Legal Mumbo Jumbo on the Decision Letter
• UIA: Unemployment Insurance Agency
• ALJ: Administrative Law Judge.
• Appeal/Docket Number: This is the number the Office of Appeals uses to keep track of your case. You can find it on the top right corner of your Notice of Hearing.
• Claimant: That is you. You filed a claim for Unemployment.
• Jurisdiction: The ALJ has to go through these details of what the Unemployment Insurance Agency did before getting to hearing stage.
• Statement of Facts: This is the section where the ALJ tells you what he thinks happened. This is important because his determination of facts will guide the decision.
• Issues: This is the part where the ALJ lists the rules that control his decision. It has a lot of mumbo jumbo about what the laws say and how the laws have been interpreted.
• Reasoning and Conclusion: This is a very important. It tells what the ALJ believes to be the truth and why he decided the way he did.
• Order: It is the section where the ALJ orders the Unemployment to do or not do something. “Claimant is not disqualified. . .” “Claimant is not eligible. . .”
What is the Bottom Line?
Click edit above to add content to this empty capsule.
You have gone to your Hearing. You have answered all the questions. You have hoped and prayed for the answer you need.
So, what is next?
It usually takes about a week for the ALJ to mail out his decision. There is basically three ways that the ALJ can rule. Firstly, He can say that you should get your unemployment. In this case, the Order will say, “Claimant is not disqualified . . .” Or in some cases it may use the word “Eligible.” This means he found for you. You win!
The second way he may go is, “Claimant is disqualified . . .” or “Claimant is not eligible. . .” This means that the Employer wins.
The third option is more rare. In some cases, the ALJ may split his decision. He may say you get your benefits for some weeks and not for others.
What is next if the ALJ finds for you?
The ALJ will send his decision letter to several places. He sends you, the Claimant, a copy. He sends the Employer a copy. He sends a copy to your Attorney/Agent (if you have one). If the Employer had an Attorney, he will also get a copy.
So, the most important place that the ALJ will send the decision letter is to the Unemployment Agency. At the same time he sends it out to the parties, he also sends it to the UIA. They then start to process it. I do not know what happens in this dark and murky place of bureaucracy other than a few things that I have been told. The UIA goes through their process of reversing the benefits.
The question is always, “How long does it take to get the money after the ALJ decides the case for me?” The answer is different for different people. I would guess that the average for most people is that it usually takes a couple of weeks from the time of the decision. That guess is based on what I have heard from Claimants. If it takes the ALJ takes about a week to issue the letter, then the agency takes about a week to process the benefits, that is about two weeks.
The fact is though that sometimes the ALJ gets the decision out in the mail the very next day, or sometimes it takes a couple of weeks to get the decision. Sometimes the UIA takes longer to process, or they process very quickly. So, sometimes people get their benefits promptly. But sometimes, it seems to take for ever.
So, I guess my answer is, “Usually about two weeks, but you never know with bureaucracy.”
What’s next when it is against you?
You have gone to your Unemployment hearing for your benefits. You waited for about a week or so to get the ALJ’s decision. You sort though all kinds of legal mumbo jumbo. Then you read the disheartening words, “The Claimant is disqualified for his benefits. . .” If you do not want to fight any more you do not have to. But you need to understand that if you got paid any Unemployment Benefits, and the ALJ finds against you, you will be asked to pay back what you got.
If you want to appeal the decision, read the back page of the decision. It informs you of your rights of appeal. It also give you contact information for the MESC Board of Review.
If you disagree with the ALJ’s decision, you have two options. You can do one or both of them, or skip the first, and go right to the second.
I. Ask for a Re-Hearing.
Your First Option is to ask for a Re-Hearing. The option of a Rehearing is for when you have found that there is more information that you did not have or did not know that you needed for your first hearing.
This Re-Hearing option is not used most of the time. It is often hard to get the Re-Hearing granted. But I list if first because if you are going to do it, you want to do it before the Protest to the Board of Review.
