UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Well all seemed well. The case was handled on a pro bono basis so no request for fees were made. It appeared during the hearings that the Claimant may have had certain rights violated and I advised the Claimant to speak to an attorney who specilaizes in that area. Then I received an email on July 18, 2009, almost 3 months after the decision:

"Dear Jon

Hope You Doing Well.

I Just Received A Letter From Unemployment Appeal Board That XXXX Appealed The Decision Of Granting Me Unemployment.

Please See Attached Files.

If Possible Please Let Me What Should I Do.

Thanks & Best Regards

XXXXXXXX"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is page 5, the final page of the decision. Page 4 and 6, like page 2 in yesterday's blog, is the reverse side with instructions regarding appeal, which was also set forth in yesterday's blog....But although the Claimant was held to be entitled to receive benefits, the story of this case has another 18-20 months to go so to quote Winston Churchill: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is the next page of the decision - although it states page 3, page 2 is the reverse side with instructions regarding appeal, which is also set forth herein.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next day a decision came out. The Claimant was entitled to benefits, the decision of the DOL was overruled. I contacted the Claimant. Here is the first of three pages of the decision. Note how the decision states the two issues - misconduct (the original determination) and voluntary separation (the expanded issue).

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next day of hearings was on April 22, 2009. At first it seemed that the Employer was not appearing. The hearing proceeded with the Claimant's testimony but then the Employer (again with the co-owner/manager) arrived late and the hearing tape was replayed for them. Testimony continued, the facts were complicated, cross-examination, closing arguments, etc. but the hearing was concluded and a decision was reserved by the ALJ.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This turned out to be a complicated factual matter. The first day of hearings (as it turned out there were several days) began the next day on March 13 2009. I met with the Claimant an hour before the hearing, reviewed the file, etc. The hearing began. The Employer did not have counsel but appeared with the co-owner/manager. The ALJ began and took testimony from the Employer. It appeared that the Employer was now arguing that the Claimant quit without good cause. The ALJ expanded the issue to include voluntary separation and I requested an adjournment to prepare. Thus, in effect, I was able to use the first day of hearing as a means of discovery as I now knew the full theory of the Employer's case. The downside to this is that the Claimant was still not receiving UI benefits; however, the Claimant did have a spouse who was employed and family to assist. Thus, I made a judgment call that it would be better to take the time to prepare the case properly insofar as I only had one day notice of the hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

So to start this saga, I received a call from a pro bono organization in the early months of 2009 regarding this Claimant. The Claimant was denied benefits on the grounds of misconduct. The Claimant had a hearing scheduled at the Garden City - I was asked to represent the Claimant on a pro bono basis. I agreed. I spoke to the Claimant immediately as the hearing was scheduled for the next day, did my research and had the Claimant send me by fax certain documentation.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first thing to consider in this case is the time frame: the Claimant's last day of employment was in August 2008. It wasn't until September 2010 that this matter was finally resolved. That is over two years. Again, litigation, even on the administrative level, can be a process and not necessarily a means for immediate relief.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The best way to start the story of this case is at the ending. Here is the Appeal Board decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

As it turns out, there will be ho hearing on September 22. The file did not come back in time from Albany when I tentatively scheduled the date after I received the decision so the scheduling did not occur. I must schedule a new date. These things happen - which is why your calender diary must be accurate and checked in advance. If you do not get a Notice of Hearing at least 3-4 days before the scheduled hearing date, something happened: a request for adjournment, judge is out sick, etc. I spoke to the Claimant yesterday and advised that we must schedule a new date.

LANDLORD/TENANT COURT

Today, I will be Pro Bono Landlord/Tenant Attorney of the Day at Nassau District Court, in conjunction with Nassau Suffolk Legal Services.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

After the decision, I contacted the scheduling office to schedule a hearing for September 22. Usually, the notices are sent out a week before the hearing date. To date, I have not received the notice and tomorrow I will call to confirm with the ALJ office as to whether the September 22 date is still on or has been adjourned. Perhaps the problem may be that the Claimant advised me that the Employer is now out of business. Perhaps there was an error in scheduling. But these things do happen.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Then on August 5, 2010, the Decision of the Board came in.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Finally, in the beginning of May, I was advised by the Appeals Board that the appeal was assigned to an Appeal Board member but no decision yet. I so advised the client.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

It is now mid April: the time period for a response from the Employer or the DOL has passed, assuming the time periods ran from the date of the Amended Notice of Appeal (March 2) and no reply has been received. It appears that the appeal is not being contested but still a decision must be reached. I contact the Appeals Board and they advise me it has not yet been assigned to an Appeals Board member.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

This is what happens after I submitted the additional documentation. Remember, this is from the Appeals Board Rules:

"463.1 (f)(3) ................ An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.

