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

Page 3 of the decision.

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

Page 2 of the decision.

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

Page 1 of the decision.

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

The hearing then continued with my examination of the claimant and the claimant's testimony has to how the claimant was terminated (described in detail in the decision) and that the claimant did not quit. The ALJ also examined the claimant. The employer did not attend. The hearing lasted less than one hour and, after my closing argument, the ALJ advised that a decision would be issued.

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

After submitting the Notice of Protest on March 21 that the claimant quit, the claimant completed a questionnaire online (Exhibit 3) stating that the claimant was fired but when the DOL attempted to interview the claimant on April 4, the DOL received no response (Exhibit 4). The DOL then interviewed the Employer by telephone (Exhibit 2) on May 17 and ostensibly based the adverse determination on that.

If there is a lesson to claimants in this, it is to always respond to DOL investigations and phone calls.

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

In determining how this issue arose, it is important to note that when the claimant filed a claim for unemployment, an investigation by the DOL began with the employer submitting a Notice of Protest that the claimant quit.

HAPPY THANKSGIVING

President Lincoln (a lawyer) declared Thanksgiving a national holiday in 1863.

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

The TCC 413 Summary of Interview with claimant was Exhibit 4 and it explains why the claimant was initially denied benefits by the DOL.

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

Page 2 of Exhibit 3.

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

Page 1 of Exhibit 3.

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

Exhibit 3 was Form T433.9, the questionnaire given by the DOL to a claimant whose claim is under investigation. In this case, the form was completed by the claimant on line.

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

Note that in Exhibit 2, among other things, the employer contended that:

1. The claimant resigned and that the employer implied that it had a copy of the recording on email.

2. The claimant wanted to get fired but resigned instead.

3. Continuing work was avilable to the claimant.

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

The TCC 413 Summary of Interview with Employer was Exhibit 2.

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

Exhibit 1 was the Application To Reopen Default decision, previously posted, and testimony was given by the claimant with respect to that issue. Then, testimony began on the issue of voluntary separation with the ALJ asking the claimant some preliminary questions.

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

My interpretation of Appeal Board decisions is that the claimant must establish by credible evidence that the claimant is entitled to benefits. Thus, even though the employer did not appear at the hearing, it was the claimant's duty to establish by credible evidence that the claimant did not voluntarily separate without good cause. The hearing began with the standard introductions as to how the hearing would proceed, the ALJ asked myself and the claimant if we were ready to proceed, we said yes, and the hearing began.

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

The claimant and I met before the hearing, re-prepared for testimony, evidence, etc. and then were called in. The employer did not appear.

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

The notice of hearing - note that in addition to the issue of voluntary separation is the issue of the application to reopen:

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

The notice of hearing was sent to both myself and the claimant abput a week before the hearing date: September 27 at 10:15.

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

I also wrote the claimant as follows:

"We will meet at the hearing office an hour before the hearing. I have all the information I need for the hearing date - again, I feel this may take more than one hearing as I need to have the court subpoena certain documents."

If the employer was contesting this claim, I would need the ALJ to subpoena the following documents:

1. The alleged voicemail from claimant.

2. The alleged "final warning" the claimant stated was given to the claimant a week before the employment was terminated.

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

When an application to reopen is made, there is an inherent time delay in scheduling because the claimant's files have to transfer from one ALJ office to another before a new hearing can be scheduled. The application to reopen was made on June 15. In August, I was able to schedule a new hearing for September 27, which was a date the claimant was available.

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

Here is the application to reopen (the default decision was the 2 page attachment):

"June 15, 2011

VIA FAX– 3 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ XXXXXXXXX: IN RE: XXXX

Gentleman:

I am representing the claimant. On behalf of the claimant, the claimant hereby applies to reopen the attached decision.

The claimant defaulted due to the fact XXXX desired an attorney. After contacting me, I began to investigate XXXX claim and discovered that the Claimant has a meritorious claim. It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, XXXX was instructed to sign a letter that if XXXX did not make quota that week, it will result in termination. XXXXX did not make XXXX sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,


Jon M. Probstein

Cc: XXXX"

VOTE!

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

Page 2 of the default decision.

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

The claimant sent me a copy of the default decision. It appeared that the ALJ recorded me as the attorney of record. Page 1 of the default decision.

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

The remaining pages of my form retainer deal with the Appeal Bioard rules on fees and copies of the papers required by the Appeal Board for fees. The claimant signed the retainer agreement and the next step was to make an application to reopen.

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

The third page of the attachment to my form retainer:

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

The second page of the attachment to my form retainer:

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

The first page of the attachment to my form retainer:

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

Here is page 2 of my form retainer: