Applying and Appealing Archives

“How do I resign and still get unemployment benefits?”

Published on March 16th, 2011 by Alan L Sklover

Question: A few months ago my good working relationship with my boss changed by 180 degrees. Though six months ago she gave me a good review, she seems now to have made up her mind to make sure I am a failure.

I feel it is a very hostile environment, and the feedback I am getting is dishonest. Even the Human Resources personnel has said to me that I was treated unfairly and unprofessionally. 

Recently I was put on a Performance Improvement Plan (they called it a “Performance Management Plan”) that required me to complete in two weeks vague and unmeasurable goals that no person on earth could complete in four weeks. They told me that if I did not reach their unreachable goal, I would be terminated for not meeting performance expectations.

They also offered me a second option: stay for six weeks while I look for a new job, and then resign. I chose this second option in order to leave me with a “clean record,” and hopefully make myself eligible for unemployment benefits. 

While I did choose “flight” over “fight,” what do you suggest I put in my resignation letter in order to make myself eligible for unemployment benefits?       

Lily
Oakton, Virginia

Answer: Dear Lily:

The question you pose is a question on the minds of many people in your circumstances. Here are my suggestions:

a. First, ask that your employer agree not to contest your unemployment application. Most people in your circumstances don’t think of it, but sometimes you can get what you want by simply asking for it. So, I suggest you ask your Human Resources representative if he or she will agree, under the circumstances, not to contest your application for unemployment benefits. If he or she agrees, then you should politely thank – and confirm – in an email, such as ‘Thank you, so much, for your agreeing not to contest my unemployment application.”

For many people, it’s a great idea to ask your former employer not to oppose your Unemployment Benefits application, and to give them great reasons why not to do that. Use our “Model Letter Requesting Employer’s Assurance Not to Contest Your Unemployment Application” with Ten Great Reasons. “What to Say, How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

b. Second, your resignation letter should address what happened to you, and that you had no choice but to leave. As I think you know, leaving a job “voluntarily” will make you ineligible for unemployment benefits, but leaving a job “involuntarily,” for the right reasons, will not disqualify you. So, in your resignation letter, you should use words and phrases like “not my choice,” “involuntary,” and “hostility that I reported.” If your employer contests your application for unemployment benefits, your resignation letter will be one piece of evidence that you will be able to produce to unemployment officials who review your case, and it will be a strong piece of evidence in your favor.

If you would like to obtain a Model “Involuntary Resignation” Letter that you can adapt for your own use [click here].

c. Third, it seems to me you were “forced” into resigning in order to get six weeks more of employment. The “choice” you were given – immediate firing or resignation effective six weeks later – also strongly supports that you did not “voluntarily” submit that resignation, but rather did it in order to get six weeks more of employment. That can hardly be characterized as “voluntary.”
 
d. Fourth, on your unemployment application, if you can, use the words “involuntary,” “hostility,” “dishonest,”and “damage to my health.” These days, most states permit applicants for unemployment benefits to apply online, in which certain boxes are simply checked off. In applying for unemployment benefits, if there is a place to insert any language other than boxes to check off, try to insert words indicating what happened to you, and that your “resignation” was forced, involuntary and a response to hostility. The same is true for your testimony at any unemployment hearing that may take place. This can only help you get awarded unemployment benefits.

I hope this is helpful, and that you will be awarded the unemployment benefits it seems you so rightly deserve.

Best,
Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!

© 2011 Alan L. Sklover, All Rights Reserved.

“I have an Unemployment Benefits Appeal Hearing coming up. What do I do?”

Published on September 19th, 2010 by Alan L Sklover

Question: I was terminated about eight months ago, and I applied for unemployment benefits. After an initial Hearing I was granted benefits, and they started being paid about a month ago.

Now, my former employer has filed an Appeal from that decision, claiming that I was fired for “bad conduct,” that is, neglecting my duties at work.

