Unemployment Transcripts August 28, 1997 10 a.m. - 11 a.m. GUESTS: MICHELLE RAMIREZ, EMPLOYMENT ATTORNEY JON BLOOM, UNEMPLOYMENT ADVISOR The following are excerpts from the viewer call-in portion of the program. Qualifying For Unemployment Insurance Is There A Difference Between Laid Off And Fired? Who's Eligible? Forced To Pay Back Unemployment Insurance Why Does Unemployment Only Last Six Months? Appealing Denial Of Unemployment Claim Unemployment Payments Revoked Tips For Collecting Unemployment MS. GRASSO: Welcome back to the second hour of Legal Cafe, where we're open Monday through Friday 9:00 to 11:00 a.m. Eastern Time. I'm June Grasso. Our focus today is on work, and in this hour, what happens when you're out of work -- unemployment. The unemployment figures are at their lowest in many years. That means little to you if you've lost your job, but there's often one saving grace called unemployment insurance. It's designed to help keep you on your feet while you pound the pavement for another job. Here to answer questions is an expert in the unemployment field, Michelle Ramirez. Michelle's an employment law specialist, a former assistant attorney general in Wisconsin, where she defended the state in employment cases. Michelle's been with us before, and it's a pleasure to have you back, Michelle. Welcome. MS. RAMIREZ: Thank you, June. QUALIFYING FOR UNEMPLOYMENT INSURANCE MS. GRASSO: First of all, you know, I thought that unemployment insurance was pretty automatic, and then I started reading about it, and it seems like it's really complicated. There are a lot of things you have to go through in order to qualify. MS. RAMIREZ: Well, certainly. You have to make certain that you've been working with your employer for a certain period of time -- it's approximately a year's period -- before you can collect. You also have to make certain that you were terminated, rather than voluntarily resigning. Although the regulations vary from state to state, most states require that your employer has either laid you off or that you've been terminated. But even if you've been terminated, there are still circumstances where unemployment insurance benefits cannot be paid to you if you've conducted -- you know, if you've engaged in misconduct, theft, and those are the reasons why you've been terminated. In those circumstances, unemployment insurance benefits, you may not be able to collect them. MS. GRASSO: And also, you have to bring a lot of paperwork with you to the unemployment insurance office. You have a lot of documentation you have to do. Talk about some of the verification -- I mean, from your Social Security card. That surprised me. MS. RAMIREZ: Exactly. Your Social Security number. They need to verify that you were actually the person that was employed at the time, receiving wages from this employer. It's very procedural. You must -- you must verify that you worked for the employer for X number of months, and all this information has to be verified and documented in paperwork, and even after doing all of that, there's so much that you still need to verify in paperwork. It's almost like a test. MS. GRASSO: Well, it says a copy of your record of employment, a pay stub or W-2 form for the last 12 months -- I mean, those are the things you have to actually bring with you, physically bring with you. Now, another thing that you always -- you see in television sitcoms about someone being willing to find another job and what they put you through at the unemployment insurance office to show that you're really looking for work. Does that really go on? Do they really make you actually look for work and show that you're trying to find a job? MS. RAMIREZ: It varies from state to state, the level of involvement from the unemployment insurance offices, but, yes, they do. In the state of New York, for instance, there's a touch-tone system where you are required to call in and verify that you are looking for work every time you collect your benefits and you sign a check. The back of your check, in some states, indicates, you know, "I am ready, willing, and able to work and have been looking for work during the period of time." MS. GRASSO: Sounds like one of those signs you see people holding up -- I'm ready to work. How much money can the average employee expect to get from unemployment? It's certainly not what you're used to in the paycheck. MS. RAMIREZ: No, and it varies from the years of employment coupled with how much you were earning at the time. Some people, given their salary -- I mean, if you're in the 50,000 (dollars)a to $60,000 range, you might get as little as $300, you know, a week, which, you know, for those people who are not working, $300 may sound like a lot. Nevertheless, you have to realize that this was someone who was earning a hefty amount and has bills and things that they need to pay. MS. GRASSO: Maybe mortgage payments that exceed that. IS THERE A DIFFERENCE BETWEEN LAID OFF AND FIRED? Let's go to our e-mail question now. Let's hear what you have to say about unemployment. This e-mail question from our Legal Cafe website is from Diana in Kentucky, who wants to know, "Is there a legal difference between getting fired and getting laid off, and how does it affect unemployment benefits?" Michelle, is there a difference between getting fired and getting laid off? MS. RAMIREZ: In most circumstances, in terms of collecting unemployment insurance benefits, no. Your employer has basically taken away your right to work, your ability to work, and unemployment insurance offices will require this verification that you've been laid off and what the reason for being laid off is, and if you're terminated from work, you can also collect unemployment insurance benefits, but, as I was saying earlier, there's various nuances in terms of being terminated that could prevent you from collecting your unemployment insurance benefits. But there really shouldn't be a difference in terms of collecting the benefits. MS. GRASSO: Is it easier, though, because, in other words, there's no question -- if you're laid off, you know, let's say there's 30 people who are laid off at the same time, there might be no question of why you were, you know, fired, was there a specific reason for your being fired, you know, because of misconduct or anything like that -- it's kind of open and shut? MS. RAMIREZ: No, because in terms of -- MS. GRASSO: I'm trying to make it easy, Michelle. But it's not. It's never easy, is it? MS. RAMIREZ: It's never easy. It's never easy. In terms of being laid off, your employer might say, "Well, we're going to recall or bring back employees in terms of seniority within the next 30 days," and these are questions that the unemployment insurance office will ask, and if this person is able to go back to work and the employer's indicated a job will be ready on X date, the unemployment insurance benefits might not kick in. WHO'S ELIGIBLE? MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso. We're talking about unemployment insurance, which can often be a lifesaver to someone who's out of work with little or no savings. Unemployment is supposed to be temporary insurance for eligible workers who become unemployed through no fault of their own, but just who is eligible? Here's the law of the land. To qualify for unemployment in most states, you're required to work for a minimum period of time on the job you lost. You must also register for work with the unemployment office and be available and actively seeking employment. Failure to meet these requirements might affect your eligibility. I want to introduce another guest to talk about these eligibility requirements. Jon Bloom is in the Court TV newsroom. He's executive director of the Workers Defense League, which assists workers on work-related problems. He's also taught at several major universities. Good morning, John. Thanks for being here. MR. BLOOM: Thank you. MS. GRASSO: Jon, what's the typical or the biggest complaint you get from workers who are unable to get unemployment insurance and who are fighting over it? MR. BLOOM: Well, people call us because they've been denied unemployment on generally two grounds, either that they've lost their job as a result of misconduct or that they voluntarily quit their job without, quote, "compelling reasons," and the Department of Labor has sent them a denial notice, saying that they're ineligible for unemployment on these grounds, and people who have lost their jobs and then been denied unemployment are usually very much shocked by this. It's like being kicked when you're down, and they want to know what they can do. And so we tell them that the first thing that they need to do is ask for a hearing within 30 days. That's the rule in New York. In other states, it may vary, but here you must ask for a hearing if you want to contest this denial, and then you go to the hearing and you tell your side of the story. MS. GRASSO: John, what kind -- what kind of reasons are allowable to quit a job and still get unemployment? MR. BLOOM: The general term that's used is a change in the terms and conditions of employment. For example, if you were working in midtown Manhattan and all of a sudden your employer tells you, "We're moving the whole operation, you know, 500 miles from here, and you can either join us or, you know, be out of a job." That's a major change in the terms and conditions of employment, and under those circumstances, if you quit rather than commute that distance, you will most likely be eligible to receive unemployment. The other thing is that if there are bad conditions on your job and you've gone to the employer and said, "These conditions are, you know, very difficult, really impossible, and something needs to be done here," and the employer doesn't do anything about it and you then quit for that reason, that can be compelling, also. We had a case, for example, involving a guy who worked as a shoe salesman, and his job involved going up and down the stairs to a basement that was over 100 degrees in the summer and was freezing in the winter, and he kept going to his employer and saying, "Look, you know, I have to spend half my day going, you know, in and out of this, you know, this place in the basement, you know, with these intolerable conditions, and, you know, can we do something about this?" And the boss ignored these complaints, the man ended up quitting, and he was able to receive his unemployment benefits after going to a hearing and explaining that this was the reason why he quit. MS. GRASSO: All right, John. Stay right there. We have you in the newsroom, Michelle in the studio. We're going to go to the phones right now to answer your calls on this topic and your questions. FORCED TO PAY BACK UNEMPLOYMENT INSURANCE Delois from Colorado. Good morning. Q Good morning. MS. GRASSO: Good morning. Do you have a question about unemployment insurance or have you been -- are you unemployed right now? Q Well, actually, this is about my husband. MS. GRASSO: Okay. Go ahead. Q This has happened back in late 1989, but he is -- he was an electrical engineer for a large corporation and was laid off and was expecting unemployment benefits, and as it seemed to be getting close to the time that the benefits were going to expire, we started to get a little bit concerned, and so he -- you know, because he was going to be without any money, so we decided that he should take some kind of a job. MS. GRASSO: Right. Sure. Q He took a job -- it was during the wintertime -- he took a job at a company -- at a store that was paying very little money -- as I said, he was an electrical engineer, so we were really tight, and during the time that he was working there -- and the only reason he took that was because he could get it right then, and once he got the job, after he was there for three weeks, he was told that that was going to be just temporary for the Christmas holidays. MS. GRASSO: All right. Q During the time that he was working there, he got a call from an architectural agency, which offered him a electrical position, which he took. MS. GRASSO: Right. Q He went to work there and found that the difference in the types of work, electrical engineering and architectural engineering did not work for him, and so, as a result, he was unable to stay there, but he did quit the first job to go to the job -- to go to the second job that was paying much more. As a result, unemployment then called him to a hearing. When he went to the hearing, it was brought to his -- well, the person that was at the retail store that he had gone to work for -- they wanted to know why he had quit the job, and he explained to them that it was temporary and that this other job had called him, so it was more money -- -- closer to his salary. He took that. MS. GRASSO: The bottom line, Delois, is what happened? Q Well, the person at the retail store, they -- when they were at the hearing, the person that told him this was no longer working for the retail company -- someone stood in for that person and said, "Well, that was not true," so we then were ruled against. MS. GRASSO: All right. And so -- and now this is back in the '80s, you said? Q Yes, so we're still fighting this -- and now he has gone back to work for the company that laid him off originally -- and he's making -- he's back to the salary that he was, but unemployment wants the money for when he quit the original job. MS. GRASSO: Oh, I see. So they want that money back, so you're fighting against it. Okay. Michelle, this was a very complicated question, but what he did seemed very logical, in that he took a job in his field, what he thought was in his field that paid more, and then he finds out that it's not really what he's qualified to do, so he quits. MS. RAMIREZ: Right. MS. GRASSO: Now. What happened? They've been fighting this for quite some time. MS. RAMIREZ: Unfortunately, leaving a job for another job because one doesn't pay as well and the other one seems to suit your needs better and then deciding that that one doesn't suit your qualifications is not a compelling enough reason to collect unemployment. That is a choice. The policy behind unemployment insurance is to encourage individuals, to keep them on their feet while they're looking for work or once they find work to allow -- you know, to have them continue to work. If he was collecting unemployment insurance during a period of time when he was actually employed, he may be required to pay back the benefits, and I think that that's what the issue is and that's what's going on. MS. GRASSO: Right. Jon, do you often find that there are cases where workers are being required to pay back unemployment insurance because -- their unemployment insurance for what are considered bogus claims? MR. BLOOM: No, no. Sometimes people are asked for money back. It's called a recoverable overpayment. But that situation occurs most often when there's been one finding that they're eligible, and then later on, as the result of a hearing or as the result of a decision by what's called the appeal board here in New York, that decision is reversed against the claimant, and at that point, the claimant must give the money back, or the state will ask for the money back, but it's not generally because people are trying to cheat the system by working and collecting at the same time, and that's not what I hear Delois describing happened to her husband. I don't hear her telling us that he worked and collected at the same time. What happened was that he had this series of jobs and he took a job in the end that was not something that he knew how to do, so therefore he left it and tried to resume his unemployment, and they turned him down. Now, that's the kind of case that we fight all the time. If, you know, if we'd been representing him, we would have argued that, look, he had a compelling reason to quit this job. He'd taken it thinking that he could do the work. It turned out that he couldn't, that it was a completely different kind of engineering than he had the background and training to do, and therefore he's eligible to resume his unemployment. I assume that they tried that and that it didn't work and that now they're trying to appeal that decision to a higher level. MS. GRASSO: All right. Thanks so much for that clarification. WHY DOES UNEMPLOYMENT ONLY LAST SIX MONTHS? Let's see how your stories are ending or beginning. Antonio from Virginia. Welcome to Legal Cafe, Antonio. Do you have a question about unemployment insurance? Q Okay, I have a question for you. I was in the military for six years, and I was wondering, you know, as a member of the armed forces, how come we get treated so unfairly? MS. GRASSO: In other words, now, you left the military voluntarily? Q Yeah, I did. Yes, I did. MS. GRASSO: And so you want to know why you get unemployment insurance? Q No, see, it only lasted like six months, but with most federal jobs, it takes like, you know, it takes six months up to a year to get a good job. MS. GRASSO: So in other words, you think that you should get more unemployment insurance than six months. Q Exactly. MS. GRASSO: Well now, that's a question. Six months -- to most people, you'll say six months seems like a long time, but when you're out there looking for a job, six months can fly by. What's the six months -- that's the ceiling in every state? MS. RAMIREZ: Yes, it is. In fact, unemployment insurance, the time period to collect was actually extended just recently, but six months is it, and that's a policy that's set by, you know, our government. I mean, it's -- you're absolutely correct. Six months can go by like this when you're looking for work, but for those of us who are employed or for employers who have to pay into this fund and pay their insurers to pay it, six months is a very long period of time. MS. GRASSO: It does, so it depends on which side of the fence you're on, as always. APPEALING DENIAL OF UNEMPLOYMENT CLAIM Kim from New Jersey. Good morning, Kim. Thanks for holding. You're on Legal Cafe. Have you ever tried to collect unemployment? Q No, I never collected unemployment before. MS. GRASSO: Your question is? Q My question is recently I had to resign from my job, because of lack of supervision for my daughter. I had a babysitter for her for the time I was working, and she recently moved away, and I didn't have anyone at home. Since it was summertime, I tried to, you know, let the summer go with her being alone -- she's 11 years old, so I figured her being home alone, since she is a little bit, you know, older, but I noticed during the month that she was home alone that things were changing with her and I had to go through some problems. MS. GRASSO: I know. She's still young. I mean, that's a difficult time to tell how old they are, how old is old enough to be home alone. Q Exactly. MS. GRASSO: So I understand completely. So you left your job for that reason? Q Well, I went to my employer -- I had some time coming up for vacation, because it's a busy -- it was a busy season, so I couldn't take my vacation, but I told him since I had some time coming up and I did let them know the problem I was having, it was informed of the problem I was having with child care, and they wouldn't give me the time off because it was a busy season, so I had no choice but to leave. Now I went to apply for unemployment, and they told me it wasn't a good enough reason to leave -- to collect -- so I'm wondering -- I'm in the process of appealing, but I don't know where to go. I've never been through this before, and -- MS. GRASSO: Right. Jon Bloom, we talked a little bit before about valid reasons for leaving employment. Now, child care, to most working mothers, that is a really good reason why you'd have to leave to take care of your child, but do the unemployment insurance boards see it that way? MR. BLOOM: Well, the departments of Labor often will deny people in this kind of situation on grounds that they've left their job for personal reasons, not for something having to do with the job. Usually, by compelling reasons, we're talking about changes in the job or deteriorating conditions at the job, so, you know, she's probably been denied on grounds that she quit her job for personal reasons. On the other hand, if she had time coming to her that she was denied and, you know, she wanted that time in order to find child care, that's a different matter, and in a hearing, that's what she could argue or that's what she could argue together with an advocate. At many of these hearings, people come with advocates -- either lawyers or non-lawyers are allowed to represent people at these administrative hearings, and so that would be her argument, I think. It's not that she quit the job because she was having difficulty finding child care, but that she quit the job because they wouldn't give her time off that was coming to her in order to solve that. MS. GRASSO: And, Jon, briefly, how do you find an advocate? MR. BLOOM: Well, it varies from state to state. In New York, there are two organizations, ours and another sister organization called the Unemployment Action Center that provide free representation to the extent that we're able to. There are also some attorneys and lay advocates, non-lawyer advocates who do this. They're allowed to charge only if they win and when they win, although that, too, can often be too much for most unemployed people to manage. MS. GRASSO: Right. MR. BLOOM: But the Department of Labor in New York is required to compile and to give out on request a list of available attorneys and non-attorney advocates who are there to represent claimants. MS. GRASSO: All right, so, Kim, you might have the same ability in New Jersey, and so as you go through this process, think about the other side of your argument, which Jon just explained. Good luck to you. I'm very sympathetic to that issue. UNEMPLOYMENT PAYMENTS REVOKED MS. GRASSO: All right. Okay. Thanks so much for that, and let's go back to the phones. Nicholas from New York. Good morning, Nicholas. You're on Legal Cafe. Are you employed or unemployed? Q Presently unemployed, but this situation goes back from 1989. MS. GRASSO: Okay. Can you tell us briefly what the problem is? Q I have a question in regards to statute and whether or not unemployment is allowed to do what -- the action they took. I was working part-time and I was collecting unemployment and I was going by the rules, because I was under the impression that you are able to collect if you're working a certain amount of hours. So I followed the rules from the local office and, you know, both of those things occurred. Eight years later, I had just had a position, and the state has decided to deduct money from my paycheck each week. They had written to this employer. My question is, with regards to statute, can they do this if I didn't have a confession of an agreement, if I didn't agree to do this, and that's basically it. MS. GRASSO: Jon Bloom, since they control the money, can they do whatever they want? MR. BLOOM: Well, with due respect to Nicholas, there's