Sometimes when you go to a hearing, even though you have prepared properly and done what you can. . . Sometimes you still find that you do not have all the information that you needed. Sometimes you do not know what the employer is going to say until they say it. Only during the hearing do you realize that you need information or a witness, and you had no way of knowing before then.
In this case, you can ask for a rehearing to get the information into the record so that the ALJ has all the information that he needs to make a fair decision. The trick is that you cannot get a rehearing if you knew or should have known that you might need the missing information before the hearing. If you should have known that you needed the info and did not have it, it is your loss. The ALJ will not give you a second shot.
You could get a rehearing if
1. You really did not know that you needed the information, and you had no way of knowing that you needed it.
2. Or, you had no access to the evidence until after the hearing.
A. First you must ask the ALJ for the Re-hearing.
To get the Re-Hearing you must first ask the ALJ for it. You cannot just go to the judge’s office and ask the secretary to get you a Re-Hearing. Nor can you do it by phone. You must do this in writing. You can do this by mailing a letter to the judge’s office, but I find that it is better to do it by fax. That way you can make sure that they did receive the Request.
The phone and fax numbers for the ALJ’s office should be on the notice of hearing. Or if you lose that, your Advocate that helped you with the hearing should have the number to the office.
What do you say in the Request for Re-Hearing?
You must have evidence that you did not have or did not know that you needed in the first hearing. Now, you realized that it was important.
• Tell him what the evidence was.
• Tell him why you did not know that you needed it in the first hearing.
• or, Tell him why the evidence may not have been available to you for the first hearing.
B. What if the Judge denies your Request for a Re-Hearing?
Some Judges are more likely than others to deny a Request for Re-Hearing. There is still one more chance if the ALJ denies the Request. You need to send the same request to the MESC Board of Review.
Take a copy of the first letter and attach a note saying, “The ALJ denied this request for a Re-hearing. I would like the Board of Review to order a Re-Hearing . . .”
Tell the Board why you believe that you did not have a chance to present your evidence
(1) Ignorance of the Fact
(2) Inability of Council (although I do not know if the Board will give this any weight)
(3) Ignorance of the issue. You did not know what it was until the hearing and/or ALJ’s decision.
The Board of Review is not going to consider evidence that was not given at the Hearing. That is why you need a Re-Hearing if there is more evidence that needs to be considered. The will only consider what evidence is introduced to the ALJ at the Hearing.
If you want more evidence to be considered you have to get a Re-Hearing.
II. If you disagree with the ALJ’s decision, your Second Option is to appeal to the MESC Board of Review.
You do not have to ask for a Re-Hearing. You can go directly to the second option of Appeal. Most people do. But even if you did ask for a Re-Hearing, and the Board denies the request, you can still protest the ALJ’s decision.
This is not another hearing. This is done by letter. You do not have to go anywhere or speak to anyone.
You simply write/fax a letter to the Board saying that you disagree and want to appeal the ALJ’s decision. I would suggest fax because you can then call the secretary and confirm that they received the Protest Letter.
To contact the MESC Board of Review:
• Voice Line: 800-738-6372
• Fax Line: 517-241-7326
•
While the letter asking for a Re-Hearing tends to be complicated, the Protest Letter does not need to be. It could be as simple as:
“I disagree with the Judge’s decision. I want to appeal it to the Board of Review.”
Of course, you need to include a few bits of information:
• You must include your Name.
• You should include the Date.
• You should include your full Social Security Number so that they know for sure who you are.
• It might help to give the ALJ’s name.
• It might help to give the Appeal/Docket Number from your hearing (B2010-45678 for example). You can find it on the top right corner of your Notice of Hearing.
• You need put your signature on the letter.
You can find the address to the Board of Review on the back page of you Decision Letter.
That is all you have to do to appeal the ALJ’s decision. You do not need to do anything more. It is free of charge. If you disagree with the ALJ, why would anyone not protest?
A. Additional options when you Protest the ALJ’s decision: Written Argument and Oral Argument.
You can after that use one of two other options but do not need to pursue either. They are extra, not necessary. These two options are Written Argument and Oral Argument. An argument is you telling the Board why they should find in your favor based on the facts submitted at the hearing.
When you protest a Decision, the Board prepares a transcript of the Hearing. They will send a copy of this to both parties. If you have an Advocate/Attorney, the transcript will go to him. You will still receive a letter stating that the transcript is prepared. This letter will also tell you what the deadline for any argument is.
An Argument is when tell the Board why the ALJ was right or wrong. You do not add any evidence to the record, but you take the existing testimony, exhibits, and facts and show the Board why the ALJ was wrong. Maybe you agree with the ALJ because he found in your favor. If the Employer appeals, you may want to argue why the ALJ was right.
If possible, you want to find other cases that are similar to yours. If there are cases like yours that the Claimant won, you will want to point those out the similarities between your case and that one. If there is a case that is similar to the facts of your case, but in that case they found against the Claimant, you want to show the differences in the cases.
You can ask for an Oral Argument. This is very rare. Someone told me that the Board only allows Oral Arguments about ten times a year. I do not know how accurate that estimate is, but that was what I was told by someone in the office.
An Oral Argument is “oral” meaning you make it in person and verbally. You would go before the Board and verbally tell them which way you want them to decide. They may ask you questions as to why you take your position.
If you ask for an Oral Argument, you may want to send written argument in support of the Oral Argument. The Written Argument will go through all of what you want to say. The reason that you would still want the Oral Argument is so that you can answer any questions the Board might have and verbally persuade them past their disagreements.
You can submit a Written Argument alone. This is more common. Most people do not do arguments at all. But those that do make arguments, it is usually a written argument.
For a Written Argument, I would suggest that you gave a few different parts.
1. You should start out by stating what you want to Board to do. “Please affirm the ALJ’s decsision. . .” Or “Please reverse the ALJ’s decision. . .”
2. Statement of Facts: You should include a Statement of Facts. In this section, you should take your story and tell it again in a way that will support your position. Of course, you must make sure that you keep to the facts that were actually shown at the hearing.
3. Issues: You should have an Issues section. “The issue is whether the ALJ was wrong when he . . .”
4. Reasoning: You should have an Reasoning or Argument section. In this section, you contrast or compare previous cases. You show your logic as to why the ALJ was right or wrong.
5. Conclusion: Wrap it up and briefly summarize why the Board should find in your favor.
If the Employer did not have an attorney, it is hard to make an argument. The problem is that the rules say that if they do not have an agent/attorney, you have to ask their permission for the Board to consider your argument.
If the Employer does have an agent/attorney, it is easier. All you have to do in that case is to send (1st class mail is okay) the attorney a copy of your argument before the deadline. Then you write a letter confirming that you did send a copy to the Employer. Include the date of when you sent it and how you sent it.
If the Employer did not have an agent/attorney, in my experience, there is no use in writing an argument because you cannot make the Employer agree to let the Board consider your argument. The Employer will probably just ignore your request. Why would they assist you? They want you to lose.
Unfortunately, the Advocacy Program does not pay for representation to the Board of Review. The Advocacy Program will pay for your hearing, but not past that stage. So you have some options. The First Option is to do nothing after you appeal to the Board. Once you have requested the Board to consider the ALJ’s decision, they will do that. You do not have to do anything else.
The Second Option if you want to have an argument is to write it yourself. You can get the transcript of your hearing either from the Board or from your agent/attorney.
The Third Option is hire someone to write it for you. I have no idea how much the average price of that is (I have spoken to me about prices that are much higher than me.) Ask your advocate/attorney if he is willing to write the argument for you, because not all Advocates do that kind of thing.
Showing posts with label unemployment advice Michigan fired protest. Show all posts
Showing posts with label unemployment advice Michigan fired protest. Show all posts
Monday, August 2, 2010
Friday, March 12, 2010
How to get your Unemployment in MI
When filling out your Unemployment forms, there are some things you need to keep in mind to protect your rights.
Basic Terms:
• Laid Off: This really only applies when the employer has run out of work for you to do.
• Discharge, Termination, Fired, “Let Go”: All these terms are usually the same thing. This is where the Employer had work for you but chose to end your job.
• Voluntary Leaving, Resignation, Quit: These terms also usually describe one thing. This is when you have chosen to end your employment.
• In-voluntary Leaving: This is when you are forced to leave the job, but it is outside of your control to stay or leave.
• Resignation in lieu of Termination: This sounds like you quit your job. In fact, it is the opposite. This is when the employer is going to fire you. So, instead you quit to avoid having the “fired” mark on your resume. So, for unemployment purposes, this is still a termination because the employer started the separation. This is a good thing.
What is best for you, the Worker?
1. Obviously, it is best to never lose your job.
2. Next best is for unemployment is layoff.
3. Next best is to get fired or quit in lieu of termination.
4. Least beneficial for unemployment is for you to quit.
In each of these situations of losing your job, you can still get unemployment. But as you go down the list, it becomes harder.
Some things to keep in mind when you fill out your forms to get unemployment:
• Be as truthful as you can. If you smudge it or worse lie, it can come back to haunt you. Besides that, lying is just wrong. The last thing you want to do in a hearing is have to explain what looks like a lie on your forms. I have seen this happen too many times.
• On layoffs. If the employer says, “I don’t have anything for you anymore,” he might be laying you off. But they may, in fact, be firing you. Do not say you were laid off when you know there was work for you. If the boss had work, but did not want YOU to do it, that is probably a firing.
• On firings. Some people are afraid they will not get their benefits if they are fired. That is not necessarily true. The unemployed worker does not want to say that he was fired. I have seen people who should have gotten their benefits but lost them because it looked like they lied on their application. The judge is left to think, “If they lied on their application, maybe they are lying in the hearing.”
• On quitting. When you fill out the application, you know what considerations caused you to quit. Understand that in most cases, what was happening in the stresses of your life will not get your benefits. You need to tell the agency what was wrong with your employer. What did your managers, co-workers, or employer do to you that was wrong? This is what you need to focus on in most cases.
How to protest the Determination
When you get your Determination it will obviously be for you or for the employer. Either you or the Employer can protest. But the Unemployment Agency can also decide you do not deserve benefits, even if the employer has not protested you getting them.
So how do you protest a Determination against you?
1. Make sure you are on time. You have to get your protest to them within 30 days of when they set it to you, not when you received it. It also must be to them before the deadline. Being postmarked on time is not good enough. You may want to fax and mail it both.
2. Make sure you include the following information.
a. Date
b. Name
c. Social Security Number
d. Identify the issues you are protesting. If possible, include all the issues involved by number (29(1)(a) or 29(5) etc.).
e. Clearly say “I want to Protest the Determination dated . . .”
f. Signature
g. You may want to add all kinds of other information, but you do not have to include anything else to protest.
3. Often, people have several issues running against them at once. Some people make the mistake of thinking that the issues are all the same or duplicate copies of the same determination. Sometimes, you will receive two determinations that look the same on the same day. You need to make sure that you protest all determinations that you disagree with.
4. You do not have to write your life story in protest. Keep it short and to the point. Telling them how good an employee you were in things unrelated to your firing will not help you. For example, if you were fired for stealing, it does not matter if you were on time to work every day. And the fact that you worked for the employer for a hundred years does not mean that you did not threaten somebody. If you were fired, it usually does not matter if they mistreated you in other ways. Also, unless you are asking for a Waiver of Restitution, your financial hardships do not make a difference. Keep it concise. I have seen people protest the determination in a way so that the examiner did not know it was a protest. Keep it short, direct, and avoid too many details.
5. If you want to convince the Unemployment Examiner to reverse their determination, chances are that you will need to send some kind of paper evidence that proves your point. If you just tell your story, that often is not enough. Include pictures, emails, documents from the employer, doctor notes. If you do not have any of these, just protest so you can tell your story to the Administrative Law Judge (ALJ).