.......

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party."

This is also on the back of the Notice of Receipt of Appeal (earlier blog). But I submitted the additional documentation based upon the following rule:

"Section 463.2 Conduct of appeal.

(a) The board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the appeal and any hearing thereon in such order and manner and with such methods of proof and interrogation as it deems best suited to ascertain the substantial rights of the parties."

You will also recall that when I submitted my original statement (earlier blog), I had the following language:

"I also request that, if the Appeals Board deems the attached insufficient, I be given additional time to submit additional documentation regarding the physical condition and mental capacity of XXXXXXXXXXXXX and other documentation establishing XXXXXX reasonable excuse for the delay in timely filing a request for hearing."

But it appeared I only got "one bite at the apple"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Thus I made a resubmission of my original documents with the additional documentation I sent on February 27th under the theory I was presenting this submission under the Amended Notice of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Then, I received a document from the Appeals Board, another Notice of Receipt of Appeal, marked Amended, which was dated March 2.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

For some reason, the Appeals Board did not send me the Notice of Receipt of Appeal but I was already familiar with the Appeal Board rules. From earlier blogs on this case, you will note that because the Claimant was homeless, I decided to forgo a reading of the transcript and speed up the appeal process by filing my Statement of Appeal on February 11. When I received from the Client the first page of the Notice of Receipt of Appeal and some other documents, I attempted to send them to the Appeals Board on February 27.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

This is the reverse side of a Notice of Receipt of Appeal. If you note on an earlier blog, the front states at the bottom in bold "READ IMPORTANT INFORMATION ON THE REVERSE"

HAPPY NEW YEAR

L'Shanah tovah and a Happy and a Healthy New Year to all of those celebrating the coming of the New Year.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Now here's an interesting twist. Remember, I filed a Notice of Appeal (earlier blog) on February 2 and a Statement on Appeal (earlier blog) on February 11. After that date, the Client sent me by fax the first page only of the Appeal Board's Notice of Receipt of Appeal dated February 5. See above.

BACK TO WORK

I hope everyone had a wonderful Labor Day!

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

The Appeal Board rules clearly state at 463.1: "Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party." It further provides: "Any party may make a written request for an extension of the above time limits to submit a statement, document, brief or reply. The request must give the specific reasons why the time limit cannot be met. Extensions will only be granted if the request establishes good cause to excuse the delay. Unless an extension has been granted, any submission mailed after the times specified here shall be returned to the party."

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

After I filed my statement on appeal on February 11, the Claimant sent me some additional documentation. The question was now - what should I do with these new documents and evidence?

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

In this matter, I did not request a transcript - the reason being is that:

1. This involves an additional delay in the appeal process. The Claimant was homeless and I was trying to speed up the process.

2. It was clear to me from the decision that I would not get anything from the transcript - but this can sometimes be dangerous especially if you, as an attonrey, did not attend the hearing.

Thus, on February 11, six days after filing the notice, I submitted my statement on appeal which had the following introduction (this was done my legal letterhead):

"February 11, 2010

UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: APPEAL CASE NO XXXXXX: IN RE: XXXXXXXXXXXXXX

Gentleman:

I am representing XXXXXXXXXXX.

I hereby request that the attached documents and this letter be considered in
connection with this appeal. I also request that, if the Appeals Board deems the
attached insufficient, I be given additional time to submit additional
documentation regarding the physical condition and mental capacity of XXXXXXXXXXXXX and other documentation establishing XXXXXX reasonable excuse for the delay
in timely filing a request for hearing."

I then began my arguments, cited my case law, etc.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Now of course prior to the filing of the Notice of Appeal, I contacted the Claimant to ascertain the full story. In summary, the administrative law decision denied Claimant a hearing on the grounds of timeliness. Claimant ostensibly filed the request on March 29 instead of by March 4 - about a 25 day delay. However, what the administrative law judge did not consider, because of the Claimant's mental condition, was that as a result of the employer’s actions taken in discharging the Claimant, the criminal complaint filed against the Claimant required by law, the Claimant's inability to get work until the criminal matter was resolved, etc., the Claimant became homeless, went and still is under psychological care, was and still is on psychiatric medications and is now living in hotel shelters in Nassau County. The Claimant's only address is a post office box. So I asked the Claimant to supply me with a written explanation of the Claimant's circumstances which was not addressed at the hearing, and supporting documentation.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

This copy did not come out clearly but here is the Notice of Appeal I filed. Do note that it was filed immediately, February 2, well within the statutory period.