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Just wanted to let you know that I think it went well. I don't really have an inkling what the outcome will be but the judge wrote down the August 31st start date, for that class, that the normal procedures for adjunct professors is that we start the week that the first classes begin - and that I was a last minute new hire at that one particular school. No one from the school or the EDD was there. It was just myself and the judge- the whole thing lasted maybe 15 minutes. I was able to look over the file when I got there - and I got there early- it had nothing in it I didn't already know. So I proceeded as discussed. Janja1 you were very helpful in your phraseology - I was able to convey about the different pay procedures of different schools, with different start dates, etc. And that we always prep for classes but don't get paid for that - we are usually contracted from a start to finish date.
I felt good after I left. I guess we'll see how it goes now. Thanks again everyone - this was all very helpful.
I did not see this posted until after the fact. Sorry about that.
Quote:
Originally Posted by janja1
Again... please reconsider. I must have been paid is what someone says when they are making their best guess. I WAS paid would be what someone who knew that for a fact would say.
I am still of the opinion that you do not know for a fact what that pay was for. I know you want to be truthful -- but an honest answer would be "I do not know for sure what that pay was for. The semester started August 31." -- If you feel the need to share your guess, I would still temper it with "I was not aware at the time whether I was paid for any prep time. And even at this point I do not know for certain, I would only be guessing."
I did tell the judge that I would be making assumptions as to what happened and I didn't know for a fact. All I know is I thought the pay period was after the pay period in question here. And that I had never been paid before for prep - or creating a syllabus ahead of time for any other school I had taught for - Adjuncts are expected to do that, I told the judge. But we get usually get paid a flat fee that begins the first week of the class/semester and sometimes we get paid a month later, sometimes bi-monthly.
Maybe they should start requiring colleges to WARN faculty when they will be paid - so faculty don't get all tangled up in these several years after the fact webs of trying to figure out their pay system.
Even in being truthful -- You never hear someone sworn in with the statement "Do you swear to make a guess, your best guess, and nothing but your best guess." Anything you don't know for a fact, is a guess. No matter how good the guess might be, it is still a guess.
You are not being untruthful if you refuse to engage in all the "what it might have been" scenarios. You didn't know for a fact that you were working prior to August 31. And you don't know it for a fact now."
Personally, I wish the colleges would stop acting like adjunct faculty don't work until the minute they step in the classroom. Wouldn't that be wonderful if we actually did get paid for prep work! Wow what a concept - and what about all the prep in creating the class - and some colleges want to own what you create even if you've taught something similar somewhere else - most non-profits colleges don't require that but there are some onerous for-profit schools that want to own every idea you have that you teach in your class and not pay you for it. We're not working for a tech company that pays you a lot and then owns your every thought.
I am hoping you luck out and get an ALJ who has done some adjunct teaching. They would probably be sitting there thinking, "I know what you mean. I never could figure out my pay checks either." She seemed matter-of-fact - and as I stated I didn't really get an inkling of one way or another except that she seemed to get the confusion I was feeling - she didn't state it but I felt she played a good poker face. I think she saw I was straightforward. I put a muzzle on my mouth not to over-explain as I tend to do.
I would encourage you to get a copy of your file prior to the hearing - not just 15 minutes before - and see what is in there. Unfortunately there wasn't any time - as I was TEACHING down in orange county at Chapman and then Columbia College Chicago's LA semester and at a school called Studio School - which was formerly the school that is in question here - they've changed ownership 3 times in 2 years - it is a for-profit theatre, film, TV and Digital Media school.
In my case, I did not have a copy of the hearing file. (That was in my pre-citydata days.) However, my employer's payroll department told me they don't even report earnings by the week. They report them by the quarter. But someone up somewhere looked at the figures and decided I earned a huge amount of money in the first week in January. For the most part my defense was there was no way I could have earned that amount before the semester had even started. Actually, I argued my case by letter. (That was in my pre-citydata days.) My hearing was cancelled and I was told I didn't owe anything.I hope that happens for me. All I know is I think I presented my case well. We'll just have to see.
