Appealing for the Second Time After Being Denied UI

[RetroBrad]

My question involves unemployment benefits for the state of: Kentucky

I apologize for those who clicked on this and now see that they have a novel in front of them. If you don't have the time to read you can skip down to the questions I have. If not that's ok too I just thought I'd give my backstory on the unemployment case so some of you might have a bit of insight on the situation.

I worked for a large telecommunications company for four years. In late January they fired me for job abandonment. The letter I was sent stated that I had not followed proper call in procedure or reported back to work after an absence.

Here is my side of the story. In the second half of 2011 I missed a lot of work. During my time working for the aforementioned telecommunications company I hurt my neck and my back. I worked through the pain for quite a while but starting in July of 2011 I started to take time off. I followed our attendance policy perfectly and filed claims for FMLA for each absence. Each absence was then approved by my doctor. I received no attendance violations for any of the time missed. Unfortunately I continued to have severe back pain for the rest of the year and missed a lot of work off and on. At the end of December the pain was more than I could handle and I decided to not rush back to work until I was able to get a second opinion from another doctor and possibly look into surgery. I missed the last few days of December and was still at home halfway through January. At no time was I getting paid for my days away from work and I followed our attendance policy the same then as I had always followed it before.

On January 10, my wife had a small routine surgery and I let my employer know that. They took it as I was making up excuses as to why I was missing work. I was only being honest with them and letting them know that at that point I was attempting to get back to work as soon as I had a few more days rest and my wife was able to heal from her surgery.

A few days later I was contacted by a co-worker explaining to me that the word in the store was that I was fired. I called my manager but didn't get an answer. I left a voicemail asking about this and sent him a text message. The next day I started getting calls from numerous co-workers stating that management had let them all know that I had been fired and they even placed security in the store. Management let them know that security was in the store to keep me from coming in. At this point I was starting to feel a bit better with my neck and back and was expecting my wife to be ready to go back to work in a few days but I didn't know if I even had a job to go back to. Instead of going into my work I called them everyday and text them everyday but never got a response. I regret not going in and asking them what was going on but I didn't want to be thrown out by security and I was still having pain in my neck and back. So I did the only thing I could think of and called them every single day for nearly two weeks. At the end of those two weeks my voicemails turned into me begging them to tell me what was going on. I wanted to come back to work. I wanted to know SOMETHING! They refused to get back with me.

Near the end of January I decided that calling/texting them was not going to be useful at all. The biggest reason I decided to start going a different route was because I received my last paycheck. It was my vacation hours that I had no taken yet. At that point I knew I was fired. I then put everything in the hands of our union and contacted upper management and HR hoping that maybe one of them could step in and help me. Three days later I received a letter in the mail stating that I was fired for job abandonment. I desperately needed that job. There is little else in this town that payed as well as that place did.

Throughout my time working for that company I had been retaliated against numerous times for standing up to them. They repeatedly liked using racial slurs and made sexual comments about my wife. One manager even threatened to kick my ass in the stock room. It got to the point where I made a few ethics calls. After each ethics call they didn't leave my side. They would follow me with clip boards just waiting for me to make a mistake. The harass was more than I ever though I could deal with but thankfully I was able to. After all that time of putting up with everything I did the last thing I expected to have happen was me leave that place under any circumstance other than me leaving on my own. I followed the book on everything and then I let them trick me into thinking I was fired to only fire me after believing them.

They denied my original attempt at unemployment and then this past week I was denied unemployment again by the referee in my appeal case. Everything that I explained to them made me sound so good. I had so much evidence. My employer couldn't answer any question I asked him. Everything was going in my favor. I could not believe I didn't win.

Now I have the chance to appeal that decision. I have a few questions about it.

1. Who does the burden of proof lie on? Is it up to me to prove that I didn't quit?

2. Does it matter that they had retaliated against me multiple times for ethics calls that I had made and that they fired me a month after I made my last one?

3. Is there any evidence that could be presented in this appeal that was not presented in my first appeal hearing? I know that I won't get to talk to anyone but I wondered if I could send in more information. The only reason I want to do this is because I started having panic attacks around the time of my first appeal hearing (It ended up being two hearings total because of time) and there were things I forgot.

4. I was denied subpoena requests for very important documents that could have proven my case without a shadow of a doubt. Is there anything I can do/say about that in my next appeal? I wanted a copy of my pay check stubs to prove that they sent me my last check before they fired me. The referee said the request would be overburdonsome to the employer.

5. There were documents submitted in the appeal hearing that I never got a copy of. Because of the medicine that I'm on (paxil, buspirone, klonopin) for these panic attacks I couldn't remember exactly what I had requested and what they were talking about. I found out afterwards that I had agreed to have a document added to evidence that I had not even requested nor received. Is there anything that can be done about that?

