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  1. #1
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    Apr 2012
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    Default Unemployment Appeal Hearing in Massachusetts

    My question involves unemployment benefits for the state of Massachusetts. I'm an attorney in California, but I have no experience with unemployment benefits law.

    My brother was recently fired from his job working in a food market in Massachusetts, allegedly for coughing near food. He applied for and received unemployment benefits, but his employer has filed an appeal. A hearing is scheduled for April 23. The employer has filed a 23-page document that I haven't seen yet (my brother is sending it to me) in which I believe it argues that my brother was fired for cause. According to my brother, a customer complained that he coughed near food he was serving her and demanded that the store fire him.

    My brother claims that during the course of his employment, management at the market where he worked repeatedly chastised him for taking time off from work when he was sick or injured, even when he produced a letter from his treating medical provider indicating the nature of the illness or injury and the date on which he was seen by the medical provider. I think my brother could argue that he was constructively terminated in the sense that management created a culture in which it was not okay to call in sick, and that he showed up for work on the day he was fired even though he was sick because he believed that he would be fired or at least discliplined if he had called in sick that day.

    I have a few questions about the proceedings. I think my brother is entitled to submit a written response before the hearing in which he rebuts the claims and arguments made by his employer in its 23-page document challenging his entitlement to unemployment benefits. He says that the notice of hearing he recieved does not provide for the filing of a written response, but that seems a little odd to me. Also, what sort of evidence would he be required to produce in support of his rebuttal. Any record of discipline resulting from his having called in sick in the past is in the hands of his employer. In addition, is he entitled to ask the emplloyer to produce the customer at the hearing so that he can (for lack of a better term) cross-examine her about her complain to the employer? Finally, I'd appreciate any thoughts on his planned defense.

    Thank you in advance for any thoughts or insight you can offer.

  2. #2
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    Default Re: an Appeal Hearing in Massachusetts

    I'm not a lawyer, but you don't want to submit a written rebuttal because that just tells the employer what evidence they need to manufacture for the hearing.

    The burden is on the employer to PROVE misconduct.

    Usually, an HR flunky shows up to these tribunal hearings. They have no first-hand knowledge of what happened that day. There will be no complaining customer testifing. The case will rest on hearsay. Hopefully, when discharged, he said, "no reason given" on the form.

    You don't want to tell anything because it works like this - what you say to help yourself will be found "uncredible" by the hearing officer, and anything you say that confirms the employer's statements will make those "credible." What the hearing officer finds in the "findings of fact" become the facts that you have to live with at the board of review appeal.

    Therefore, spend your time training your brother to recognize hearsay, and have him object. All affidavits should be objected to on the grounds he can't cross examine.

    And most of all, coughing on someone's food is NOT misconduct. It was easily remedied by preparing the customer a new plate. The employer is probably going to try to say "he was repeatedly warned" and submit a stack of warnings, but the author of the warnings will not be there to authenticate them. Chances are his boss never saw him cough on the food but just took the word of the customer. That's not proof of anything.

    http://www.masslegalservices.org/une...tadvocacyguide Here's an advocates guide to help you out

    http://www.masslegalservices.org/con...tives-handbook this will help you get a grasp on misconduct under "1300"

  3. #3
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    Default Re: an Appeal Hearing in Massachusetts

    Here's a "HR flunky" from MA chiming in here:

    I tend to agree that your brother will most likely prevail in the hearing. But I'm interested in his belief that his termination was based in his absence record. Do you know how often he was out, for how long, the nature of the absences and the length of time he worked for this employer? Was he ever warned about his absences? I'm going somewhere specific with this.

  4. #4
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    Default Re: an Appeal Hearing in Massachusetts

    Thanks for the responses.

    chyvan: Thanks for the advice about not submitting anything in writing. I've told my brother that his employer has to prove his nonentitlement to benefits, and that he should ask the representative at the hearing to produce the witnesses who complained about him. He says his employer takes these hearings seriously and never loses, but the example he gave me was of someone who admitted to lying to his employer about his absences from work. Anyway, the record I just received includes two warnings about his abrasive conduct with customers written by my brother's supervisor that my brother signed, so he probably can't question the authenticity of those earlier complaints. One of them informs my brother that any further incidents will result in the termination of his employment. He also signed the complaint that resulted in his termination. This incident involved customers complaining that he "looked like he should be in a hospital" and was coughing on food as he was scanning customers' items at the checkout counter. I imagine he could still argue that he came to work that day because previous incidents concerning his health led him to believe that his employment would be terminated if he called in sick.

    cbg: Thanks for your questions. My brother has told me that when he needed to miss work for doctor visits or because he was ill or injured (he has back problems), his employer doubted his claims that he was ill, shredded notes from his doctors that he produced for his supervisors instead of placing them in his record, and gave him the impression that missing work for what they believed was his "excuse" of health issues would not be tolerated. He had worked for his employer for approximately 10 years, and the incidents he told me about took place as follows:
    8/20 2008 - annual physical
    8/21, 8/22, 8/24, 8/25 08 - visit with phsyican for head pain and fever, visit to lab for blood work and testing, ER visit (all day for CT scan and diagnosis of sinus infection), and followup visit with EN&T doctor.
    2/15 - 2/20 2010 - flu
    2/21, 2/22 -clinic and ER visit. prescription to stay home until 2/26. He claims that on 2/22, his supervisor asked him to bring a doctor's note that day.
    unknown date - developed stomach flu while at work (including vomiting) and was told to "tough it out."
    The warnings he received were not about his absences but about his interactions with customers at the check-out stand. He allegedly complained to them about his job and his health, and he was abrupt and unfriendly. Please let me know what you think.

    Thanks again for the responses.

  5. #5
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    Default Re: an Appeal Hearing in Massachusetts

    Unfortunately, I think that your brother missed a great many days of work for reasons that were not protected by FMLA, and that even if the 2010 visits WERE covered by FMLA (which is possible but not definite), since he was not fired until more than two years after the fact he would have an extremely difficult time making the connection.

    I had wondered if he might have a claim for a FMLA violation, but I truly don't see it now that we have the details. I do anticipate that he will prevail in his unemployment claim.

  6. #6
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    Default Re: an Appeal Hearing in Massachusetts

    Look at those warnings your bother signed. Quite often the text above his signature is nothing more than an acknowledgment that he received the warning, not that he's admitting guilt to the listed offense. Your brother can absolutely deny everything written on them. He need say no more than, "I signed the acknowledgment because not doing so would be misconduct. It does not mean that events described in them are true. That's something the employer has to prove."

    He should not ask about having the witnesses. That is the employer's task to bring them. He just needs to object to anyone testifying that does not have first-hand knowledge. The second the employer says, "A customer told me. . ." Your brother needs to shut that down.

    Hopefully, your brother looks and sounds healthy at the hearing. You don't want to be eligible for no misconduct, only to have him declared not "able and available."

  7. #7
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    Default Re: an Appeal Hearing in Massachusetts

    Quote Quoting cbg
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    Unfortunately, I think that your brother missed a great many days of work for reasons that were not protected by FMLA, and that even if the 2010 visits WERE covered by FMLA (which is possible but not definite), since he was not fired until more than two years after the fact he would have an extremely difficult time making the connection.

    I had wondered if he might have a claim for a FMLA violation, but I truly don't see it now that we have the details. I do anticipate that he will prevail in his unemployment claim.
    I understand what you're saying. My point was not that the employer was violating state or federal law permitting sick time but that the employer created an atmosphere in which it was basically telling my brother that he would be fired if he called in sick instead of whowing up for work. He may want to argue that he would have preferred to stay home because he had a cough but believed -- because on previous occasions, his supervisor had doubted him when he called in sick or refused to let him go home when he was sick -- that he might be fired if he didn't show up for work that day.

    Thanks for your replies. Below is a portion the email I sent to my brother. I also sent him the links to Mass Legal Services website that were provided.

    "Here is some information about the hearing and some suggestions for what you should do to prepare for the hearing and what you should do during the hearing.

    -- Because **** is contesting benefits by claiming that you were fired for cause, **** has to prove that it had a good reason for firing you. The papers **** submitted indicate that you were written up a few times for inappropriate behavior (the incidents involved talking to customers about your own problems and asking a customer to help you remove her groceries from a shopping cart), and you were given one or two warnings that if that conduct happened again you would be fired. However, **** did not state that it fired you for the conduct you had been warned about. Instead, it claimed that customers complained that you were coughing on their food at the checkout stand. So without you saying a word, **** has to prove that you were coughing at the checkout stand and that you know you weren't supposed to. In that way, the earlier incidents may not be that relevant, although the hearing officer may ask you about them.

    -- Because **** has to prove its case, the hearing officer will probably ask the **** rep questions first and ask any questions he has for you after he is finished questioning the **** rep. Let the **** rep talk. You will have your chance to talk when the **** rep is finished.

    -- Because of the nature of the earlier incidents you got written up for, it's very important that during the hearing you DO NOT interrupt the **** rep during the hearing, or raise your voice or show anger in any way when you're talking. If you do, you'll be demonstrating the kind of behavior that you were written up for, and it'll make ****'s claims about your behavior in the earlier complaints more believable. If you interrupt or yell, you will help **** win its appeal.

    -- While the **** rep is talking, make notes of the things he/she says that you disagree with. This will help you remember what the **** rep said if you want to dispute what he/she said when it's your turn to talk. Also, listen to the type of questions the hearing officer is asking the **** rep. That may help you figure out what the hearing officer is interested in.

    -- When it's your turn to talk, first answer any questions the hearing officer has for you. The hearing officer may ask you about the coughing incident. If he does, you might consider saying something like "I would have preferred not to come to work that day because I had a cough, but because of earlier incidents where my supervisor didn't believe me when I told him/her I was sick, I didn't think it would be okay to call in sick that day." Then you can describe the incidents you mentioned to me where your supervisor didn't believe you when you needed time off for health reasons or didn't let you go home when you were sick. If you tallk about these incidents, use a very calm voice and speak slowly and clearly. Don't sound angry. Also give as much detail as possible; specifically, names and dates, especially the name(s) of the supervisor(s) who required you to prove that you were sick by bringing in a doctor's note. Also tell the hearing officer that because you're aware of the sanitation problems that can result from coughing, you intentionally coughed into your sleeve to avoid coughing on customers' food.

    -- If the hearing officer asks you about the other incidents you got written up for, tell your side of the story in a calm, quiet voice. Don't sound angry or defensive. If the hearing officer asks you why you signed the earlier warnings, simply say that your signature does not mean that you agree with ****'s version of the event and that you were only acknowledging that you were being written up.

    -- If the hearing officer permits you to question the **** rep, there are two questions you may want to ask. (1) Did he see you cough while you was working on January 26? (2) Does **** have a formal policy for what an employee should do if he or she has to suddenly cough or sneeze? (You don't have to say at the hearing what I'm going to say next, which is that if the **** rep didn't see you cough, he doesn't know for a fact that you coughed on the food instead of into your sleeve, and you're suggesting, without saying it, that maybe your version of events -- that you coughed into your sleeve to avoid coughing on customers' food -- is what actually happened. Remember, **** has to prove misconduct, and you only have to create doubt that the misconduct occurred."

    Any thoughts? Thanks again!

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