Articles Posted in Unemployment Appeals

As regular readers know, I handle numerous unemployment appeals on behalf of persons who have either been denied unemployment benefits on the grounds that they engaged in misconduct or gross misconduct or voluntarily resigned their job. I thought I would simply list a few of my recent cases to give you an idea of the types of issues that sometimes arise in unemployment appeals hearings:

* Claimant was disqualified for gross misconduct for allegedly being a no-call/no-show on two occasions. At the hearing, the employer failed to produce any evidence to refute the claimant’s testimony that he had, in fact, called in on both days where he had not come to work in compliance with the employer’s policy. The gross misconduct finding was reversed.

* Claimant was disqualified for gross misconduct for allegedly fighting with her manager and walking off the job without permission. At the hearing, the manager admitted that he instigated the fight and began cursing at the claimant, and a coworker admitted giving the claimant permission to leave the job early. The gross misconduct finding was reversed.

Many people who contact me to challenge the denial of their unemployment benefits are pleasantly surprised to learn that even though they’ve been found to have engaged in gross misconduct because they got into an altercation with their supervisor, they may still be entitled to unemployment benefits. The reason is simple — when a hearing examiner conducts an appeal, the examiner must determine if the employee engaged in gross misconduct, simple misconduct or no misconduct, and therefore the examiner analyzes several different factors, such as whether the employee initiated the altercation or was provoked by the supervisor, whether the employee used profanity, and if so, whether the supervisor used profanity, whether the employee made any threatening statements or yelled at the supervisor, whether the altercation occurred in view of customers, and whether the altercation was disruptive. If the answers to these questions are negative; in other words, if the employee did not start the fight, if the employee did not use any profanity or threatening language, if the altercation took place out of sight of customers and if the altercation was not disruptive, then the employee may be entitled to unemployment benefits — even though the employee was involved in an altercation with a manager.

Sometimes people come to me and ask whether they can obtain unemployment benefits in Maryland if they voluntarily quit their job. The short answer is, it depends. If you quit for a better job, then you will not qualify for unemployment. The same is true if you quit because your spouse obtained a higher-paying job elsewhere. If the reason you quit, however, was because you were being mistreated or harassed, or if you were promised a raise that was never given, then you might qualify for unemployment. Likewise, if you quit your job because you were asked to perform an unethical or illegal act, you will likely qualify for unemployment benefits. Moreover, if you quit your job because you are unable to keep working for medical reasons or an injury, you may qualify for unemployment. Ultimately, if you are unsure whether you qualify for unemployment benefits, contact me for a short — and free — consultation and I will try to answer your questions.

The biggest problem that I encounter when potential clients contact me about providing legal advice relating to an unemployment appeal is that people wait too long to contact an attorney. Instead of calling an attorney, such as myself, to assist them when they are initially denied unemployment benefits, or when their employer appeals their award of unemployment benefits, they try to handle the appeal by themselves. Then they lose the appeal. Then they contact me and ask for my help. The problem is that once you have lost an unemployment appeal, it is extremely difficult to get that decision reversed. The reason is because the Unemployment Appeals Board does not usually allow claimants to present new evidence or witnesses. Thus, if you did not present the evidence at the first appeal, you are stuck with the facts that you presented. Which is not good if you lost the appeal. So, the lesson is simple — don’t wait to contact an attorney, whether me or a different attorney!

When it comes to areas of Maryland law that are fundamentally flawed, that scream out for statutory revision, that overwhelmingly favor employers, several topics always come to mind: a) overtime laws that do not allow liquidated or punitive damages, b) the complete lack of family and medical leave for employers with less than 50 employees, and c) the broad and unfair enforceability of non-compete agreements. Few Maryland employment attorneys realize, however, that Maryland’s unemployment appeals laws are structurally biased in favor of employers.

The reason for this inherent favortism is simple — Maryland law forbids attorneys from being paid more than 1.5x the weekly benefit amount that their client would receive if their client prevails at the hearing. In other words, if an unemployed client would receive the maximum payment of approximately $340 per week, the attorney is limited to charging a fee of $510. And to charge that fee, the attorney must seek approval from the Agency. To put those numbers in perspective, if an attorney spends ten hours on an unemployment case, the attorney will be paid a maximum amount of about $50 per hour — which is precisely why most attorneys, even employment attorneys, will not take unemployment appeals cases.

This absurdly narrow restriction on attorneys’ fees is completely unjustified — for a client who remains on unemployment for the full term, it results in a fee that totals about six percent of the total award — well below the contingency fee percentages charged by lawyers in virtually every other type of case. And the end result is that employers show up at these hearings with attorneys or unemployment specialists, while employees have to fend for themselves, often with no understanding of the evidentiary burden they must carry to prove defenses such as “good cause” for a voluntary resignation. Unfortunately, once the hearing is finished, any further appeals are not de novo, but are based on the record created in the first appeal, so the chances for reversal are between slim and none.