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  1. #1
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    Mar 2017
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    Default Employer Lied to Unemployment, Benefits Denied

    My question involves labor and employment law for the state of: TX

    My question involves labor and employment law for the state of: Texas
    I recently was fired from my job after which I filed for unemployment benefits. The benefits were denied based on 'inappropriate conduct on the job' which is considered 'misconduct connected with the work'.

    During the phone interview with the lady from unemployment, it became clear that the practice manager of my former employer told her a very different story and that calling two of my coworkers a racial slur was part of why I was fired. This was news to me since I never called them anything, and it wasn't brought up when I was called into the office the morning I was fired. These two coworkers refer to themselves as that racial slur and would refer to me as their 'honorary <racial slur> because I would work up a sweat every day with the type of work I do. He also stated to the unemployment office lady that I signed a statement upon my termination, which I did not.
    There is a history of friction between me and the manager as well as the two coworkers of which I kept records. I have never been written up or reprimanded for anything and always had very positive client reviews. In the type of business, it was very common for co-workers to have 'shoptalk' in the area where clients never entered. Some general cussing/swearing was done by everyone on the regular, including the owner of the business as well as the manager who fired me. I was never given an employee handbook so I don't know if it's specifically stated that this type of talk was not allowed amongst one another. The manager did supply exurbs from a handbook to the lady from unemployment.

    The reason given to me when I was fired is a false allegation by one coworker (the morning of my firing the manager said he had 'witnesses' but only one of the two coworkers signed a statement that was submitted to the unemployment office) as well as the use of profanity (cussing). In my line of work what they accused me off is VERY serious and I do NOT take the allegation lightly at all. If I had done what they accused me of, the company should have investigated this immediately, and should have contacted the client right away. None of that happened because I know the client very well, and she contacted me the day after I got fired to make sure she knew where I would work next so she could follow me there.

    During the phone interview I admitted to the cussing simply because I did, and that was the general norm there. Nobody ever got written up or fired over that. It obviously is not a good habit, but does swearing equal 'misconduct connected with the work' and can you be fired for that with no warning? Can I request to see the evidence the manager submitted that unemployment based their decision on? Especially that signed statement I would love to see since I didn't sign anything.

    The documentation I kept of the frictions between us explains why the manager grew tired of me over the last year, and the allegation of the coworkers was all he needed to justify firing me. If I decide to appeal, would it be best to hire a lawyer to present the documentation I have?

    And thank you to the volunteers who answer all these questions, your help is much appreciated.

  2. #2
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    Mar 2012
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    File the appeal REQUEST. "The determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled," is sufficient to get you a hearing.

    Quote Quoting DIT
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    Can I request to see the evidence the manager submitted that unemployment based their decision on?
    You don't need to, nor do you want to. As a fired employee, it's the EMPLOYER that better bring the evidence to the hearing. You'll get a chance to see the evidence. Since you say it doesn't exist, it won't be a problem at your hearing. What you don't want to do is tip off your employer what they need to do at the hearing so don't ask or question why there were no documents submitted to you.

    You'll get access to a hearing file or packet. It will have really good stuff in there so you'll have a rough idea of what might happen at the hearing.

    You say you were fired because of calling your coworkers names. They better be at your hearing to testify against you, or the person at your hearing saying you said it better have heard it with their own ears, or you can admit it and do your employer's job for them. Hearsay evidence can be and should be objected to at least once. 90% of the time the judge says, "hearsay evidence is allowed, and will be given it's proper weight," but the catch is if you don't object to it at the hearing, then you can't use it as a basis for your board of review appeal if necessary.

    Quote Quoting DIT
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    If I decide to appeal, would it be best to hire a lawyer to present the documentation I have?
    Up to you on the attorney. As to the documents, as a fired employee it's not your job to prove some alternate theory for your discharge. Unless you have a letter that says you were "laid off," then what's the point in substituting one bad story that might be difficult to correctly prove at a hearing with one that you're willing to prove with documentation that you seem to sort of agree with.

    http://www.twc.state.tx.us/news/efte...l_process.html read that

    http://www.cuiab.ca.gov/Documents/forms/27Ways.pdf and particularly 11, 15, and 16.

    Remember that you don't have to prove that you didn't do what the employer said, the employer needs to prove by a preponderance of the evidence that you did. Sounds like you work for a small outfit, and the employer has a business to run. Chances are, he's not coming to the hearing nor can afford to pay the right people to come to the hearing. Things will be decidedly in your favor so long as you didn't make admissions that ruin it for you.

  3. #3
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    chyvan, thank you very much for your quick reply and the very helpful links. I read through them both and these were true eye openers about the appeal process.
    You are correct, the company is a small business. The very sad part is that I was a client there for over 10 years prior to becoming an employee and the owner has known me all this time. He knows how I work and how I treat my clients. He knows I never would do what the coworker accused me of doing and never even came to me to ask me what happened.


    Quote Quoting chyvan
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    File the appeal REQUEST. "The determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled," is sufficient to get you a hearing.



    You don't need to, nor do you want to. As a fired employee, it's the EMPLOYER that better bring the evidence to the hearing. You'll get a chance to see the evidence. Since you say it doesn't exist, it won't be a problem at your hearing. What you don't want to do is tip off your employer what they need to do at the hearing so don't ask or question why there were no documents submitted to you.

    You'll get access to a hearing file or packet. It will have really good stuff in there so you'll have a rough idea of what might happen at the hearing.

    You say you were fired because of calling your coworkers names. They better be at your hearing to testify against you, or the person at your hearing saying you said it better have heard it with their own ears, or you can admit it and do your employer's job for them. Hearsay evidence can be and should be objected to at least once. 90% of the time the judge says, "hearsay evidence is allowed, and will be given it's proper weight," but the catch is if you don't object to it at the hearing, then you can't use it as a basis for your board of review appeal if necessary.