I tried to request that the Unemployment Department issue a “subpoena” to make sure that a former colleague at work would attend the Appeal Hearing, because she knows I did not neglect my work. However, my request for a subpoena was turned down.

The Appeal Hearing is coming up. What should I do?

         Francis 
         Clarksville, Tennessee 

Answer: Francis, while I am not a member of the Bar of the State of Tennessee, my review of Tennessee’s Unemployment Appeals procedures on their website [www.Tennessee.gov/labor-wfd/] indicates to me that they are very similar to the Unemployment Appeals procedures of most states:

1. You have a right to testify on your own behalf, and your testimony will be under oath and recorded.
2. You can bring witnesses to testify for you, but the witnesses must have firsthand knowledge of the issues involved.
3. You have a right to ask the Appeals Tribunal to subpoena a witness, but they can either say “yes” or “no” depending on their view of whether the witness has material and relevant firsthand knowledge.
4. You can present documents into evidence. [If you do, bring the original and two copies of any you wish to place into evidence.]
5. You have a right to ask your employer questions, and their witnesses, too, if they present any.
6. You have a right to examine any documents your employer has presented into evidence.
7. You have a right to be represented by an attorney. If you cannot afford one, you might be able to get free or low-cost attorney services from your local Bar Association.

Unemployment Benefit Hearings and Appeals Hearings are rather informal, and designed to permit non-lawyers to represent themselves. I don’t think you should worry too much about the decision of the Appeals Tribunal not to issue a subpoena, for it was probably based on their view that another employee would not necessarily know if you did or did not neglect your work.

Bear in mind, too, that you have “won” the first round; that is, you were adjudged to be entitled to Unemployment Benefits. Your former employer now needs to overturn that decision, and that is not a very easy burden to carry.

If you are still concerned, as noted in Item 7 above, you might either retain an attorney to assist you, or if your finances are limited, seek free or low-cost assistance from your local bar association.

Hope this helps. Good luck to you.

          Best, Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!

© 2010 Alan L. Sklover, All Rights Reserved.

“For my appeal of a denial of unemployment benefits, should I point out that I am receiving COBRA subsidy, which makes no sense?”

Published on September 15th, 2010 by Alan L Sklover

Question: I was recently forced to leave my job, and I applied for unemployment benefits. My employer fought me on this, claiming I voluntarily quit my job. The state unemployment department denied me unemployment benefits. I am appealing.

There is a contradiction in how my employer seems to be treating my departure. For the state unemployment authorities, they claimed I quit voluntarily. However, they are also paying me the American Recovery and Reinvestment Act of 2010 (“ARRA”) COBRA subsidy of 65% of my health insurance premium, even though the law says that only people who lose their jobs involuntarily are entitled to this.

Should I raise this inconsistency in my appeal of the denial of my unemployment benefits?

         Helen 
         Brooklyn, New York

Answer: Helen, there are two big reasons I don’t think raising the inconsistency would be a good idea.

First, the unemployment authorities care about just one thing: did you leave your job voluntarily or involuntarily? Nothing else really matters to them. While it might seem to you that the “inconsistency” suggests that your former employer has acknowledged that you left involuntarily, I don’t think it will convince the unemployment people. I think they will say, “We are not experts on ARRA. We don’t care about ARRA. For all we know, the employer made an error with ARRA.”

Second, I am concerned that, if you raise the issue of the ARRA COBRA subsidy you are receiving, then you just might end up (a) having your former employer stop that subsidy on the basis that it made a mistake giving it to you in the first place, (b) having your former employer demand you reimburse them for the ARRA COBRA subsidy you have received in the past, and (c) also ending up with no unemployment benefits. That would probably spell disaster for you.

