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"Who can ask for a hearing?

A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits."

A Claimant should be aware that the parties involved in the hearing may not be just the Claimant and Employer. There are times when the DOL also becomes a party to the hearing and the DOL's interst may be adverse to either request.

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

Let me comment on some of the statements made on the Appeals Board FAQ website on hearings. The first FAQ is as follows:

"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?

The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one."

Here, the Claimant must be timely in their request and I would suggest that the Request For Hearing be sent with some sort of delivery confirmation. The Appeals Board and the courts have been strict with time time requirement of 30 days. It is a rule that a non timely requests for hearings will be excused if a physical condition or mental incapacity exists rendering the claimant unable to comply with the statutory requirement or that there be a reasonable excuse for the delay. IN RE BAIRD, 54 A.D.3d 466 (3d Dept 2008); IN THE MATTER OF DIAZ, 6 A.D.3d 1024 (3d Dept 2004); See also see Matter of Tobar (Commissioner of Labor), 308 A.D.2d 651 (2003); Matter of McKinleyo (Commissioner of Labor), 307 A.D.2d 506 (2003). An examination of some cases reveals different constructions of what is a reasonable excuse for a delay. For example, there are these decisions from the Appeals Board:

"Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)

A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)

A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)

A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)

An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)

The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)

An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)

A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)

Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)

When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)

Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)

In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)

NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING."

UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS

One of the most important aspects of preparing for a hearing is determining what the Employer's position is and the documents submitted by the Employer to the DOL. Also, certain papers which the Claimant should have kept regarding their claim for benefits, if lost, can be found in the file. Unfortunately, there is not much time to review the file. From the Appeals Board website:

"Can I come before the day of the hearing to look at the file?

Yes. At any time after you receive the Notice of Hearing, you may come in to review your file. Call the ALJ Section telephone number on your Notice of Hearing to arrange this.

Can I see my file on the day of the hearing?

A party wishing to review the file on the date of the hearing should arrive 30 minutes early and tell the receptionist that you would like to review the file."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Now let's say the Claimant received a Notice of Adverse Determination on the grounds of Misconduct. Now in the statement to be prepared by the Claimant, the Claimant should be specific and in diary form give the following information:

1. How did Claimant learn of the firing.

2. Describe the date, time, place, people present at the incident of firing.

3. Describe in detail each communication at the incident of firing.

4. Describe in detail the steps Claimant made to resolve the issues after being fired(i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.

5. Describe in detail what the Claimant's version of the acts of misconduct.

6. Describe in detail any witnesses to any acts of misconduct.

7. Describe in detail any prior warnings received by Claimant regarding misconduct and if in writing, furnish a copy.

8. Claimant should furnish, if possible, a copy of the company handbook, rules, etc.

9. Claimant should furnish a copy of past written evaluations.

10. Claimant should furnish a history of pay increases.

11. If the charge of misconduct resulted in an arrest, Claimant should furnish all details regarding arrest, court decision, any documents.

12. Was there any previous hearing on these issues (through union or HR),

13. Describe in detail Claimant's attempts to resolve the issue of misconduct.

14. Describe in detail what happened to Claimant's belongings and employer's belongings in Claimant's possession (this is also germane in issues of voluntary separation as it may establish that Claimant was fired and did not quit).

The attorney should of course research the Appeals Board and Appellate Division cases of misconduct and may have to seek out additional facts. An attorney should treat these type of hearings like any case: preparation is the key.