Boss Lied to Unemployment

My question involves unemployment benefits for the state of: Hawaii

I was terminated for clocking out at my own discretion, as instructed by my manager. I worked in a restaurant, which typically operates with a flexible schedule and the understanding that on particularly slow/low sales days, one or two people might get sent home sooner than they expected. Standard industry practice that can really vary your monthly earnings, but it comes with the territory.
I was a senior employee and was told to "go ahead and leave if things are slow and it looks like the new girls are all caught up." Meaning do my work, offer help to others afterward and then announce that I am leaving. I did exactly that.
The owner's son is constantly hung over and must not have heard me speaking loudly about my leaving, nor did he notice me cleaning and restocking my station (we work within 2 feet of each other). He was still busy making a lasagna when I clocked out, and then when I said good bye to everyone, he threw this little tantrum about how he had wanted to leave really soon, and how I had to stay so that he could leave.
I told him I clocked out already and he called the owner, his father, and presumably twisted the circumstances to make me sound as though I had done something wrong. After he got off the phone, he laughed and said, "go ahead and leave, fine." So I left.
Next day, I text my boss because I am concerned with what his son may have said in anger. He doesn't respond until the next day to say, "I am sorry it has to be this way... really wanted you to stay here... have to let you go because I need people I can depend on."
His response to Unemployment was that I was scheduled from 8 am to 3:30 pm, which is NOT true, there has never once been a written schedule anywhere and at that, there has never been a suggested "clock-out" time. Every day that I worked there was decided on an as-needed basis; I had been taking hour cuts to supply more time to new hires ! It was NOT to my benefit to clock out at 12:30 if I were arbitrarily scheduled until 3:30. There were very few times I ever stayed as late as 3:30.

Does my ex-boss have to prove the existence (or my understanding) of any sort of schedule ?
(I have all the text messages in which my schedule was typically dictated to me and I want to appeal on grounds that I was following Manager orders when I clocked out and was fired for a protected reason, a different story altogether.)

Is lying to Department of Labor to avoid a claim a form of fraud ?
(I am also pursuing him through the same department for unpaid OT wages)

Is it his burden to prove anything at all or can he just outright lie to them with no consequence ?

I thought I already answered these questions.

Does my ex-boss have to prove the existence (or my understanding) of any sort of schedule ? No. Your ex-boss does not have to prove the existence of any sort of schedule. He does not have to prove your understanding of any sort of schedule. He does not have to prove, or have, any sort of schedule or anything with regards to any schedule. There are no laws anywhere in the US regarding how an employer schedules his employees. You are wasting your time trying to prove any kind of illegality with regards to schedules or the lack thereof.

Is lying to Department of Labor to avoid a claim a form of fraud ? No. The UI office takes it for granted that either the employer, the employee, or both will be lying through their teeth and takes that into consideration.

Is it his burden to prove anything at all or can he just outright lie to them with no consequence ? You tell your story, he tells his and the UI adjuster decides whose story he likes best. However, in most cases, the employee will be approved for unemployment unless the employer is able to show misconduct on your part. To reiterate; employers lie to unemployment every day of the week. So do employees. The UI office knows this and is not concerned about it.

Rephrasing the question doesn't change the answers. Knock it off.

Thanks again, ya know I was trying to be courteous by re-posting a finer-tuned question in the appropriate forum, not trying to burden any of you by forcing you to click on my issue.
I genuinely believed that the system investigated where there was doubt, required evidence during conflict and rewarded honesty with consideration. My bad.
Missy, unless your ego lurks in every square inch of these forums, I'd ask that you behave like an adult and scoot over a little for those of us that need and want to learn. The role of a teacher should be a gracious one, though I do note that, like me, you are a Certified Researcher, so I'll take it with a grain of salt :)

I WORK here, nitwit. It's my job to enforce the forum rules, and you broke 'em. I'm not your "teacher" - I presume you read English, given that you're posting here, so where was the disconnect between you and understanding that the rules apply to you?

And while I don't work here, I spent quite a little time putting together a complete and detailed answer to your first post, and I don't appreciate having it brushed off as if asking the questions a second time will give you an answer you like better.

§383-142 Employing units. Any employing unit or any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining a subject employer or to avoid or reduce any contribution or other payment required from an employing unit under this chapter or under the unemployment compensation law of any state or of the federal government, or who wilfully fails or refuses to make any such contributions or other payment or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, or who wilfully fails to establish, maintain, or preserve records of all individuals in the employer's employ that show the total amount of wages paid for each pay-period to each individual while in the employer's employ, or who wilfully fails to establish, maintain, or preserve any other record, as required by this chapter or any rule or regulation adopted hereunder, shall be charged with a misdemeanor, and subject to a fine of not more than $10,000; and each false statement or representation or failure to disclose a material fact, or failure to establish, maintain, or preserve records, and each day of such a failure or refusal shall constitute a separate offense. [L 1939, c 219, §14(b)(3), (4); am L 1941, c 304, §1, pt of subs 36; RL 1945, §4289; RL 1955, §93-141; HRS §383-142; am L 2005, c 114, §2]

Cross References : Perjury and related offenses, see §§710-1060 to 710-1068. Tampering with government records, see §710-1017.

You two are both egomaniacs. Thanks for wasting my time and not being familiar with the laws in my State.

I expect that, had cbg had no context for your question, she might have referenced the statutes of that nature that exist in many states and, to one degree or another, potentially criminalize certain intentional fraud by an employer in its communication with a state agency. She would have likely noted that in your state a similar statute criminalizes the receipt of benefits by a worker as the result of a fraudulent misrepresentation. And she would likely have noted that criminal charges under those statutes are almost unheard of, that most statements that a worker characterizes as a "lie" are not going to meet the requisite statutory threshold of being provable, deliberate misrepresentations or factual omissions, and that (as she did tell you) the normal resolution is that the hearing officer assumes that one side or the other is not telling the whole truth and rules based upon which side's version of events is more credible.

This type of statute is not about policing squabbles between workers and their supervisors, and even if a hearing officer ended up believing that a supervisor gave you permission to leave then lied to your employer, that in no way supports a contention that if the supervisor sticks with that story the supervisor is "to prevent or reduce the payment of benefits to any individual entitled thereto" - the story came about long before unemployment was even an issue. More to the point, in your case the hearing officer concluded that the supervisor's account was more credible than yours.

If you want an attaboy for finding a statute that will not result in charges against your employer, to declare that cbg was "wrong" in her broad statement that an employer's lie to deny a claim is not a form of fraud, well, way to go. At the same time had you followed the forum rules, or posted facts that implicated that type of statute, you might have received a more patient and nuanced answer, potentially mentioning that type of statute with the caveat that there is no realistic chance that anybody is going to try to apply it to your case.

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Quoting dmitridown

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I was terminated for clocking out at my own discretion, as instructed by my manager.

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At various times in your narrative you speak of the owner, your manager, your supervisor and the owner's son, in a business with less than fifteen employees. Given that the owner's son is paid considerably more than you and was in a position to give you direction on the date you left early, it seems reasonable to infer that he was at a minimum your shift supervisor on that date. You could help us out by being more clear.

One way or another, you confirm in your narrative that you did not have express permission to leave on that date and, whatever the standing instruction about leaving early when the restaurant appeared to be overstaffed, the owner's son did not year you announce that you were leaving and instructed you that you were not to leave. You make clear that he had enough supervisory authority over you that you did not immediately leave the workplace, but instead argued with him and complained that you had already punched out.

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Quoting dmitridown

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I was a senior employee and was told to "go ahead and leave if things are slow and it looks like the new girls are all caught up." Meaning do my work, offer help to others afterward and then announce that I am leaving. I did exactly that.

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The failing here being that you didn't make a proper announcement, thus triggering a conflict with the owner's son who didn't hear you say you intended to leave early.

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Quoting dmitridown

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The owner's son is constantly hung over and must not have heard me speaking loudly about my leaving, nor did he notice me cleaning and restocking my station (we work within 2 feet of each other). He was still busy making a lasagna when I clocked out, and then when I said good bye to everyone, he threw this little tantrum about how he had wanted to leave really soon, and how I had to stay so that he could leave.

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In other words, the owner's son did not hear you declare that you were leaving work early, and explicitly instructed you to remain at your station.

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Quoting dmitridown

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...and he called the owner, his father, and presumably twisted the circumstances to make me sound as though I had done something wrong. After he got off the phone, he laughed and said, "go ahead and leave, fine." So I left.

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Is that the story you gave to UI - that you believed that the owner's son was giving you after-the-fact permission to leave after you refused to punch back in and return to work? It would be perfectly reasonable for the hearing officer to hear your account and conclude that you were being released from the shift due to your insubordination and refusal to clock back in, not because the owner's son had decided after-the-fact to give you permission to go home.

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Quoting dmitridown

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Next day, I text my boss because I am concerned with what his son may have said in anger. He doesn't respond until the next day to say, "I am sorry it has to be this way... really wanted you to stay here... have to let you go because I need people I can depend on."

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Why would you have been concerned about the conversation? You previously suggested to us that you didn't hear any part of the conversation, and implied that you interpreted the owner's son's comment at the conclusion of the conversation as permission to leave work early. Your concern about what the owner's son may have said to the owner is evidence that to a hearing officer might suggest that you knew you were not entitled to leave early and had created a conflict by failing to clock back in and return to work.

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Quoting dmitridown

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His response to Unemployment was that I was scheduled from 8 am to 3:30 pm, which is NOT true, there has never once been a written schedule anywhere and at that, there has never been a suggested "clock-out" time. Every day that I worked there was decided on an as-needed basis; I had been taking hour cuts to supply more time to new hires ! It was NOT to my benefit to clock out at 12:30 if I were arbitrarily scheduled until 3:30. There were very few times I ever stayed as late as 3:30.

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Is this the "lie" you are trying to pin on your employer - that although you are given a schedule of hours by text message each week, you're not aware of a physical schedule hanging on the wall somewhere and that you have no scheduled hours? When you say "I have all the text messages in which my schedule was typically dictated to me...", you admit that there was a schedule. Further, you spoke in your other thread about being promised the dinner shift, of leaving your shift early, complained of losing your "two best shifts" and that your other shifts were altered after an injury. How do you imagine that you can have scheduled shifts if there's no schedule? More than that, you stated in your other thread, "I checked with all my co-workers as to their comfort level with my leaving early, they all agreed, and I clocked out." If you don't believe that you were scheduled to work past the time you left, we wouldn't be talking about your "leaving early". You complain that it "It was NOT to my benefit to clock out [early]" but as you admit leaving your shift early that was obviously a price you were willing to pay.

In short, you admit to having scheduled hours and you admit that on the date in question you were scheduled to work until a later time (be it 3:30 or some other time) and that you left your scheduled shift early. You're confirming that your employer told the truth.

Was there some other, actual lie you believe is relevant to your situation?

The owner's son had no authority over me whatsoever, I didn't mean to imply that just because he is the owner's son that he was issued any ability to request anything of me. Nor did I take his grumbling "fine go ahead, leave" statement to be a permission; I saw it as him accepting that I was leaving and there was nothing he could do about it except cry like the over-privileged druggie brat that he is. And I absolutely made a proper announcement, the work space is small and I was blatant about cleaning my station and announcing my clocking out. Three other employees will attest to this fact, as I approached each one to ascertain whether or not they needed extra help. They were aware and in favor of me leaving, and the clock-in machine is very loud, you can hear it from anywhere in the building. Like I said, he must have been in a drugged stupor, he either chose to ignore me, or he was pretending to be surprised as I said good bye for the day, or maybe he was hallucinating the whole time. Who knows. It was conjecture on my part.
I do not know or suspect or care if the supervisor (whom I have also referred to as manager) lied to the owner about anything. I am certain that the owner lied to Unemployment (which would impede my right to a proper determination of eligibility).
When I say schedule, it is for lack of a better way to describe being almost perpetually on-call. There existed no hour-specific schedule beyond a dialogue in text, which was limited to the time of arrival and never a suggested time to leave, however I was aware of the fact that I typically worked certain days of the week, but that is not the issue. The owner is saying I knew I was supposed to be there until 3:30, which is a lie, a lie preventing me from benefits that would at least pay my car insurance and phone bill so I can pursue new employment. But I have nothing right now, which I cannot for the life of me believe is something I brought upon myself.
When I admit to leaving early, please remember that I was instructed to do so, and that I was actually informed by the owner that the addition of all the new hires would likely affect my hours, in that I, as a senior employee, should sacrifice hours so that new hires could gain adequate training time (thus allowing the fruition of the dinner shift, to my ultimate benefit, so clocking out early had become routine, records show it and I had come to expect it, with all the over-staffing.
The manager left extremely early the same day I also left "early". Early, in this sense, means leaving earlier than anticipated, NOT at a specific time. If the restaurant were slamming busy, obviously, the manager and myself would have a duty to stay clocked in. Fact remains that I was never told to stay until 3:30, and that was the basis for contesting my claim.
I do apologize if I'm not using the proper terminology or not being clear enough.

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Quoting dmitridown

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The owner's son had no authority over me whatsoever, I didn't mean to imply that just because he is the owner's son that he was issued any ability to request anything of me. Nor did I take his grumbling "fine go ahead, leave" statement to be a permission; I saw it as him accepting that I was leaving and there was nothing he could do about it except cry like the over-privileged druggie brat that he is.

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Your attitude stinks. I suspect that's part of the reason you were fired.

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Quoting dmitridown

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And I absolutely made a proper announcement, the work space is small and I was blatant about cleaning my station and announcing my clocking out. Three other employees will attest to this fact, as I approached each one to ascertain whether or not they needed extra help. They were aware and in favor of me leaving, and the clock-in machine is very loud, you can hear it from anywhere in the building.

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You can adjust your story all you like. The fact is that you have told us that you did not speak to the owner's son, and you have told us that he may not have heard you. You can layer on stories about how he may have been stoned, hallucinating, whatever - it doesn't change your original story, that you did not clear with him that you could leave. If in fact you went around speaking to everybody else in the store to make sure that they were okay with you leaving - "I approached each one to ascertain whether or not they needed extra help" - your story that the owner's son knew loses credibility as you deliberately chose not to approach him.

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Quoting dmitridown

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I do not know or suspect or care if the supervisor (whom I have also referred to as manager) lied to the owner about anything.

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Either a supervisor/manager was there and gave you permission to leave, nor no supervisor/manager was there and thus no supervisor/manager cleared you to leave.

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Quoting dmitridown

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I am certain that the owner lied to Unemployment (which would impede my right to a proper determination of eligibility).

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Quote the exact statement by the owner that you allege to be a lie, and tell us why it is a lie.

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Quoting dmitridown

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When I say schedule, it is for lack of a better way to describe being almost perpetually on-call. There existed no hour-specific schedule beyond a dialogue in text, which was limited to the time of arrival and never a suggested time to leave, however I was aware of the fact that I typically worked certain days of the week, but that is not the issue.

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You receive specific hours by text message. You describe scheduled shifts. And while restaurants can be a bit loose in the ending time of shifts, letting people go early when things aren't busy or keeping them on for extra hours when they're swamped, there's no restaurant on the planet that is unconcerned about whether its employees are present in sufficient numbers to serve its customers during open hours.

If you tried playing games like that during the unemployment hearing, it would help explain why your story was not deemed credible.

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Quoting dmitridown

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The owner is saying I knew I was supposed to be there until 3:30, which is a lie, a lie preventing me from benefits that would at least pay my car insurance and phone bill so I can pursue new employment.

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You showed your texted schedule to the hearing officer, and presented your argument that you were free to walk off the job whenever you decided that the other workers were okay without your finishing your shift. The hearing officer didn't believe you. You admitted that you were clocking out early - and you can't "leave early" unless your shift has not ended - so the owner's supposed "lie" had no material impact on the denial of your benefits. Whether the officer thought the expectation was that your shift continued until 3:30 or until 12:31, it was the fact that you admitted to leaving early that resulted in your being denied unemployment, not the exact time your shift was supposed to end.

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Quoting dmitridown

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When I admit to leaving early, please remember that I was instructed to do so, and that I was actually informed by the owner that the addition of all the new hires would likely affect my hours, in that I, as a senior employee, should sacrifice hours so that new hires could gain adequate training time (thus allowing the fruition of the dinner shift, to my ultimate benefit, so clocking out early had become routine, records show it and I had come to expect it, with all the over-staffing.

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You argued that to the hearing officer, and the hearing officer did not find your claim to be credible. You certainly have no basis to claim that you were specifically instructed to leave early on that specific date, and either you weren't able to substantiate that you had been given clearance to leave early whenever you decided that it was appropriate, or the facts presented to the hearing officer left him able to conclude that whatever standing authority you had was not sufficient to allow you to leave early on that date.

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Quoting dmitridown

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Early, in this sense, means leaving earlier than anticipated, NOT at a specific time.

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If it is anticipated that your shift extends past the time you "leave early", then you're scheduled to work past the time you "leave early".