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.

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.