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  1. #1
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    Default What to Expect During a Phone Hearing for an Unemployment Appeal

    My question involves labor and employment law for the state of Arizona

    Recently, I was fired from my job as a manager of a store for suspicion of stealing a sum of money from the daily deposit amount. This money was "missing" apparently from a night shift I had been working. For context, I worked almost every night and the missing money could have been a pos software issue or a mistake made by the bank, it is still unclear. My employer decided to bring an HR consultant to "investigate" this incident, but to me it seemed like they were trying to avoid a lawsuit if I was just terminated with no prior write ups or an investigation done on the missing money. The investigation consisted of a meeting with me, the HR person, and my two bosses. The HR person asked me questions about the specific night and I didn't have much to say about it because it was just another night to me. The investigation concluded with me getting a phone call from my boss and telling me they decided to terminate me based on the findings of the investigation.

    I filed for unemployment and was denied for benefits because they contacted my former employer and the letter I received read, "You were discharged because of unsatisfactory work performance. Your employer has provided evidence that you performed your work with gross carelessness or negligence, or that you did not perform you work with ordinary care. Your actions were a disregard of the employers interests."

    I appealed this decision and I have a phone hearing coming up on the 7th of June. I would like some advice on how to go about this and what I can say that will help my case.

    There is a file in the case that my employer filled out saying that I was discharged for "having someone count money off the clock". This issue was never brought up with me at any point during the investigation. The fact is they fired me for allegedly taking the missing money, and the investigative report that the HR person wrote up says that she "thinks it is probale she took the money" with no evidence of the sort. They also interviewed the co-worker that counted the money and her testimony stated that she was there and I did not take it.

    Any advice on how I can proceed with this hearing with confidence would be greatly appreciated. I was wrongfully accused and fired and now my unemployment benefits are being withheld.

  2. #2
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    One quick correction of your terminology so that you don't accidentally hurt yourself by making claims that will not hold up. In employment law, the term "wrongful termination" or "wrongfully fired" has a very specific meaning. Under the legal meaning of those terms, you were not wrongfully fired. You may or may not have been unfairly fired; it may be that you were mistakenly fired for something you didn't do. But the term does not mean that you were fired for something you didn't do; it means you were fired for a reason prohibited by law. The law does not prohibit your employer for firing you on suspicion of theft, even if the employer is mistaken. Therefore, you were not wrongfully (illegally) fired. I'm not saying it was fair; I'm not saying I agree you should have been fired. I'm saying that the termination was not illegal.

    Do you know what evidence based their decision on?

  3. #3
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    Since this a telephone hearing, you can make notes for yourself to follow. It will be a three way call, with yourself, the hearing official and the employer or their representative. The officer will swear both parties in. Then each of you will be given the opportunity to speak, telling your side of the story, and the hearing officer will perhaps ask a few more questions to clarify what they have heard. then they will end the hearing and in a few days, you'll receive a notice of whether or not the decision was upheld to deny benefits.

    You need to say more, apparently than you said in the investigation by the employer and the HR representative. No, they didn't call this person in because they were worried about you suing them for wrongful termination, as has been explained to you in the post above. It wasn't. They were fine, it was perfectly legal, and it is okay for them to terminate you. They may have called in a specialist from somewhere else to determine if they had a good enough case to press charges against you for theft. But they can fire you at will, for just about any reason. Your only recourse is if you are able to show they did not have a valid misconduct reason to terminate you, you can possibly be approved for unemployment insurance benefits while looking for another job.

    I am curious about the "poor performance " issue, when the decision might have been more about whether you took the missing money. I suspect they're saying your "gross" carelessness and neglect may've led to the money going missing even if you didn't take it yourself. Outright misconduct such as stealing is considered "Gross" misconduct, in that such that for unemployment purposes, it was reasonable for them to fire you for this reason because even without repeated warnings or write ups, any reasonable person should've known it was wrong to do what they say you did, or do the job in this manner, even one time, without their having given you warnings.

    Even if the other party is lying, the hearing officer will go with whichever one of the two parties is "most believable." If they say you did and you say you didn't, somebody's lying. They weigh who seems to have the best evidence or the best presentation of the important facts of the situation.