When you are employed and you speak to anyone about your job, you should make a personal record of who you spoke to and what was said and when. The same is true when you file for unemployment. You really should make a record on a calendar or planner or just a note book whenever you speak to someone about your unemployment. Note who you spoke to, when, what was said, and what your reaction was. You never know when such a note could mean the difference between getting and not getting your benefits.
When you protest your determination, keep a copy with the date. Note the method of communication, fax, mail, on-line, in person.
Many people lose because they do not keep a careful personal record. Use a calendar, or note book. You never know when the question of winning will come down to a simple detail of who it was or when it was you spoke to the UIA. It takes a lot of work to document such things, but it is your life, after all. If you make the effort to keep the record, you may never need it. But I have seen too many people that have lost what they were legally entitled to because they did not jot down a simple note.
Finally, you can hurt yourself if you give too much information in your protest. Too much information becomes confusing. It can give the other side ammunition to twist around your words and mix you up.
Protesting the Redetermination
For Protesting the Redetermination, refer to the guidelines above for protesting the Determination as well as those below.
Often I find that the examiners simply reaffirm the Determination unless there are some kinds of documents submitted. But these documents need to be something other than your story. People pour their soul into retelling the same story over and over. You may not want to go through that grueling process again. I have seen the UIA reverse the Determination or the Redetermination. Most of the time, it is only because some documents other than just the story are sent in. These documents could be pictures, business records, emails, etc.
If you do not have anything except your story, you might consider saving yourself some hassle. What I mean is, do not torture yourself trying to dredge out every conceivable fact or nuance of the situation. Consider just writing a protest letter that says, “I disagree with the Determination that said I was disqualified for . . . I want to protest.” Short, sweet, and simple.
In my experience, unless you have one of those kinds of evidence mentioned above, the UIA is not going to reverse the decision in your favor anyways. Save yourself the hassle. When you get to the hearing that is when you get to lay out your story for a real person.
Once you have a Determination and then the Redetermination, if either side protests, you are going to a hearing. This is what you have been waiting, longing, yearning for. It is the chance to tell your story face to face with a real person. Just remember, you do not have to write your auto-biography to get here. Just protest the Determination and the Redetermination. Then, you get your hearing.
A word on the Burden of Proof.
When you are fired, you do not have to prove anything. For the Unemployment purposes, the employer has the burden to prove you did something wrong for you to be denied your benefits. So, when you are filling out your applications and protest, just reiterate that the termination was the Employer’s choice. It was unfair to you. You should not have been fired for this event because. . .
When you resign, you do have to prove that either you quit because the Employer did something that would force a reasonable person to quit, or you did not have a choice. So, do not tell the UIA about your problems that you were facing at home and in your family.
You need to show:
• The employer did something wrong. There was something wrong happening that was under the employer’s control. This needs to be something that would cause a reasonable person to quit.
• You complained to a supervisor about the problem. More than once is a good idea.
• You gave them a chance to fix it.
• It was still not fixed.
So as you are filling out your applications and protest or even if you are going to the hearing this is what you want to try to prove.
One more word on the Burden of Proof:
This is not a criminal trial. The level of proof needed to carry the burden is not “beyond a reasonable doubt.” The level is by the “preponderance of evidence.” If we could put this in math terms, somebody has to convince the ALJ by 51% of the proof. If the judge looks at the evidence for both sides and equally believes both sides, then the burden of proof has not been carried.
Let me put this in practical terms. If you were fired, the Employer has the burden of proof. If at the end of the hearing, the judge finds both sides equal in their evidence. You should win because the Employer did not carry its burden to prove you did something wrong. They need to tip the scale to their side to win.
If you quit, and at the end of the hearing, the ALJ finds the evidence equal between both sides, you will lose. This is because you have not tipped the scales to make the judge believe you. You have not carried the burden of proof.
You can tip the burden of proof in your favor by having another witness to the event, by documents that agree with your side of the story, pictures, or emails, etc.
