UNEMPLOYMENT APPEAL HEARING TIPS New Hampshire Version

There are only two main reasons you can be denied benefits in New Hampshire:

• You quit voluntarily without good cause.
• You were discharged for misconduct connected with your work.  

When you file an appeal, what you are really saying is either:

• You had good cause to quit.
• You didn’t do anything wrong at work. 

Here’s how to make your case.

1. Get your documents.   

We assume you filed your appeal on time.  That is, you filled in the form at the bottom of your notice of disqualification, and got it postmarked within ten days of the date on the decision.  (If you messed that up, it’s not always fatal, but it does pose a problem.)  

You’ll get a hearing notice with your case number.  Go to the address on the notice and ask for a copy of your file.  You’ll find out why your benefits were denied, what your employer’s story is, and what documents the Department of Employment Services (“DES”) is going to consider at the hearing.  See whether the employer responded within ten days.  If not, he can’t cross-examine you at the hearing and can’t appeal if you win.  

Write to your employer and ask for your personnel file.  Under RSA 275:56, your employer must provide the file to you upon your request.  It will contain your performance evaluations and any disciplinary notices.  These may come in handy at your hearing.  If the boss says you were consistently screwing up, why are your annual reviews so great?  Why aren’t there any written warnings in your file? 

1. Don’t be intimidated.

An appeal hearing is a little like a trial.  A hearing officer, called the Appeal Tribunal Chairperson, sits at the head of the table, asking questions and recording everything that happens. The important thing to remember is not to get bogged down in irrelevant details.  Emphasize the main reason you should win—and always tell the truth.

If it’s your appeal, you’ll go first.  The officer will accept documents in evidence and ask you questions. This is your opportunity to offer any documents you think are relevant.  If you have witnesses, they can testify. The employer can cross-examine you or your witnesses.

Then it’s the employer’s turn.  You can cross-examine any witness or object to documents.  When you question the employer, avoid theatrics.   This isn’t “Law and Order.”  Be calm, reasonable, and courteous.  Don’t interrupt anyone, particularly the review examiner.  Address witnesses as Mr. or Ms., and don’t get sidetracked about peripheral matters.  

1. Make Your Case.

There are two main reasons for disqualification, but there are infinite ways the facts of your case can apply to them.  We can give you some examples that may help.  

a. You Quit.

If you quit, you will be disqualified unless you can show that you had “good cause”  

Some examples of good cause are:

• Your employer made your work situation unreasonably difficult.
• Your work conditions were harmful to your health or safety.
• Your employer made negative changes to your work, like reduced pay or a reduction in hours.
• You were ill, or you had to care for a child or family member, and you couldn’t get a leave of absence.
• You moved because of your spouse’s new job and could no longer commute to work.
• You or a family member was a victim of domestic violence.
• You left to take another job, which you lost.

b. You Did Something Wrong At Work.

You are disqualified for “engaging in misconduct connected with your work.”  The employer must show either that:

• Your misconduct was recurring, careless or negligent; or
• Your single instance of misconduct was a deliberate violation of a company rule reasonably designed to protect the legitimate business interests of the employer.

Some examples of misconduct include:

• Insubordination.
• Coming to work under the influence of alcohol or drugs.
• Fighting with co-workers.

You might win if you can show that:

• You only did something wrong once and it wasn’t intentional.
• You didn’t know that what you did was wrong.
• There was no oral or written rule communicated to you.
• The rule you violated was not reasonable.

c. You Committed a Crime.

You can be fired if you were convicted of a felony or misdemeanor.  You must have been convicted.  Just being charged with a crime, or admitting to sufficient facts may not be a“conviction.”  

4. Need a Lawyer?

You don’t need a lawyer.  The system is designed so that you can go in, make your case in ordinary language—it doesn’t have to be English—and get a fair hearing.   But consider  that your boss may have a lawyer, an HR professional, or someone else who has done this before and knows the ropes.  It can be intimidating, and you may feel at a disadvantage.   Your potential benefits may be substantial, and a lawyer will help you protect them.  

At Unemployment Law Group, we realize you’ve just lost your job and probably don’t have a lot of money, so we provide representation at an affordable flat fee.  Contact us to talk about your case.  (We’re happy to talk with you, but we don’t represent you unless you decide to retain us and pay your fee.)