If you want to win your appeal, I suggest you focus on just that. Gather up and submit any and all forms of evidence of involuntary, forced, or coerced departure, such as (i) witnesses of hostile or abusive treatment, (ii) a letter from a doctor saying that your work made you sick, (iii) emails in which your employer threatened your health or safety, or (iv) similar facts, events and circumstances that would make an unemployment examiner say to himself or herself, “That sounds like a forced departure to me.”

That is how I see it. Hope it makes sense to you. 

           Best, Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!

© 2010 Alan L. Sklover, All Rights Reserved.

“I’ve been denied unemployment, and I lost my appeal. I’m considering appealing again. Your thoughts?”

Published on November 18th, 2009 by Alan L Sklover

Question: I was fired from a healthcare facility about one year ago. The facility was full of hostility and very dysfunctional. The CFO fired me for asking too many questions. I did not receive any unemployment benefits because they let me go for insubordination.

Since then, the CFO who directed that I be fired, the HR Generalist who fired me, the person who replaced me, and the CEO himself, have all been let go.

I appealed my denial of unemployment benefits, and I am now thinking of appealing that first appeal. It seems that I would have to hire a lawyer for a second appeal, since there are so many “hoops” to jump through.

Sue
Cloquet, Minnesota

Answer: The laws and regulations that cover unemployment are different for each state. While I am not admitted to practice law in Minnesota (where I once lived), I did find a good summary of Minnesota’s rules and regulations concerning Unemployment Insurance appeals at www.uimn.org. As you will see if you go to that website, Minnesota law provides for (1) an initial hearing, (2) a request for reconsideration of your decision by the same unemployment law judge that made the initial decision, and (3) a formal appeal to the Minnesota Court of Appeals.

On that website you will also see that you are provided with an Appeal Hearing Guide and a list of Frequently Asked Questions.

The entire process, including the appeals process, seems to be rather “applicant-friendly,” not necessitating the use of an attorney. You may, in fact, have an advantage at this time, as the employer’s witnesses are no longer readily available to it.

If you still believe you need an attorney to go forward, I might suggest you look into organizations in your area that provide attorneys, or at least lower fees, for those who cannot afford them, such as the National Employment Lawyers Association, Legal Aide, and the like. You might also seek the assistance of the referral service of your local bar association.

As you’ve no doubt learned, unemployment insurance is generally denied to employees who have been terminated due to bad behavior, such as insubordination. However, insubordination is not always bad behavior, such as refusing to engage in dangerous, improper, illegal or other wrongful behavior. Likewise, insubordination may not be bad behavior for several other reasons such as if the person directing you to do something was not authorized to direct you to do so.

My suggestion is that, if you believe your “insubordination” was not insubordination, or was justified for one or more reasons, don’t be afraid, intimidated or confused by the “legal” aspects of dealing with a court. Court personnel are almost always quite friendly, helpful and flexible when dealing with non-lawyers who are trying to represent themselves.

My best to you,
Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!

© 2009 Alan L. Sklover, All Rights Reserved.

“I’ve collected three months of severance. Can I still file for unemployment compensation now?”

Published on October 10th, 2009 by Alan L Sklover

Question: I was laid off in June and given three months of severance. I was also paid for my COBRA expenses under the Economic Recovery Act. As part of my severance, my company’s HR promised that they would not contest any application I might make for unemployment insurance. Can I still apply now?

Geraldo
Queens, New York

Answer: Yes, you can still apply now for unemployment insurance benefits.

From the facts you have presented, you were probably entitled to collect unemployment insurance from June, when you were initially laid off, even though you were collecting severance. Like most states, New York does not deny unemployment benefits to a person solely on the basis that he or she is collecting separation pay or severance.

If you would like to request credit now for the period of time you did not file, write to: NYS Dept. of Labor, Central Support Unit, P.O. Box 15130, Albany NY 12212. Your letter should include your name, address, telephone number, Social Security number, the period of time for which you would like credit, and the reason you did not file your claim when you were terminated in June. A review and determination will then be made, and you will be contacted with an answer.

Best, Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!

© 2009 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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