6. I know these people have hear every excuse in the book but does my panic disorder/anxiety plus medication and effects of the two have any impact or bearing in this case? Should I even bring it up in my appeal? I had my first appeal hearing on May 4th and I went to the ER for the first time that night. Thankfully it was just panic and not the heart attack I originally thought it was

7. After the hearing was over (the second one) I went outside to get some fresh air. At that time I realized that FedEx had dropped off a package that contained some of the documents I had wanted to have subpoenaed. The company purposefully (my guess) sent me those documents on the day of the meeting so I could not have them submitted. Is there anything I can do about that?

8. My manager lied many times in the appeal hearing. The referee did not ask for any evidence when I told her that not only was he lying but that I had proof. Is there something I can do about that?

9. When I was originally denied my unemployment my former employer said that I was fired due to attendance. A week later that form was voided and they sent in another one stating that I had actually been fired for job abandonment. Is there anything I can do about that or is the employer allowed to change their reasoning for firing me as many times as they want until they find one that works best for them.

10. Is there anything else that you can think of that I should know before writing and sending this appeal?

If you have any questions at all please feel free to ask. I could use all the help you can give.

[cbg]

I have a couple of questions before I attempt to answer yours.

1.) How much time, total, did you miss between January of 2011 January of 2012?

2.) What was the last day you actually worked?

3.) Since you mentioned FMLA I'm operating on the assumption that you submitted medical verification for the protected medical leave. When did the doctor say you would be able to return to work, and how much time off did he say you would need? Be as specific as you can.

I'm going somewhere very definite with these questions.

[RetroBrad]

I have a couple of questions before I attempt to answer yours.

1.) How much time, total, did you miss between January of 2011 January of 2012?

2.) What was the last day you actually worked?

3.) Since you mentioned FMLA I'm operating on the assumption that you submitted medical verification for the protected medical leave. When did the doctor say you would be able to return to work, and how much time off did he say you would need? Be as specific as you can.

I'm going somewhere very definite with these questions.

1.) I am not sure of the exact amount of time I missed between those dates however, I do know that I did run out of FMLA in early December.

2.) The last day I worked was December 28, 2011.

3.) On the paperwork the doctor wrote that my pain was chronic and that I was approved for all absences for a six month period. The six month period starting in October, 2011 and ended in February, 2012. I ran out of the FMLA hours that I was allowed to use in early December so at that point I started to accumulate attendance points. I had 4.5 attendance points and per our union agreement we had to reach 7 attendance points to be fired.

[cbg]

The problem is that once you are out of FMLA, the doctor has no authority to approve absences. Once you are out of FMLA, the company has no legal obligation to hold your job, regardless of the necessity for additional medical leave. A doctor's authorization carries legal weight ONLY for FMLA.

As far as the law is concerned, your termination was legal. You will need to work within the union as regards any violations therein.

But as far as UI is concerned, are you currently able to work regularly and if so, for how long has this been the case?

[RetroBrad]

I was under the impression that I could request an extension to my FMLA. I was told that to do so I'd have to return to work and then file for the extension. I'm not sure if that is true or not but I was taking care of myself at the time and focusing more on that than I was what was to come next.

I've been combing through the union agreement more lately trying to find something in there. The contract is very vague and I'm hoping someone at the district office can better explain what some of this stuff means to me.

I am currently able to work regularly. I started feeling a lot better towards the end of January/beginning of February. What I have gathered from that is the awkward position I had to stand while working (I'm very tall, the keyboard and monitor is very low) made my neck and back worse. All this time away from my former employer has been better for my physical health. Around the time that my management let my co-workers know that I was fired I was starting to feel well enough to come back. However, it was at that point they stopped any contact with me, wouldn't tell me my schedule, put security in the store, sent me my last paycheck and, like I said before, told my co-workers I was fired.

[cbg]

There are no provisions in the FMLA statute for an extension. Once you've used 12 weeks in a 12 month period, that's all there is. Your employer may opt to provide more leave than the statute requires if they choose to, but they are not required to and the time is not protected until you have returned to work and have re-qualified under the statutory provisions, which means at a minimum working at least another 1,250 hours. Depending on what method your employer uses for determining the 12 month period (there are several that are permitted) it might also include working a specific length of time. But just coming back to work and applying again is not sufficient for protected time.

ETA - somehow my message got messed up. Sorry. The rest of the message was supposed to ask how often you checked in with your employer between December 2011 and January 2012?

[RetroBrad]

I was in contact with my employer every single scheduled day missed.