Basic Terms:
• Laid Off: This really only applies when the employer has run out of work for you to do.
• Discharge, Termination, Fired, “Let Go”: All these terms are usually the same thing. This is where the Employer had work for you but chose to end your job.
• Voluntary Leaving, Resignation, Quit: These terms also usually describe one thing. This is when you have chosen to end your employment.
• In-voluntary Leaving: This is when you are forced to leave the job, but it is outside of your control to stay or leave.
• Resignation in lieu of Termination: This sounds like you quit your job. In fact, it is the opposite. This is when the employer is going to fire you. So, instead you quit to avoid having the “fired” mark on your resume. So, for unemployment purposes, this is still a termination because the employer started the separation. This is a good thing.
What is best for you, the Worker?
1. Obviously, it is best to never lose your job.
2. Next best is for unemployment is layoff.
3. Next best is to get fired or quit in lieu of termination.
4. Least beneficial for unemployment is for you to quit.
In each of these situations of losing your job, you can still get unemployment. But as you go down the list, it becomes harder.
Some things to keep in mind when you fill out your forms to get unemployment:
• Be as truthful as you can. If you smudge it or worse lie, it can come back to haunt you. Besides that, lying is just wrong. The last thing you want to do in a hearing is have to explain what looks like a lie on your forms. I have seen this happen too many times.
• On layoffs. If the employer says, “I don’t have anything for you anymore,” he might be laying you off. But they may, in fact, be firing you. Do not say you were laid off when you know there was work for you. If the boss had work, but did not want YOU to do it, that is probably a firing.
• On firings. Some people are afraid they will not get their benefits if they are fired. That is not necessarily true. The unemployed worker does not want to say that he was fired. I have seen people who should have gotten their benefits but lost them because it looked like they lied on their application. The judge is left to think, “If they lied on their application, maybe they are lying in the hearing.”
• On quitting. When you fill out the application, you know what considerations caused you to quit. Understand that in most cases, what was happening in the stresses of your life will not get your benefits. You need to tell the agency what was wrong with your employer. What did your managers, co-workers, or employer do to you that was wrong? This is what you need to focus on in most cases.
How to protest the Determination
When you get your Determination it will obviously be for you or for the employer. Either you or the Employer can protest. But the Unemployment Agency can also decide you do not deserve benefits, even if the employer has not protested you getting them.
So how do you protest a Determination against you?
1. Make sure you are on time. You have to get your protest to them within 30 days of when they set it to you, not when you received it. It also must be to them before the deadline. Being postmarked on time is not good enough. You may want to fax and mail it both.
2. Make sure you include the following information.
a. Date
b. Name
c. Social Security Number
d. Identify the issues you are protesting. If possible, include all the issues involved by number (29(1)(a) or 29(5) etc.).
e. Clearly say “I want to Protest the Determination dated . . .”
f. Signature
g. You may want to add all kinds of other information, but you do not have to include anything else to protest.
3. Often, people have several issues running against them at once. Some people make the mistake of thinking that the issues are all the same or duplicate copies of the same determination. Sometimes, you will receive two determinations that look the same on the same day. You need to make sure that you protest all determinations that you disagree with.
4. You do not have to write your life story in protest. Keep it short and to the point. Telling them how good an employee you were in things unrelated to your firing will not help you. For example, if you were fired for stealing, it does not matter if you were on time to work every day. And the fact that you worked for the employer for a hundred years does not mean that you did not threaten somebody. If you were fired, it usually does not matter if they mistreated you in other ways. Also, unless you are asking for a Waiver of Restitution, your financial hardships do not make a difference. Keep it concise. I have seen people protest the determination in a way so that the examiner did not know it was a protest. Keep it short, direct, and avoid too many details.
5. If you want to convince the Unemployment Examiner to reverse their determination, chances are that you will need to send some kind of paper evidence that proves your point. If you just tell your story, that often is not enough. Include pictures, emails, documents from the employer, doctor notes. If you do not have any of these, just protest so you can tell your story to the Administrative Law Judge (ALJ).
When you are employed and you speak to anyone about your job, you should make a personal record of who you spoke to and what was said and when. The same is true when you file for unemployment. You really should make a record on a calendar or planner or just a note book whenever you speak to someone about your unemployment. Note who you spoke to, when, what was said, and what your reaction was. You never know when such a note could mean the difference between getting and not getting your benefits.
When you protest your determination, keep a copy with the date. Note the method of communication, fax, mail, on-line, in person.
Many people lose because they do not keep a careful personal record. Use a calendar, or note book. You never know when the question of winning will come down to a simple detail of who it was or when it was you spoke to the UIA. It takes a lot of work to document such things, but it is your life, after all. If you make the effort to keep the record, you may never need it. But I have seen too many people that have lost what they were legally entitled to because they did not jot down a simple note.
Finally, you can hurt yourself if you give too much information in your protest. Too much information becomes confusing. It can give the other side ammunition to twist around your words and mix you up.
Protesting the Redetermination
For Protesting the Redetermination, refer to the guidelines above for protesting the Determination as well as those below.
Often I find that the examiners simply reaffirm the Determination unless there are some kinds of documents submitted. But these documents need to be something other than your story. People pour their soul into retelling the same story over and over. You may not want to go through that grueling process again. I have seen the UIA reverse the Determination or the Redetermination. Most of the time, it is only because some documents other than just the story are sent in. These documents could be pictures, business records, emails, etc.
If you do not have anything except your story, you might consider saving yourself some hassle. What I mean is, do not torture yourself trying to dredge out every conceivable fact or nuance of the situation. Consider just writing a protest letter that says, “I disagree with the Determination that said I was disqualified for . . . I want to protest.” Short, sweet, and simple.
In my experience, unless you have one of those kinds of evidence mentioned above, the UIA is not going to reverse the decision in your favor anyways. Save yourself the hassle. When you get to the hearing that is when you get to lay out your story for a real person.
Once you have a Determination and then the Redetermination, if either side protests, you are going to a hearing. This is what you have been waiting, longing, yearning for. It is the chance to tell your story face to face with a real person. Just remember, you do not have to write your auto-biography to get here. Just protest the Determination and the Redetermination. Then, you get your hearing.
A word on the Burden of Proof.
When you are fired, you do not have to prove anything. For the Unemployment purposes, the employer has the burden to prove you did something wrong for you to be denied your benefits. So, when you are filling out your applications and protest, just reiterate that the termination was the Employer’s choice. It was unfair to you. You should not have been fired for this event because. . .
When you resign, you do have to prove that either you quit because the Employer did something that would force a reasonable person to quit, or you did not have a choice. So, do not tell the UIA about your problems that you were facing at home and in your family.
You need to show:
• The employer did something wrong. There was something wrong happening that was under the employer’s control. This needs to be something that would cause a reasonable person to quit.
• You complained to a supervisor about the problem. More than once is a good idea.
• You gave them a chance to fix it.
• It was still not fixed.
So as you are filling out your applications and protest or even if you are going to the hearing this is what you want to try to prove.
One more word on the Burden of Proof:
This is not a criminal trial. The level of proof needed to carry the burden is not “beyond a reasonable doubt.” The level is by the “preponderance of evidence.” If we could put this in math terms, somebody has to convince the ALJ by 51% of the proof. If the judge looks at the evidence for both sides and equally believes both sides, then the burden of proof has not been carried.
Let me put this in practical terms. If you were fired, the Employer has the burden of proof. If at the end of the hearing, the judge finds both sides equal in their evidence. You should win because the Employer did not carry its burden to prove you did something wrong. They need to tip the scale to their side to win.
If you quit, and at the end of the hearing, the ALJ finds the evidence equal between both sides, you will lose. This is because you have not tipped the scales to make the judge believe you. You have not carried the burden of proof.
You can tip the burden of proof in your favor by having another witness to the event, by documents that agree with your side of the story, pictures, or emails, etc.
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