    Up to you on the attorney. As to the documents, as a fired employee it's not your job to prove some alternate theory for your discharge. Unless you have a letter that says you were "laid off," then what's the point in substituting one bad story that might be difficult to correctly prove at a hearing with one that you're willing to prove with documentation that you seem to sort of agree with.

    http://www.twc.state.tx.us/news/efte...l_process.html read that

    http://www.cuiab.ca.gov/Documents/forms/27Ways.pdf and particularly 11, 15, and 16.

    Remember that you don't have to prove that you didn't do what the employer said, the employer needs to prove by a preponderance of the evidence that you did. Sounds like you work for a small outfit, and the employer has a business to run. Chances are, he's not coming to the hearing nor can afford to pay the right people to come to the hearing. Things will be decidedly in your favor so long as you didn't make admissions that ruin it for you.

  4. #4
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    Oct 2016
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    UI Appeal Hearings in Texas are done by phone and it sounds like the employer has put together a package for the termination. There is no reason in the world to think he won't be there for the phone hearing.

  5. #5
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    Things to remember. GET IN THAT REQUEST FOR AN APPEAL. It doesn't need to say anything, just "I disagree with this decision and request an appeals hearing." Ask for an "in person" hearing, as someone pointed out, that makes it just a tad more likely that they'll not show up. If that is the case, you still have to have the hearing, but even so, why make it convenient for them to sit in their office on the phone and lie, instead of having to come somewhere else to lie?

    Also, while waiting to have the hearing, make sure you submit the weekly certifications for benefits. If you prevail in the hearing you will be back paid only for weeks for which you have certified for while waiting for the hearing. Be sure you get this in, do the worksearches, etc.

    Secondly, abandon all your expectations about how the employer and his representatives SHOULD behave, should treat you, should tell the truth. When money is involved (it costs them when you are approved to draw unemployment benefits) and all shoulds are off the table. They will lie. They will be mean. When a hearing is held, the agency representative is supposed to pick out which one of the stories they're hearing is the more believable. This means you tell yours and they tell theirs, and the hearing officer will listen to both and will decide which one to believe. Of course it's helpful if one has more witnesses, more proof, etc. But you do not have to counter every point they make, deny everything they say that you disagree with, present a whole nother theory.

    But don't be shy about pointing out one or two things that may be in your favor. One is that your behavior was what you would've considered nothing inappropriate in the general workplace banter. You don't have to flat out say you called someone a racial slur, but you can certainly say that everything you were saying in your conversation was in line with and was something ordinary that your employer had heard, and had been the norm in the workplace conversations you'd had ever since working there. You were unaware that you had done anything wrong. You had had NO prior warnings or indications that your behavior was unacceptable. There's a huge difference between casual workplace conversation tone and walking in and suddenly going into a rage and cursing at a couple of your co workers, calling them racial slurs. THAT would've been gross misconduct, you didn't need warnings to know that that sort of behavior would be considered misconduct. That's not what you did, of course.

    Do not try to quote Texas unemployment law, object or define whether something is hearsay or relevant, or sit there silent while they say all sorts of things. Just tell your story quietly and professionally.

  6. #6
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    All first level appeal hearings in TX are phone hearings.

  7. #7
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    Okay, I'm not surprised at this, they're making it harder and harder in most states to do in person hearings. So it'll be a phone hearing. But either way, it's going to be a conference call in which both parties are given their chance to say their piece. It is easier to refer to your notes while on the phone. Tactics are pretty much the same. Keep your story of what happened succinct, stress the lack of warnings, stress that you did not have any expectation that your behavior was going to result in your termination.

  8. #8
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    It is a cost saving measure. And considering the number of hearing I have to do where the appellant doesn't even show up for the hearing a dang good one. I would be very upset if I had to show up at the local DWS office for a hearing and it was for nothing.

    Not to mention placing trained adjudicators all over the state (any state) is very cost ineffective.

  9. #9
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    And generally the state UI office will send a copy of all paperwork to both sides prior to the hearing. They will ask at the beginning to make sure all on the call have all paperwork, so the OP should be able to see what documentation has been sent.

  10. #10
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    Default Re: Employer Lied to Unemployment, Benefits Denied

    Which is not all THAT relevant. Because what paperwork has been sent should not change what the OP says very much if at all. There is the assumption that one or both of the parties are lying. When two parties are describing a situation, and their stories diverge, it's pretty obvious somebody's mistaken, someone else isn't. Or maybe it's a combination of the two,

    But whatever it was, what happened, as perceived by the OP's eyes, has already happened, regardless of whether the employer tells the same story or not. Instead of refuting or making excuses, or trying to destroy the points or claims made by the employer, the claimant should simply state what has happened, in his point of view, how long he'd worked there, what situation led to his termination, what he was told on the last day he worked, what he understood to be the company's policies or regulations on this issue, whether he had received any warnings for this behavior. I have seen warnings submitted by the employer that the claimant swore he had never seen before. Sometimes the claimant swears he was somewhere else, doing something else. The hearing officer sometimes finds this believable, sometimes not.

    In general, the way to come across as believable is to state your basic case quietly and succinctly and professionally, without drama or argument. Answer the questions that the hearing officer will ask if they need clarification about any of the issues they see and do not in any way become contentious or loud or interrupt or argue. Always be sure to work in if you possibly can that you did your job to the best of your abilities, that you did not want to leave your job, and that you did not know that your actions, whatever they were would have led to your being terminated.

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