Good luck!

Massachusetts Unemployment Appeal Hearing Tips

There are only about four reasons you can be denied benefits in Massachusetts:

• You quit.
• You broke a rule.  
• You deliberately did something wrong.  
• You were convicted of a crime.  

When you file an appeal, what you are really saying is either:

• You did not do what the employer claims, or
• You had a good reason.  

Here’s how to make your case.

1. Get your documents.   

It’s important to file your appeal on time.  All you have to do is fill in the form at the bottom of your notice of disqualification, and get it postmarked within ten days of the date of the decision.  (If you miss the deadline, it isn’t always fatal, but it does pose a problem.)  

You’ll get a hearing notice with your case number.  Go to the address on the notice and ask for a copy of your file.  You will find out why your benefits were denied, what your employer’s story is, and what documents the Department of Unemployment Assistance (“DUA”) is going to consider.  See whether the employer responded within ten days.  If not, he can’t ask you questions at the hearing and can’t appeal if you win.  

Write to your employer and ask for your personnel file.  Under Massachusetts General Laws c. 149, § 52C, your employer has to provide the file within five days of your written request.  It will contain your performance evaluations and any disciplinary notices.  These may come in handy at your hearing.  If the boss says you were constantly making mistakes, why are your annual reviews so great?  Why aren’t there any written warnings in your file? 

2. Don’t be intimidated.

An appeal hearing is a little like a trial.  A review examiner sits at the head of the table, asking questions and recording everything that happens. The important thing to remember is not to get bogged down in irrelevant details.  Emphasize the main reason you should win—and always tell the truth.

If it’s your appeal, you’ll go first.  The examiner will accept documents in evidence and ask you questions. This is your opportunity to offer any documents you think are relevant.  If you have witnesses, they can testify. The employer can cross-examine you or your witnesses.

Then, it’s the employer’s turn.  You can cross-examine any witness or object to documents.  When you question the employer, avoid theatrics.   This isn’t “Law and Order.”  Be calm, reasonable, and courteous.  Don’t interrupt anyone.  Listen carefully to the Review Examiner’s questions—they will indicate what he or she thinks the important issues are—and answer them clearly and directly.  

3. Make Your Case.

There are four main reasons for disqualification, but there are infinite ways the facts of your case can apply to them.  Here are some examples that may help.  

a. You Quit.

If you quit, you will be disqualified unless you can show that you had (getting technical here) “good cause for leaving attributable to the employing unit or its agent” or that your “reasons for leaving were for such an urgent, compelling and necessitous nature as to make [your] separation involuntary.”You have to prove it wasn’t your fault.  

Some examples of good cause attributable to our employer are:

• You had a reasonable belief you were going to be fired.
• You were laid off or (sometimes) took early retirement.
• You were sexually harassed or discriminated against.
• Your work conditions were unsafe or illegal.
• Your hours were reduced or increased drastically.
• The employer broke a definite promise to you.
• Your job changed so much that it was no longer suitable.
• You didn’t get paid in full or on time.

Some of these examples are the basis for a civil suit against your employer.  For example, if you were the victim of discrimination or sexual harassment, or if you were denied overtime or weren’t paid properly, you should definitely give us a call and ask for a free consultation.

Here are some examples of compelling reasons for leaving:

• You were ill, or you had to care for a child or family member, and you couldn’t get a leave of absence.
• You couldn’t get transportation to work.
• You are a victim of domestic violence.
• You left to take another job, which you lost.

b. You Broke a Rule.

You will be disqualified for “a knowing violation of a reasonable and uniformly enforced rule or policy of the employer.”  However, you won’t be disqualified if you broke the rule because you were incompetent.  This is one of the easier things to appeal, because—unlike the situation where you quit—the burden is on the employer.  He has to show all of these things:

• There was a rule.
• You knew you were breaking it.
• The rule was reasonable.
• The rule was uniformly enforced.
• Your incompetence wasn’t to blame. 

You might win if:

• The rule wasn’t in writing and you weren’t told about it.
• You didn’t know that what you did was against the rule.
• It wasn’t reasonable to enforce the rule in your case—say, because of weather or transportation problems, or you had a family emergency.
• The rule contradicted another rule.
• Obeying the rule would be dangerous.
• Obeying the rule would be illegal or unethical.

c. Misconduct.

Again, the burden is on the employer to prove you were fired for “deliberate misconduct in willful disregard of the employing unit’s interest.”  It has to be intentional.  So, you might not be disqualified, even if if you:

• Made a serious mistake.
• Did lousy work.
• Were hard to get along with.
• Disobeyed an order (assuming you thought you were acting for a more important purpose of the employer).

d. You Committed a Crime.

You can be fired if you were convicted of a felony or misdemeanor.  You must have been convicted.  Just being charged with a crime, or admitting to sufficient facts may not be a“conviction.”  

4. Need a Lawyer?

You do not need a lawyer.  The system is designed so that you can go in, make your case in ordinary language—it doesn’t have to be English—and get a fair hearing.   But consider that your boss may have a lawyer, a human-resources professional, or someone else who has done this before and knows the ropes.  It can be intimidating, and you may feel at a disadvantage.   Your potential benefits may be substantial, and a lawyer will help make your case effectively.  At Unemployment Law Group, we realize you’ve just lost your job and probably don’t have a lot of money, so we provide representation at an affordable flat fee.  Contact us for a free consultation about your case.  (We’re happy to talk with you, but we will not be representing you until you decide to retain us and pay your fee.)

Whether you get a lawyer or you decide to go it alone, you should be prepared.  Here’s a free reference source that explains unemployment in more detail.  Good luck!

Unemployment Insurance After a Fight

You probably think there is no way to collect if you are fired for getting into a fight with a co-worker. Well, think again.

We represented an employee who was terminated after he got into a physical fight with a co-worker.   He was initially denied unemployment insurance benefits on the grounds that his actions were in violation of a reasonable and uniformly applied company policy prohibiting violence in the workplace.  The DUA also determined that physical fighting was deliberate misconduct in willful disregard of the employer’s interest, which is also a ground for disqualification.

At the appeal hearing, we first asked the employer questions about the employee’s long term employment, which was free of any warnings or other disciplinary actions.  We then prepared the employee to testify about the history of his interactions with the co-worker, and how the co-worker often provoked the employee by calling him names and telling him that he was not doing his job well. By presenting this history, the DUA examiner was able to better understand where the employee was coming from and his reactions on the particular day in question.        

Finally, we had the employee testify about how the co-worker was the first to attack him.  The employee acted in self-defense and therefore, did not intentionally engage in physical violence in the workplace. 

By providing a chronology of events at the hearing, the DUA review examiner was able to see that although the employee was in a fight, he acted out of self-defense and provocation.  Both are factors that mitigate the employee’s state of mind to act with deliberate misconduct.   The employee had no intention of violating a company policy or getting into a fight, and therefore, the DUA determined he was eligible to collect benefits.

You should keep in mind that in such a situation, even if the employer had legitimate grounds for terminating your employment, that does not determine whether you are eligible to collect unemployment benefits.  If we can help you demonstrate that you did not act intentionally, as we successfully did for this employee, you have a greater chance of collecting benefits on the grounds that you did not act deliberately, and the company policy, albeit reasonable, was unfairly applied.

Business Owners Can Be Employees Too

Our client, Bill, was a one-third owner of an environmental business.  His partners forced him out of the company.  Although he got a fair price for his interest, he was left without a job.  He needed benefits while he looked for work.

Although Bill had owned shares in the company, he had been a W-2 employee.  His paycheck had all the usual deductions, including those for unemployment insurance.  The Division of Unemployment Assistance (“DUA”) allows benefits to shareholders of corporations who are involuntarily separated from work, but they turned Bill down.  The reason was that his company was an LLC and not a corporation.

In his appeal, we pointed out that the distinction was irrational.  There are only minor, technical differences between a corporation and an LLC, and none of them affect an employee’s eligibility for benefits.   This is unemployment insurance after all.  Bill had paid the premiums and should be entitled to coverage when he needed it.

The DUA did not accept our arguments.  They argued that an owner-employee’s salary could not be considered “wages” under their regulations.  We took the appeal to court and ultimately got Bill what he was entitled to.