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

Hello all,

First time poster after reading many threads and am in a bit of a weird situation but am sure precedent exists.

I was laid off from a corporate job in New York City on 11/28/16 and began collecting unemployment after many delays on 1/12/2017. In an effort to get back to work, I started training to wait tables at a restaurant in New Jersey on 12/22/2016. After a handful of training shifts, it became clear this was a hostile working environment. This culminated in the owner telling me to “Learn the f****** menu” after I listed a patron’s food allergies on a kitchen ticket. I responded that I would not be spoken to that way and he said that then this was not going to be a good fit. I called him at the end of my shift and let him know I’d left my uniform behind.

Because I had been paid on a check for my training shifts on 12/29/2016, the Dept. of Labor sent me a letter asking if I was employed again because they saw a payment from this employer. I called and explained that I trained with this employer and then was let go because it was not a good fit and they said to claim the days I worked (3) even if they were just training which I did and I continued to collect. I was sent a questionnaire which asked 3-4 questions each having just a few lines to respond so I wrote back explaining that I had trained but then it became clear that it was "not a good fit." I received a determination 2 weeks ago saying I owed back my unemployment + penalties totaling over $5,000 because of misrepresentation and that I had quit my job at the restaurant "without cause" because I stated on the questionnaire that I left because it was not a good fit - which means I had not been fired.

The letter stated I could request a hearing online through the NY portal messaging system. I did so and included in my submission that I was dismissed because it was not a good fit, I was never hired full time and that I claimed the days that I trained. I received an updated determination wherein the owner has said that I had in fact quit and I was a no-show on 1/12/17 and that he called and texted me but I did not respond. I immediately requested another hearing stating that I procured proof that he is lying. I received a response back yesterday afternoon saying that I would need to provide what new information I have to warrant a hearing within 48 hours. I was able to procure phone records showing our final interaction was in fact my outgoing call to him on 1/10/2017 and our final text message interaction was on 1/4/2017 in the hopes that showing he has already lied about the "no-show" part of his story that it will cast doubt on its entirety.

I am confused on a few points:

1. I have read in other posts now how important the questionnaire was but as I described above, it looked like a one-page quiz from middle school so I was shocked to see how my words of mine were minced and realize what a mistake that was.
2. Is it my understanding that information I submit while just requesting a hearing is actually being used as evidence and therefore effective in determinations? Because that is seemingly what caused the first and subsequent determination.
3. In the newest determination, why are the owner's words being given more credence than my own? Especially when he has no proof to back up his statements and he has lied about how my training period ended? It feels as though the hearing is taking place via the investigation rather than being presented to a judge. I read in another thread that the hearing itself is basically like a complete re-do and that my case will be able to be fully laid out again however I have not been able to receive a hearing date to this point.

I understand why he may have lied - I'm sure any call from state unemployment to an employer puts them on high alert that they may be hit up to pay out someone's unemployment but it is as clear as day that this very brief training probationary period should not be considered "employment" by any party involved.

I have been connected with a labor lawyer in New York and he said the most important thing is to get the hearing. He said he would then find other cases to show there is a precedent to have a probationary period end and it not be considered employment or "quitting" when it is not a good fit. This is what I feel is the best course of action. Someone suggested having my lawyer reach out to the owner to let them know they are representing me and that their false statement is not protecting them against paying out unemployment to me as that is not what this is about. That they can change their statement and say they checked their notes and that things happened the way I said they did and this would perhaps all go away. The lawyer I spoke to said they were amenable to this idea however I fear that this will look like we were trying to coerce him to change his statement when in fact we just want him to tell the truth as this will not effect him in any way.

Is there precedent for a case to be thrown out if an "employer" changes their statement? Is that even possible?

Any and all advice is very welcome. I appreciate all of your brilliant legal minds and stand in solidarity with those who were just relying on "the system" and trying to do the right thing and ended up being vilified by it.