Former Employer Filed an Appeal

[DC77]

It has been explained to you here and I would be VERY surprised if the next step in the appeals process wasn't fully explained within the decision letter you received.

But again the next step is the Board of Review. DES: Board of Review

Thank you, but I don't want to appeal if I don't have to because of an error that THEY made with the date.

I'll try to state it more clearly than above, do I have to file an appeal to correct THEIR error in writing down the date?

 

[army judge]

I'll try to state it more clearly than above, do I have to file an appeal to correct THEIR error in writing down the date?

I suggest you ask that question when you visit a local DES site tomorrow.

These people represent your state gubmint.

They don't exist to assist you, although they claim that is their purpose.

Gubmint agencies exist, for the most part, to thwart you.

You can get what you want out of them, but you must do so playing by their rules, which are often obscure or complex.

Just to reinforce the point, recall how difficult it is to get through if you try to call them.

They are very tricky people, to say the least.

 

[DC77]

Here's a thought from the old days.

You could always visit a DES location in person and learn more about how to resolve the matter.

In the meantime, file the appeal.

Get the ball rolling.

Don't get caught asleep at the wheel.

WHAT MUST MY APPEAL CONTAIN?

An initial, first level appeal must:

Be in writing. An electronic or online written statement is sufficient.
State that you appeal or disagree with the determination or ruling.
State the Issue ID number or Docket number that you are appealing.
State your full name, and, if you are with an employer, your title.
State your contact information, including your phone number(s) and email addresses.

You may also include a detailed statement of why you are appealing for the appeals referee to review, along with any evidence you would like considered as part of your appeals hearing. No particular form is required for an initial appeal.

Forget about what you'll say, just complete the forms and get it into the hands of the DES, so you don't get slapped down on a technicality.

Here's where you start:

DES: Appeals

The preferred and fastest way to appeal a determination made by the Division of the Employment Security is through the DES online benefits system.

Once an appeal is filed, DES will schedule a hearing on your appeal.

A notice of hearing containing the date, time and contact information for the designated appeals referee will be sent to you.

File an Appeal ===> DES: File an Appeal

Things that cannot be appealed include:

Pending issues
Incomplete or pending claims
Monetary determinations, including "monetarily ineligible" claim status
Wage protests
Weekly benefit amounts
Excessive earnings/wages preventing benefit payment
Weekly certifications
Claim effective dates, requests to back-date a claim
Waiting week waivers

These issues can be addressed by contacting the Customer Call Center DES: Contact Us or the Employer Call Center.

Thank you armyjudge, I think that answers my question. All I want is for the date of separation to be corrected. The adjudicators recorded it incorrectly in the determination. So if I have to do that by appeal, I guess I'll get it rolling.

PS I'm looking for an in-person office and the closest ones are 2-3 hours away. Have to work. I'll file the appeal. Then it's at least dated and I'm covered. Then ball is in their court.

 

[DC77]

all states are like that right now. If you have sent an email requesting an appeal they should honor it. Usually it is 10 business days but your state could be different. Keep trying till you get through, usually early morning right as they open is the best time to call.

You have a right to appeal the agency determination and they can schedule a hearing for said determination. If they ask you a grounds just say general and then go find yourself an attorney who works these on the side and can help you. You could still lose but at least they would take you more seriously.

Thank you @Redemptionman. I was contacting attorneys to see if I had a leg to stand on if I wanted to appeal the entire decision. But I have to just move on... At this point, I just need DES to correct an error that THEY made in recording the separation date. Their off by a month and overcharging. That's all I'm going to appeal.

 

[PayrollHRGuy]

Thank you, but I don't want to appeal if I don't have to because of an error that THEY made with the date.

I'll try to state it more clearly than above, do I have to file an appeal to correct THEIR error in writing down the date?

The appeal process is the only way at this point to get anything changed.

 

[commentator]

No matter what state you are in FILE THAT APPEAL! You do not need to make any kind of response to the reasons given or make an argument for your eligibility for benefits, just say, 'I wish to file an appeal. " When you start discussing the overpayment with a person after the last appeal is exhausted, at that point, the only way they will determine "dates" will be from the weeks of benefits you received. They have the record of that. And yes, if they have made a mistake, you still need to appeal. But I'm confused by the question. It's not so much the date when you were separated, it is the weeks for which you received at least a partial unemployment check.