If you knew for a fact you were getting paid for that week and lied about it -- that would be a different matter. But you didn't and you don't.
It was in Inglewood near the airport - 3:15pm this past Friday. I think I was the last case of the day - the person who was scheduled to be before me never showed up!
Just wanted to let you know that I think it went well. I don't really have an inkling what the outcome will be but the judge wrote down the August 31st start date, for that class, that the normal procedures for adjunct professors is that we start the week that the first classes begin - and that I was a last minute new hire at that one particular school. No one from the school or the EDD was there. It was just myself and the judge- the whole thing lasted maybe 15 minutes. I was able to look over the file when I got there - and I got there early- it had nothing in it I didn't already know. So I proceeded as discussed. Janja1 you were very helpful in your phraseology - I was able to convey about the different pay procedures of different schools, with different start dates, etc. And that we always prep for classes but don't get paid for that - we are usually contracted from a start to finish date.
I felt good after I left. I guess we'll see how it goes now. Thanks again everyone - this was all very helpful.
Hopefully, in the very least, they will waive the penalties. In the very most, they will throw out the over payment. I am not as certain on that one. Part of it might depend on what is noted in the records regarding all your calls trying to straighten it out.
However, I doubt there is anything in your record that actually proves you actually worked during that time period. Though the assumption would be that if someone gets a paycheck, that means they worked during the two weeks preceding that- it is not always the case with adjunct employees.
It is kind of odd that both of us received an over payment notice a couple years after the week(s) in question. In my case, I couldn't figure out how they even came up with the amount. It was some crazy high amount -- something like about half of the amount I got paid for the entire semester. (And again, my employer stated they just report what I earn each quarter.) I knew there was no way I could have earned 1/2 the amount of my semester's pay in the week starting Jan 1, when the semester didn't even start until mid-January.
The time I drew UI more recently, I was partially unemployed, teaching one class. The school involved didn't pay by classroom hours; they paid a certain amount per class. In reporting my earnings, I took the entire amount I would earn for the semester, and divided it by the number of weeks I was teaching. I told the UI person that is how I was reporting the earnings. But who knows, what will happen. A couple of years from now, I might get an over payment notice, especially if they decide to take my employer's quarterly report and credit the entire amount to a period before the semester started - or any given week in the beginning of the semester / quarter.
I received the judgment and I WON THE APPEAL!!! And I think there's an interesting decision that Janja1 you need to know about it as I think it may help you, too. It's in bold below.
First off, the first notice was whether I was ineligible for benefits for the weeks in question ending Aug 26, 2017. The judge ruled the department notice is affirmed. HOWEVER - read on...
The second decision was about the hold on future benefits - the six-week benefits penalty. The judge cited PB 224 which as you know is that a Claimant is entitled to a presumption of innocence - that neither simple negligence nor innocent mistake can support a charge of wilful omission or commission of an act.
The burden of proving a false statement or withholding of material information is on the department. (Thank you Chyvan for reminding me of that!). The judge stated the claimant credibly testified that she did not realize the school considered her pre-teaching activities to be work for which she would be paid and further stated that this had never been her experience on other teaching jobs. There was no evidence in rebuttal to the claimant's testimony. Under these circumstances, the claimant's failure to report her work and wages is attributed to simple negligence. There's no evidence that the claimant intended to conceal her earnings from the department. The department as not sustained the burden of proof.
The claimant did not make a willful false statement in order to obtain benefits. She is not disqualified under code section 1257a. The six-week penalty is therefore canceled. The department decision is reversed. The claimant is not disqualified for benefits under Unemployment Insurance Code section 1257a.
The third notice is incredibly interesting - take note Janja1.
This one rescinds the 30% penalty but there's more.
The issues are:
1) whether the claimant was overpaid the benefits and if so whether the claimant is liable for the repayment of those benefits, and
2) Whether the claimant was overpaid benefits due to a false statement or representation, or willful withholding of a material fact when claiming benefits.
