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

I agreed to take on the case. A retainer agreement was sent out. It is a 2 page document but with 9 pages of attachments. Here is page 1 of my form retainer:

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

The next day I received the following email from the claimant:

"I attended the hearing today. I believe I am just waiting now to see if you will take my case. I did mention your name to Judge XXXX that I would be using you as my counsel if you do. Thank you again."

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

As per my instructions, the claimant emailed back a detailed description in diary form, with names, dates, etc., of three instances over a six month period in which claimant was given warnings of termination for failure to meet sales quotas, including a recollection of signing a document acknowledging that if claimant did not meet sales quota for that week, claimant would be terminated. The claimant was not given a copy of that document nor was it in the DOL file.

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

Since I still needed time to investigate, resarch, etc. and the hearing was the next day, I instructed the claimant as follows:

"Hi:

Just to confirm our conversation:

1. Attend the hearing tomorrow and tell the judge that you are consulting with an attorney and do not wish to proceed and that you will make an application to reopen after you consult with counsel. You may give the judge my name if he asks who you are consulting with.

2. You will give me a time line diary of the incidents regarding your discussions, etc. regarding failure to meet quotas and job jeopardy.

3. Also, you will give me, to the best of your recollection, a detailed statement of what you recall the letter stated that you signed."

NASSAU COUNTY PRO BONO FAIR

Today from 3-7 p.m. at Nassau County Bar Association (I will be there from 5-7pm).

Nassau residents can meet with an attorney one-on-one for legal guidance. Registration required: 516-747-4070.

LINK TO PRO BONO FAIR FLYER

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

Of course, when the DOL investigator contacted the employer, there was a response. Here is the summary of interview:

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

As noted in the Summary of Interview posted yesterday, the DOL investigator represents that the message to the claimant "included the information that failure to respond in a timely manner will result in a determination based upon available information"

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

The next item illustrates a problem that many claimants face - a failure, whether intentionally or not, to return a phone call from the DOL investigator:

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

Page 2 of the questionnaire sent by the DOL to the claimant. Note that it is unsigned as this was completed by the claimant on line and this is the DOL print out.

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

After a notice of protest is sent out, the DOL investigates. A request was made by the DOL to the claimant to complete a questionnaire and the claimant completed it on line. Here is page 1:

EMAIL BACK UP

So please use jmp@jmpattorney.com

Thank you.

EMAIL ALERT

My email jmp@jmpattorney.com is presently not working due to a server issue. Please contact me by email at jmpattorney@gmail.com

Thank you.

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

The employer's notice of protest:

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

The request for hearing:

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

The notice of adverse determination:

FROM THE NYSBA LAW DIGEST

"CLOSELY DIVIDED COURT UPHOLDS IMMUNITY FOR INTERNET PROVIDER DESPITE ITS ARGUABLY ACTIVE ROLE IN ENHANCING DEFAMATORY MATERIAL

Whether a website provider can be held to account, such as with tort liability, for the defamatory content of a posting it has allowed on its site is a question that has occupied and beset the courts, both federal and state, around the country. The New York Court of Appeals had only a brief involvement with the subject. That was in its 1999 Lunney decision (Digest 480), which we reported under the caption “So Far So Good for Internet Providers: By Analogy to Telephone Companies, They’re Not Liable for the Content of Messages”.

But now we’re in 2011, a dozen years later, and there’s been a huge growth in the use of the Internet since then, and a concomitant surge of issues generated by the loud clash between our law’s devotion to free speech on the one hand and its still existent – but seemingly diminishing – protections for the defamed on the other.

The defamation laws are designed to protect individuals from false, malicious, and damaging allegations, and the web is an irresistible place for the defamer to place those allegations. It’s a grand expedient whereby a defamer can reach the public. Caught in the middle is the website provider. Can it be held liable, and cast in tort damages, for letting a defamation on?

The gist of the law as now applied by the Court of Appeals in Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281, .... N.Y.S.2d .... (June 14, 2011; 4-3 decision), is that it can’t, as long as it essentially does no more than let the material on. But what happens if the site is “interactive” (as this one was) and itself does some rearranging, or adjustment, or editing of the material tendered to it, and in such a way as to suggest that the site itself is on the side of the alleged defamer?

What happens is that the issue explodes, and the courts divide, including the New York Court of Appeals in Shiamili, in which the four-judge majority, in an opinion by Judge Ciparick, still finds the website immune, while a three-judge dissent, written by Chief Judge Lippman, sees the line of protection passed. Based on the plaintiff’s (P’s) allegations in the complaint, which have to be taken as true for the purpose of disposing of this motion to dismiss at the threshold, the dissent would uphold P’s suit.