The adjudicator you talked to referred you back to a claims taker to look at your claim to determine what weeks you were paid for, what weeks you had filed for and received benefits for. They can tell that by looking at your claim on line. Can you not look at your records of your claim on line and see which weeks you were paid for?

Follow the directions for where and how to file the appeal. A walk-in unemployment office will not be helpful to you. Most states do most of their work on line or by telephone, even just to file regular claims, much less to help clients with the unemployment appeal process. Walk in offices mostly deal with re employment programs. If you took off from work and made the effort to get to one, it would be a complete waste of your time and effort. Usually the waits on the telephone systems to reach a human being are formidable. As I said, use your on line system if at all possible, as I do not see that the talk or trip to the walk in office can help you too much. You only need to deal with that one particular department, once you are in appeals, you need the numbers and places they provide on the appeal paperwork, not a discussion with a random worker in some office who does not deal directly with appeals. And the only way to file appeals is the way that they have told you about in the notification of overpayment. That will be going directly to the appeals department, which is the only one you are dealing with right now.

But in any case, I am sorry I miscalled this. I am quite surprised they are going back this far and trying to recoup eligibility material. But if you have already had your telephone hearing, you still need to file the next appeal. If that is to the board of review, then you will not receive any further overpayment information until you have gotten a decision from the appeals tribunal. There will not be any further opportunity for you to make any type of argument unless you do so in the appeals process.

They will not begin overpayment recoupment until you have been given and exhausted every right to appeal that they offer. Then you can request from the overpayment unit a waiver based on your income and situation, or ailing that, fset up a very reasonable repayment plan, with the department. There should be no penalties applied, as you did not have any sort of fraud involved in the overpayment even if they decide one does exist. Either way, you will have to work it out with them.

If it comes to that, you are not going to be jailed or prosecuted for unemployment fraud based on this overpayment. Since you were approved originally and paid legitimately, you are what they call a "non fault overpayment." You did not deliberately commit fraud or provide false information for the purpose of receiving benefit for which you did not qualify. You were told by the system that you did qualify and were given the benefits, which you applied for in good faith.

In your dealings with them, try to avoid the idea that "gubment" is in existence to give you hell. After all, they have actually given you quite a bit of money through a government program. The "they're out to get me" attitude is contrary to most of what I saw in my many years of working in this program.

They are there to adjudicate the program as prescribed by federal and state law. Some states are more employee friendly and some states are more employer friendly in their processes. Most of the southeastern states like N.C. are particularly employer friendly. But the person who works for the department is not your enemy. They do not get paid any more or less whether you are approved or denied. Do not have a combative attitude. File this appeal. Go on line if you can for claims information. If you must use the telephone system, try calling early in the morning, do wait as long as you can, after all someone is getting in. It might as well be you. Don't try to go to a walk in office and get answers unless you are prepared for a long wait in person, and possibly no help anyway.

 

[commentator]

I expect I will be receiving something from federal. Then we're talking about $7,000. I don't have this kind of money.

I do not understand this. There is no separate division of "federal" unemployment which is going to tell you you have an overpayment, that information would come from the state's system. In all unemployment, all money, state and federal are administered distributed and adjudicated by the state system. So I suspect strongly that they are not including the federal money in the overpayment determination.

 

[Redemptionman]

and to add to what @commentator said, if you called around to a bunch of local attorneys that was the wrong approach. You are looking for similar lawyers that work free legal counseling in your local city. Even ask one the of representatives from the department if they know anyone.Labor attorneys specifically sometimes work these to help people in your situation. You have to be resourceful. If you want to pay back 7k then that is up to you.

Good Luck with it.

 

[commentator]

and to add to what @commentator said, if you called around to a bunch of local attorneys that was the wrong approach. You are looking for similar lawyers that work free legal counseling in your local city. Even ask one the of representatives from the department if they know anyone.Labor attorneys specifically sometimes work these to help people in your situation. You have to be resourceful. If you want to pay back 7k then that is up to you.

Good Luck with it.

An attorney could not make any difference in this situation at this point that I can see. I agree that labor department attorneys can sometimes help people in unemployment systems hearings, but I still maintain there is nothing an attorney in the appeals process can do that you cannot do for yourself if you are fairly literate and able to speak and answer questions. If the person is determined by the agency to be overpaid, and told they need to pay the money back, and the person has exhausted the appeals process, there's going to be no "lawyer trick" that is going to make any difference. Unless a person with an unemployment insurance overpayment is referred to the real criminal court for prosecution, an attorney isn't needed.

 

[Redemptionman]

An attorney could not make any difference in this situation at this point that I can see. I agree that labor department attorneys can sometimes help people in unemployment systems hearings, but I still maintain there is nothing an attorney in the appeals process can do that you cannot do for yourself if you are fairly literate and able to speak and answer questions. If the person is determined by the agency to be overpaid, and told they need to pay the money back, and the person has exhausted the appeals process, there's going to be no "lawyer trick" that is going to make any difference. Unless a person with an unemployment insurance overpayment is referred to the real criminal court for prosecution, an attorney isn't needed.

I wasn't saying lawyer trick, but the other point of view helps if it is nothing more to argue points that the OP hasn't thought about. The OP or anyone in their situation would tend to be emotional and sometimes the attorney will help clear the air and bring up points that the OP would not have thought of. If he appeals the date he will have to appeal it all. There is no way to appeal just bits and pieces, iirc.

 

[commentator]

At this point, the hearings are over, and it is not the job of the board of review, it doesn't listen to much new information.possibly they will be correcting a typo in the decision or overpayment letter. That date is not, as I said, nearly as important as the actual amount of money this claimaint was paid, based on their weekly certifications for benefits. If they started certifying and were paid any unemployment from the first date, that's money that will be counted as overpayment, and if they didn't separate till later, and didn't receive benefits for those weeks, it doesn't matter. That they were getting money from unemployment, regardless of the week they started drawing it, that's the thing that matters in an overpayment. It's possible that a typo was made in the decision, but that should not affect the amount of money the person actually drew in benefits. That is on record based on their weekly certifications to receive payments.

 

[adjusterjack]

Thank you, but I don't want to appeal if I don't have to because of an error that THEY made with the date.

I'll try to state it more clearly than above, do I have to file an appeal to correct THEIR error in writing down the date?

Yes. Their decision is written on stone, including errors. You'll need to file an appeal to get even part of the decision reversed.

I wasn't saying lawyer trick, but the other point of view helps if it is nothing more to argue points that the OP hasn't thought about. The OP or anyone in their situation would tend to be emotional and sometimes the attorney will help clear the air and bring up points that the OP would not have thought of.
.

I agree with the need for a lawyer as there may be points and case decisions to be cited during the appeal.

I had to do that years ago for an unemployment appeal. There was a dispute about whether I quit or was fired. I was denied benefits when I applied. I appealed and I had a phone hearing after that and was denied again. The next level was before an administrative law judge. I spend a lot of time at the law library researching appellate decisions on unemployment eligibility cases that would support my position. That was before one could do that on the internet. I won the appeal and got a nice fat check for retroactive benefits.

DC77, google unemployment or labor lawyers for your city and at least talk to a few about what they can do and what they charge. Many will represent you on a contingency where you don't pay unless you win. And if you win you are only out a fraction of the benefits that you would have had to pay back.

 

[PayrollHRGuy]

I agree with the need for a lawyer as there may be points and case decisions to be cited during the appeal.

The problem is that at this point (Board of Review) there is no place for a lawyer or the OP himself to be involved other than filing for the review and that doesn't really need to be much more than a request.

 

[DC77]

At this point, the hearings are over, and it is not the job of the board of review, it doesn't listen to much new information.possibly they will be correcting a typo in the decision or overpayment letter. That date is not, as I said, nearly as important as the actual amount of money this claimaint was paid, based on their weekly certifications for benefits. If they started certifying and were paid any unemployment from the first date, that's money that will be counted as overpayment, and if they didn't separate till later, and didn't receive benefits for those weeks, it doesn't matter. That they were getting money from unemployment, regardless of the week they started drawing it, that's the thing that matters in an overpayment. It's possible that a typo was made in the decision, but that should not affect the amount of money the person actually drew in benefits. That is on record based on their weekly certifications to receive payments.

Hi @commentator , in fact they are calculating overpayment from the mistyped date, which is an extra month I shouldn't be paying. I was eligible for partial benefits during the time working there. The determination cuts off benefits for anything AFTER the date I stated as my last day. This is the date they wrote incorrectly.

They did not acknowledge that the notice to leave was negated or any of my 2 months time worked after that date. And the referee left out parts of testimony from the hearing notes, which were passed on to adjudicators. They didn't have the pleasure of interacting with the petulant employer. I do wish now that I would have consulted with a lawyer because I was very unprepared for the format and what I was up against. As armyjudge has said, they weren't there to be fair and help me keep benefits.

For anyone reading through these posts for reference to their own situation, I would recommend consulting a lawyer, if anything to help you prepare for the hearing format.

 

[DC77]

Yes. Their decision is written on stone, including errors. You'll need to file an appeal to get even part of the decision reversed.



I agree with the need for a lawyer as there may be points and case decisions to be cited during the appeal.

I had to do that years ago for an unemployment appeal. There was a dispute about whether I quit or was fired. I was denied benefits when I applied. I appealed and I had a phone hearing after that and was denied again. The next level was before an administrative law judge. I spend a lot of time at the law library researching appellate decisions on unemployment eligibility cases that would support my position. That was before one could do that on the internet. I won the appeal and got a nice fat check for retroactive benefits.

DC77, google unemployment or labor lawyers for your city and at least talk to a few about what they can do and what they charge. Many will represent you on a contingency where you don't pay unless you win. And if you win you are only out a fraction of the benefits that you would have had to pay back.

@adjusterjack I do wish I would have consulted with a lawyer before hand. I've tried calling around to have someone look at everything before sending an appeal letter, but I can't get anyone on such short notice. I have 10 days from the letter date, which by the time it got to me gave me 6 days. 2 of those days are the weekend. I have to submit by today, Sunday.

It's my understanding from the info provided that I can write a letter pleading my case. I don't know that I want to continue opening the can of worms any further though. If you've read from the beginning, I had some issues with an emergency surgery for my cat. Was sick a few times. And have been threatened with slander now for mentioning his lack of covid precautions and questionable safety practices. So without a lawyer, I'm not willing to push any further.

 

[commentator]

@adjusterjack I do wish I would have consulted with a lawyer before hand. I've tried calling around to have someone look at everything before sending an appeal letter, but I can't get anyone on such short notice. I have 10 days from the letter date, which by the time it got to me gave me 6 days. 2 of those days are the weekend. I have to submit by today, Sunday.

It's my understanding from the info provided that I can write a letter pleading my case. I don't know that I want to continue opening the can of worms any further though. If you've read from the beginning, I had some issues with an emergency surgery for my cat. Was sick a few times. And have been threatened with slander now for mentioning his lack of covid precautions and questionable safety practices. So without a lawyer, I'm not willing to push any further.

Hi @commentator , in fact they are calculating overpayment from the mistyped date, which is an extra month I shouldn't be paying. I was eligible for partial benefits during the time working there. The determination cuts off benefits for anything AFTER the date I stated as my last day. This is the date they wrote incorrectly.

They did not acknowledge that the notice to leave was negated or any of my 2 months time worked after that date. And the referee left out parts of testimony from the hearing notes, which were passed on to adjudicators. They didn't have the pleasure of interacting with the petulant employer. I do wish now that I would have consulted with a lawyer because I was very unprepared for the format and what I was up against. As armyjudge has said, they weren't there to be fair and help me keep benefits.

For anyone reading through these posts for reference to their own situation, I would recommend consulting a lawyer, if anything to help you prepare for the hearing format.

 

[commentator]

With or without an attorney, if you do not push any further, you are overpaid, exactly the amount they say you are overpaid in the overpayment determination. This is an agency, not a court of law. If you think they made a mistake, there's no other possible chance to correct it except the appeal. You have nowhere else to argue about it or anything else. If you do not file a timely appeal, they are at liberty to collect it, no further arguments. The employer cannot sue you for libel or slander about anything that was said or presented in this agency hearing.