something missing from this story, because, you know, in our experience, this kind of thing couldn't happen. Number one, they rarely garnish your wages to recover unemployment benefits. In fact, I've never heard of such a thing in New York. Q Well, this is a first. MR. BLOOM: Well, maybe we should talk after the program and we'll find out what's happened. Q Oh, great. MR. BLOOM: But what does sometimes happen is that if the Department of Labor reverses itself -- in other words, they allow you unemployment and then there's a decision by a -- you know, at a hearing that reverses that and it says, "No, you weren't supposed to get this money and now it's recoverable," what will happen is that when you apply for unemployment again at some point down the line, the Department of Labor will recover the money from before by deducting either part or all of your earlier claim, and they get especially aggressive if you've cheated the system, if you've worked and collected at the same time. Now, you are allowed to work and collect partial unemployment. If you're working part-time, you are allowed to collect partial unemployment. What you're not allowed to do is if you're working full time, you can't then say, "I'm still unemployed," and collect benefits. But it doesn't sound to me like he did anything like that. Q No, no, no, actually there was a hearing and I clearly disagree with the outcome, because exactly what you said, it was their error because basically I did work the allotted time that I was allowed to work and collect. I was, you know, doing absolutely nothing wrong, so there was a hearing -- MR. BLOOM: But if the decision went against you, then, you know, that's a legally binding decision, you know. If you disagree with it, you can try to appeal it, but that decision stands, and they then want money back, and they're going to try to recover it. Now, you know, what I haven't heard of is garnishing a person's wages eight years later or two weeks later, you know, to get that money. Usually what they do is they recover it when and if you apply for unemployment benefits again. Is that what's happening to you, or you're saying they're actually garnishing your wages? Q Actually, I had spoken to somebody from the legal department of the particular state that I'm in, and he said he'd never heard of such a think, unless I confess to it or make some sort of an agreement that they can, in fact, do this. My main concern was the statute, because I spent a day, you know, on line doing some research, and I can't seem to find that they can do such a thing eight years later. That's my other concern. MR. BLOOM: So you're saying that they are garnishing your wages? Q They did. They wrote a letter to the employer where I was working part time and will be working again, and basically they are going to take, they said, 10 percent of the weekly wage -- MS. GRASSO: All right. Nicholas, you know what, I think this is going to be a very complicated situation . I think what we'll do is if you'll stay on the line, we'll get your number, we'll get you in touch with Jon after the show. You can talk more about this, because your situation sounds to be really complicated and really unique, and I don't think we'll be able to wrap it up in the next few minutes, because we have to take a break right now. Sorry. TIPS FOR COLLECTING UNEMPLOYMENT MS. GRASSO: We still have just a few minutes left in the show. Let's go over some of the key legal points we discussed this hour. We'll call this Jon Bloom's House Blend for Quick Benefits. First, apply for unemployment insurance as quickly as possible. You can find your local office in the phone book. You should also tell the truth when applying, including the reasons why you were fired or laid off. Finally, if you think your benefits were wrongfully denied, request a hearing. There might be a way to work out a solution. And, Jon, we have run out of time almost, but we have time for a quick answer from you about what your top tip is for someone who has been denied unemployment benefits. MR. BLOOM: If they believe that they are entitled to benefits and that they might be eligible, they should ask for and go to a hearing. They should not be afraid of that process. You're not on trial here, you're not the defendant. You're going to an administrative hearing. It's very straightforward. All the judge wants to know is what happened, and you have a solid chance of winning your benefits even if you've been denied initially. MS. GRASSO: All right. Jon Bloom, thanks so much for being here -- and for all the practical advice you gave us on this issue. Michelle, do you think you should be represented by someone, advocate or an attorney, when you go into these kind of hearings. Usually you have no money at this point. MS. RAMIREZ: Exactly. Being a management attorney representing employers, I would recommend it for any former employee coming in, and only because I know, for instance, I'm representing the employer as an attorney on the other side. However, the process, as Jon has explained it, is a very informal process, and the administrative law judges are very thorough, kind, and considerate to people who are not represented. They try and seek out the truth themselves, though. MS. GRASSO: And, briefly, should you bring information with you, documentation? MS. RAMIREZ: Always. Bring as much documentation as possible to verify your side of the story, because your employer will definitely do that for themselves. MS. GRASSO: All right. Michelle Ramirez, it's always a pleasure to have you here. MS. RAMIREZ: Thank you. Thanks, June. MS. GRASSO: And we'll see you next time. MS. RAMIREZ: Definitely. MS. GRASSO: It's closing time here at Legal Cafe, but join us tomorrow at 9:00 a.m. Eastern.