The area involved was rentals and sales in the New York real estate market. P owned a company in business in that market. He claims that the defendants defamed him with accusations of anti-semitism and other damaging allegations, and included among the defendants not just the individuals claimed to be at fault, but also a company that operated the website, or “blog”, which was aimed at the same business market. Is the website liable?

It wouldn’t be if it just posted the matter tendered. But P says – and the dissent agrees – that it did much more than that. It edited the material, placed it under a heading of “weekly dose of hate”, and added, among other things, a “traditional image” of Jesus Christ with P’s face and captioned it “King of the Token Jews” – a reference to the defendants’ claim that P kept one “token” Jew on his staff to placate Jewish landlords whose business they sought.

The Court still holds the action against the website company barred by the federal Communications Decency Act (47 U.S.C. § 230), which it finds to have been enacted in response to a New York lower court case that took a stricter view of such website tampering and sustained charges against the site. It’s the publisher of the defamation who is liable for it, and the Act states that no provider of an “interactive computer service” shall be considered a publisher “of any information provided by another”.

Quoting from the Fourth Circuit’s 1997 decision in Zeran v. Am. Online, Inc., 129 F.3d 327, which it terms a “seminal” case in this field, the Court sees the website’s acts here in ­Shiamili as merely the “exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content”. It then quotes from yet another federal case, Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998), which holds that the statute’s immunity extends even where the service provider takes an “aggressive” part in making available content that was prepared by others.

The majority view here in Shiamili dismisses the image as merely “satirical”. The dissent says that this amounts to a trivializing of the site editor’s acts, which it sees as “endorsing the truth” of the accusations against P, and even as an effort “to instigate additional attacks” against P. The dissent says that what the website did here was help “develop” the wrongful allegations, which is conduct the dissent sees as excepted from the immunity the federal act would otherwise provide."

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

The first document to examine was the notice of adverse determination. It stated the claimant was denied benefits on the grounds of voluntary separation without good cause and that the employer had a voicemail in which the claimant stated the claimant was resigning.

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

I instructed the claimant to obtain a copy of the file from the ALJ office immediately and deliver me a copy to review and evaluate. The claimant did so and I began my evaluation of the case.

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

This case began in June of this year with a phone call from claimant. The claimant had been denied benefits for misconduct, requested a hearing, and the hearing was scheduled for later that week.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

No decision has been reached.

The claimant is presently collecting benefits but the appeal seeks approximately 3 months of back benefits - arguing that the date the claimant was capable of employment was April, the date the claimant was denied SSDI and other benefits on the grounds that the claimant was capable of light work, and not June, when the claimant's doctor wrote a note that the claimant was capable of light work.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

A week after I submitted the Statement of Appeal, I filed a supplemental statement as I noticed that the first Statement of Appeal omitted a citation:

"August 22, 2011

VIA FAX ONLY

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

Re: AB XXXXX - ALJ 011-XXXXXX IN RE XXXXX

Gentleman:

I am representing the claimant and I request that the Appeal Board consider this letter in connection with the claimant’s appeal.

In my Statement of Appeal of August 15, I mistakenly omitted the citation of IN THE MATTER OF: Appeal Board No. 552810 (Mailed and Filed: APRIL 28, 2011 PRESENT: LEONARD D. POLLETTA, GEORGE FRIEDMAN MEMBERS) in which the Board held that the date the claimant's application for social security disability was denied on the ground that she was capable of working was “strong persuasive evidence supporting the claimant's contention that she was capable of work as of that date.”

Thank you.

Sincerely,


Jon M. Probstein"

HAPPY COLUMBUS DAY

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Of course, it is page 4 of Exhibit A to the Statement of Appeal filed in this matter which is most crucial as the Explanation of Determination clearly states:

1. The determination was based on medical reports of April 2011.

2. The determination stated that the claimant was capable of working.

3. The determination was made in April 2011.

So why was this date not considered to be the date claimant was capable of employment and why was the date of a subsequent doctor's letter of June 2011 used by the ALJ?

YOM KIPPUR

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

More notes regarding Exhibit A to the Statement of Appeal filed in this matter:

On Page 2, note the definition of substantial work.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Some notes regarding Exhibit A to the Statement of Appeal filed in this matter:

On Page 1:

A. There is a statement that the claimant was found not to be disabled and denied both Social Security and SSDI benefits.

B. Trained staff reviewed the decision and acknowledges that disability rules differ under different programs.

C. For SS and SSDI benefits, health problems must keep the claimant from doing any "substantial work" for at least 12 months.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 4 of Exhibit A to the Statement of Appeal filed in this matter:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 3 of Exhibit A to the Statement of Appeal filed in this matter:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Page 2 of Exhibit A to the Statement of Appeal filed in this matter: