UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Now according to the December 23 notice of the availability to copy and inspect, the time to submit a brief or statement would expire on January 12, 2010 (see 3rd paragraph of December 23 notice from earlier blog) and the postscript stated the Claimant could only submit one brief or statement. However, the appeal was made by the Employer and if I prepared a brief or statement, I would want it to be in response to the Employer's brief or statement. After consultation with the Appeal Board, I was advised that the Employer did not request the transcript and that no statement was going to be accepted as the matter was being heard by the Appeal Board based on the existing record and file.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I received the transcript and reviewed it. It is important to note that at the ALJ hearings, the hearings are tape recorded. The tape recorder is usually at the end of the witness table. It is important, when a witness testifies, to speak directly into the tape recorder. In this case, the written transcript revealed that there were many instances where the transcriber was unable to hear the testimony and, as a result, the transcript had many instances of "inaudible".

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The Claimant was out of town but arranged for a friend and/or relative to copy the transcript. This involved going down to the ALJ office in Garden City, picking up the original of the transcript, going to a copy store, making a copy, returning the original to the ALJ office, and sending me by overnight or hand delivery the copy of the transcript. All this was done in one day.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Then on December 27, 2009, I received a notice from the Appeals Board dated December 23 that the transcript was ready to inspect and copy and I so advised the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I communicated with the Claimant through email and naturally the Claimant was concerned about the cost of copying around 300 pages (about $30). The Claimant decided to go ahead and request the copies and that the Claimant would copy them and deliver them to me. Unfortunately, the copy I have of my request does not "copy" well to post but in effect it was a fax stating that I was requesting to inspect and copy the minutes and that a copy of this request was also be sent to Albany and that a copy has been faxed and sent to the Employer's counsel.

THANK YOU NASSAU COUNTY BAR ASSOCIATION

Yesterday was a Volunteer Recognition Luncheon where I, among others, were recognized for volunteer work in mortgage foreclosure consultations and settlement conferences. There is a clinic today at 3 and I will be there.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Of course, even if an attorney's notes of the hearing are perfect, I believe an attorney should always choose to inspect the written transcript so that the statement of appeal can refer to specific statements and evidence on the written transcript. The issue is whether and how the attorney should arrange for inspecting and copying the minutes. Copying the minutes involves picking up the written transcript at the ALJ office, having it copied, and returning the original to the ALJ office.

The options are as follows:

1. Should Claimant just have the attorney inspect the written transcript? If the attorney cannot incur the cost of copying, inspection of the minutes will involve time being spent by the attorney inspecting and reviewing the transcript and making notes.

2. Should Claimant have the attorney incur the cost of copying the written transcript? If the attorney can incur the cost, the attorney should copy the minutes.
But since the attorney's fee is contingent on a successful case, as per the Appeals Board rules, no fees have been paid to the attorney so the attorney has to decide whether or not the attorney can advance the cost of copying the minutes.

3. Should Claimant arrange to pick up the written transcript, have them copied, and delivered to the attorney so that the attorney has a copy to refer to during the preparation of the statement of appeal? Again, this will involve the Claimant picking up the written transcript at the ALJ office, incur the costs of having it copied, returning the original to the ALJ office and then delivering a copy to the attorney.

The written transcripts, here in NY, are on 81/2x 14 inch paper. In this case, there were around 300 pages of written transcripts.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Now is the time to review the Appeal Board rules when considering a request for transcripts of the hearing:

From Section 463.1

"(f) Notice of receipt of appeal. The board shall send notice of receipt of appeal to the commissioner, the claimant, the employer and their duly designated representatives. Each notice of receipt of appeal to the board shall include the following statement and the parties shall be granted the following rights:

(1) All communications should cite the above appeal number.

(2) The appeal board usually decides appeals without a new hearing. It relies on evidence taken at the administrative law judge hearing and the written arguments of the parties on appeal. The board will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent or it is made part of the record at a further hearing. In its discretion the board may hold an additional hearing.

(3) Each of the parties may submit, in writing, requests to inspect the minutes of the hearing, or statements, documents or briefs to be considered in connection with this appeal. Two copies of such written requests, statements, documents or briefs must be mailed, within seven days from the date of this notice, addressed to the Unemployment Insurance Appeal Board, P.O. Box 151126, Albany, NY 12212-5126. 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.

(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying.

(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.

(6) 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.

(7) Parties may be represented by lawyers or other persons of their choice on appeal before the appeal board. For representing a claimant, a lawyer or agent registered by the appeal board may charge a fee. Before the claimant pays the representative any fee, the fee must be approved by the appeal board. No other person may charge a fee for representing a claimant. If you do not have enough money to hire a lawyer or registered agent, you may be able to get one free through your local Legal Aid Society or Legal Services Program.

(8) If you have any questions, contact the board at the above address."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In determining whether or not to request a transcript, one should consider how an appeal to the Appeals Board works. rather than recite the Appeal Board rules, they are adequately described in the Appeals Board web site's FAQ section:

"What happens after an appeal?

You are sent a notice of receipt of appeal with instructions about the appeal including how to submit a statement and how to ask to see the transcript of the hearing. This is true if you appealed or if the other side appealed.

Can I testify again or add anything to the case?

Most of the time there are no more hearings and the Appeal Board will decide the case based on the record from the judge’s hearing, Whenever the Board decides that another hearing is necessary, an order or hearing notice will be sent to you. New information submitted by a party on appeal will be considered only if a hearing is ordered by the Appeal Board and that information is received as evidence.

Do I have to submit a statement on the appeal?

No. You don’t have to submit a statement but you should send one if you want the Appeal Board to know why you think the judge’s decision was wrong. Two copies of the statement must be sent to the Appeal Board. If the statement is submitted by an attorney, the attorney must serve copies of the statement on opposing parties and any opposing counsel and submit an affidavit of service to the Board with the statement."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next issue was to consider whether the Claimant should exercise the right to inspect minutes. As per the appeal board rules: "Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At around the same time as the mailing of the December 10, 2009 Notice, this other notice was also sent by the Appeals Board. The attachment is the April 28, 2009 Notice of Appeal from the Employer and the lateness explanation letter of July 6, 2009, previously posted, both of which were the subject of the telephone hearings.

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.