    But because they use the poor performance reason for termination, they must show definitively that you were deliberately performing poorly, that you had the skills, knowledge and ability to do the job correctly but were choosing not to do that. In other words, you violated the company's best interests wantonly (carelessly) and deliberately.

    What you do to defend against this is to state that you did your job to the best of your abilities. That you had not stolen any money (if this is true) and that you had followed company policies as far as to your knowledge, this was what they were. Emphasize that you did nothing unusual in the night in question. Stress you had no prior warnings or write ups.

    It comes down to how much proof that you took the money they might have. If they can show strong evidence, or have pretty good indications that you took the money, you're pretty much sunk, even if you didn't take it. But if they come in and just start arguing that they had a valid misconduct reason to terminate you, they'll be on less firm ground. Because if they start bringing in a lot of "he didn't"s and "he was supposed to" and such, all you have to do is repetitively stress that you did your job to the best of your abilities.

    Read some of the past posts that have been put up on the subject here, they'll give you some other ideas about the hearing process.

  4. #4
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    Quote Quoting umeboshi
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    I would like some advice on how to go about this and what I can say that will help my case.
    As a fired claimant, you usually say nothing or "I didn't do it," and you keep out the hearsay, or at least put the ALJ on notice that you know what hearsay is so that it doesn't get used, or in ALJ speak, "hearsay evidence is allowed and will be given it's proper weight" (which is about zero.)

    Quote Quoting umeboshi
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    There is a file in the case that my employer filled out saying that I was discharged for "having someone count money off the clock". This issue was never brought up with me at any point during the investigation. The fact is they fired me for allegedly taking the missing money, and the investigative report that the HR person wrote up says that she "thinks it is probale she took the money" with no evidence of the sort.
    Much of what you wrote here is irrelevant. The employer could say to you on your way out the door, "I'm sorry. We have to let you go because we don't have enough work for you to do." They are then free to tell the UI people a story that is disqualifying. If the employer can prove by a preponderance of the admissible evidence that you committed a bad act that rises to the level of "misconduct connected with the work," you can scream all you want that you were laid off for a lack of work. It doesn't matter.

    You focus on what the employer told the UI people. Did you have someone counting money off the clock? If so, then you think about what the employer would have to bring to the hearing to correctly prove that with admissible evidence, or you can do it for them by saying, "yes, I was having someone count money while working off the clock."

    Quote Quoting umeboshi
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    They also interviewed the co-worker that counted the money and her testimony stated that she was there and I did not take it.
    Testimony is what comes out of a witness's mouth at a hearing when they are under oath and subject to cross examination. What she may have written and possibly gets submitted as "evidence," what someone else wrote in an investigative report that is claimed she said, or someone other than the co-worker testifying as to what she told them is HEARSAY, and is evidence of nothing. You have the right to face your accuser, have them under oath, and subject to cross examination.

    However, her testifying, "umeboshi didn't take the money," doesn't help you because your employer didn't accuse you of taking any money as the reason you were fired. However, it can hurt you because it's testimony that says she was there, maybe counting money and possibly doing it off clock.

    Quote Quoting umeboshi
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    Any advice on how I can proceed with this hearing with confidence would be greatly appreciated.
    You pray the co-worker doesn't come to your hearing, and that without her testimony the employer can't substantiate that you had "someone count money off the clock."

    Quote Quoting umeboshi
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    I was wrongfully accused and fired
    Now, that you know the REAL reason you were fired for purposes of UI, just maybe it was a correct reason, and even if it is correct, it could be that it can't be proven at the hearing (unless you want to do it for them), or it could be that even if correctly proven, it won't be misconduct.

  5. #5
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    I don't think admitting hearsay is going to be such a big issue. The agency official gets to decide. The agency representative is going to have an initial speech that they will give outlining the parameters of the hearing. You are strongly advised not to object, quote any unemployment law, jump in and interrupt during the other party's testimony or go all lawyer-esque in any way on them. This is an agency hearing. They have two parties stating their case before a hearing officer. Neither of you is expected to be fluent in unemployment law or to be aggressive or super demanding or super assertive. Going on record objecting to hearsay, putting the hearing officer on notice that you think some evidence is inadmissible, attempting to cross examine the other party is not going to make you more believable or put the hearing officer in awe of your legal skills. The hearing officer is not your adversary. Do not cast them in this role.

    They're human, they're supposed to control the hearing and decide what is and isn't relevant or what is hearsay or what is admissible and they go with the more believable of the two parties. If you refuse to speak, or if you try to control the hearing or tell them what the law says, it will hurt your chances more than it will help them. It's more likely you'll just lose all benefit of the doubt, and be found the less believable of the two parties, and you'll be denied again, the initial decision will be upheld. There may or may not be a sympathetic ALJ out there somewhere in your future appeals who will be willing to see it your way.

    Be polite, professional and brief, to the point. To try to convince them you did nothing that rises to the level of misconduct, much less gross misconduct, state your case and do not argue. Rather emphasize and re-emphasize that you were doing things the way you had always done them, and all feedback you had received previously indicated that you were doing an acceptable job, you always did your job to the best of your abilities, and that you did nothing wrong according to the information you had.

  6. #6
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    An occasional poster on these boards has been known to say that frequently the one who prevails in an unemployment hearing is the one who brasses off the hearing officer the least. You don't want it to be you.

  7. #7
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    You're forgetting that this is my state.

    Quote Quoting comment/ator
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    The agency representative is going to have an initial speech that they will give outlining the parameters of the hearing.
    These ALJs are not flunkies of the agency. They are real attorneys that work for the Office of Administrative Hearings.

    Quote Quoting comment/ator
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    The hearing officer is not your adversary.
    If this were true, the three crap judges I had wouldn't have been overturned on appeal by the board of review and board of review panel.

    Quote Quoting comment/ator
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    they're supposed to control the hearing and decide what is and isn't relevant
    If I had allowed this to happen, I'd have been denied for "objecting to working part-time or a reduced number of hours," because the hearing judges I had were trying to block me at every step for bringing in evidence that my compensation package was gutted.

    Quote Quoting comment/ator
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    or what is hearsay or what is admissible
    I've read enough decisions that said, "you had a chance to object to the hearsay at the hearing. You didn't do it, and you can't do it now."

    Quote Quoting comment/ator
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    Be polite, professional and brief, to the point.
    If the judge isn't following the rules, you've only got one chance to stop them.

    Yeah, the two tribunal judges got mad at me, and I lost those appeals.

    The first hearing judge said, "I'm the ALJ. I'll decide what's relevant," when I challenged her for ONLY asking questions about my reduction in hours when the reason I quit was because of my loss of benefits.

    The second hearing judge said, "Gotcha," when she asked why I'd quit a job that paid $280/wk to get $240 on UI. When the proper analysis was that I was getting $504/wk and had generous and very affordable health insurance, vacation, sick time, holiday, and short and long term disability, and after the change it was a straight $280/wk with nothing.

    However, the record was sufficient in the one case that I got a new hearing because "the record was not fully developed." In the second, the findings of fact were supplemented with "the claimant's compensation package was reduced by 22.9%."

    The decisions are supposed to be rendered based on the facts gleaned from the admissible evidence, not because one party was nicer than the other.

  8. #8
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    What's supposed to happen, and what actually does happen, are not always the same.

  9. #9
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    Default Re: What to Expect During a Phone Hearing for an Unemployment Appeal

    Quote Quoting cbg
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    What's supposed to happen, and what actually does happen, are not always the same.
    the hearing judges I had were trying to block me at every step Yeah, the two tribunal judges got mad at me, and I lost those appeals.


    Yes, and sometimes it DOES. Notice I said there may or may not be a sympathetic ALJ somewhere down the road who appreciates one's expertise. And the client may not want to wait weeks longer if there's a chance of approval in the hearing now. I believe there can possibly be an advantage in not being obnoxiously knowing and argumentative, getting into a verbal combat with the hearing officer. Sometimes to follow the law, one must hold one's nose and approve something for a complete jerk because the facts are on their side. Then sometimes, there's a judgment call, where you can or can not give someone the benefit of the do ubt, find someone, particularly in a situation like this, more believable than someone else.

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