The decision and reason for the decision:
Any person who is overpaid unemployment insurance benefits is liable for repayment unless the overpayment was not due to fraud, misrepresentation or willful nondisclosure, was receives without fault, and its recovery would be against equity and good conscience (UI Code section 1375a)
It goes on and talks about 1375.1 which basically states if an individual is overpaid benefits due to false statement and actual knowledge, the EDD can assess an amount equal to 30% of the overpayment amount.
Section 1376 of the UI code provides, in part, that in the absence of fraud, misrepresentation, or willful nondisclosure, notice of the overpayment determination shall be mailed or personally served within the latest of the following periods:
a) Not later than one year after the close of the benefit year in which the overpayment was made
b) Not later than six months after the date of a back-pay award was made.
In Precedent Decision PM345, the claimant was overpaid but the benefits were not obtained by fraud, misrepresentation or willful nondisclosure. The appeals board held that the overpayment assessment was barred as the notice of overpayment was issued more than one year after the close of the benefit year in which the overpayment occurred.
In this case, the claimant was overpaid benefits of $546 because she failed to report two weeks of earnings. That was not done willfully or intentionally. The claimant did not realize she would be paid for any preparations she made in the weeks prior to actually teaching her classes.
As the credible evidence establishes that the overpayment was not caused by fraud, misrepresentation, or willful nondisclosure, and as the overpayment notice was mailed more than one year beyond the expiration of the benefit year in which the overpayment occurred, the overpayment assessment is barred under code section 1376.
DECISION: The notice of overpayment is reversed. The Department is barred from assessing an overpayment under UI Code 1376. The claimant is not required to repay the overpayment or penalty.
So that's the decision - I would not have been as prepared if it wasn't for this board. I thought I had done well in the hearing but was prepared to pay back the overpayment and hoped the judge would see this was not intentional - but I had no idea of the statute of limitations.
So Janji1 - if they come after you for something that was a few years go, they do not have the right to do so. Per UI Code 1376.
At first I was ticked off that you mentioned the pre-employment prep work, BUT in the end, it didn't matter. You got your benefits, and get to keep them, and had all the penalties waived.
By typing in this decision, we now have TWO ways to help people: lack of evidence AND it could be that EDD took too long to discover the error.
At first I was ticked off that you mentioned the pre-employment prep work, BUT in the end, it didn't matter. You got your benefits, and get to keep them, and had all the penalties waived.
By typing in this decision, we now have TWO ways to help people: lack of evidence AND it could be that EDD took too long to discover the error.
That's why I typed it all out for you as that expiration of benefits was something I hadn't seen on these boards - and I thought that could help more people as well.
They already paid me the one week of held pay - that's how fast it happened once the judge's decision came down. Saw the judge on Friday. Received the decision Wednesday but the money held for the benefit holdback was in the account on Tuesday (though I didn't know it yet)! That was pretty impressive.
I think the Judge really understood about prepping for classes but that in actuality we get paid from the week our classes begin over 15 or 16 weeks depending on the school. Both you and Janja1 were a tremendous help. Can't thank you enough!
That is wonderful news! So now you don't have to pay back anything. Just think of how much time was wasted (your time, EDD time, the ALJ time) dealing with this, when they never should have sent you a bill in the first place.
I need to check my state's regulations and see if there is a similar law. I think, in my case, I drew UI in 2005, and was notified of the over payment in 2007.
That is wonderful news! So now you don't have to pay back anything. Just think of how much time was wasted (your time, EDD time, the ALJ time) dealing with this, when they never should have sent you a bill in the first place.
I need to check my state's regulations and see if there is a similar law. I think, in my case, I drew UI in 2005, and was notified of the over payment in 2007.
A lot of time wasted - it was an interesting process - but it just proves you have to try and fight these things - but the biggest revelation was the law that states that I was notified outside the statue of limitations.
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