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no need for apologies, just serving the point that many denied UI claims will be reassessed for eligibility under PUA. Your son's claim was already in play before implementation of PUA in Oregon. Sounds like you may have at least a fall back if/when/depending upon how his UI appeal plays out.
Funnily enough - I just went to check my sons 'claim status' and ... prior to 4/2 all of his weeks say 'denied' - but from 4/2 on, they say 'claim not processed yet' so I think you are absolutely right!! I think they have his claim 'on hold' because of the PUA and they havent denied it... yet .... until they figure out if he qualifies for that. I sure do hope so!
Thank you for all your help
Kacey
update:
So we started the hearing yesterday. They had the Manager, a person from HR and an attorney!! Then me and my son.
They had apparently sent files/documents to enter into evidence - they did NOT send a copy to my son. The judge asked if they did and they claimed to have sent it to his email address. (I monitor the email address, and it was not sent - or it didnt arrive, anyway).
The judge asked if I (as my sons rep) objected to the file being entered into evidence and I said that yes I did object, because without knowing what was in the file, I couldnt offer a comprehensive rebuttal.
He agreed, and said that the hearing will now be May 6th and told the other side that they MUST send the files ASAP (he repeated that 3 different times) to my son at his HOME address by REAL mail. LOL
Anyway.... so we will have to wait now to take care of business.
The fact that they have an attorney representing them makes me think that theres something 'more' going on here. It also makes me a just a wee bit nervous going up against them!
Kacey
This is what happened last time ^^^
We have the continued hearing today... and they STILL havent sent my son the 'evidence' they want to have accepted.
My thought is that, since they STILL have not complied with the court (the judge told them to send it ASAP) that IF they want to introduce it still... I object. (the judge has a copy but we do not so we dont know what it is they are trying to use to prove misconduct). IF the Judge says we will again continue, My thought is that I object to that and state that the other side has had multiple opportunities and more than a month to send the file, pretty much 'down the street' from their office, to my son, and that they have CHOSEN not to comply with the judge's order to do so and that they must either proceed without benefit of those documents OR the judge must rule in favour of my son (or overturn the denial.. or however its worded).
Am I right here? Or is there a better wording that I can use?
All good until you direct the judge which way to find. That’ll backfire quickly.
Object to a continuance and any evidence.
Well.... the hearing is done.
So... my son checked his mailbox right before the hearing .. he had checked last night - and the hearing was at 930am... so he checked first thing this morning.. and no paperwork. Then he checked at 915am. and there was an envelope NOT mailed.. just placed in his mailbox -and it was the paperwork. So there was no time to read it or anything.
When we got in the hearing, I told the judge that I object to the paperwork being entered into evidence, and why... and his response was 'and?' and I said "because we havent had a chance to even read through it' and he said that he hasnt read through it either. And overruled my objection.
The other side kept referring to people who were witnesses to my sons alleged misconduct - and I asked if those witnesses were present on the phone, and the answer was 'no' and I said that I object because its hearsay, anything those witnesses have to say, that is just being repeated by the boss.. and the judge said that hearsay evidence is admissible in an administrative hearing.
So... Im confused about that. However...
He DID grill them very thoroughly about the paperwork... instances where my son was supposedly counselled... they said it was 'rudeness to clients and neglect of clients' and then referred to portions of the handbook (that they put into evidence) ... but when grilled, couldnt show how anything my son said was against a client. They just said clients were present when it happened.
They also couldnt show neglect to a client. They said my son was watching videos - with one client, when another one (who was the client of someone else) wanted his attention, and he couldnt help them. But the judge asked where the caregiver for that client was and they couldnt answer.
They said there were 3 witnesses to my sons alleged misconduct, but could only remember the name of 2 of them, and of the 2, one of them started after my son had left. I brought that up... so then they hemmed and hawed and then came up with another witness name in that ones place. The judge allowed it... even though none of those witnesses were present.
They testified that my son got no meal break and no breaks at all... that he was 'paid for his breaks and meal break' and not allowed to leave during his entire shift and was not allowed visitors during shift. And then said one of the infractions was him running out front to meet someone who came to drop something off to him. (it was his girlfriend bringing him food). But then it was shown that other staff also had people over.. and in fact those staff members friends actually came in and cooked meals and stuff with them. The boss who was testifying, also had her kids over all the time.
They also said my son said stuff like "this is B**S***, I hate this job". The judge asked my son if he said that.. and my son said no. The judge asked if the boss was lying when she testified to that and my son didnt know what to say.. and replied that. The judge said he wanted 'the truth' and my son said.. the truth is that he wouldnt say something like that. And the judge said 'well did you say it' and my son said 'no' and the judge said 'then why would you phrase it like that... 'I wouldnt say something like that' why not just say 'I didnt say that' So my son said 'I didnt say that'. But it was really confusing... I WANTED to say 'asked and answered' lol but of course, Im not going to say that to the judge
Sooo I dont know how it went... but ... I am, as always, hopeful that the judge didnt find their case compelling enough to maintain the denial.
This is an interesting one. I understand your son's reticence to say flat out "that is a fabrication, I never said that", but you need to understand that the burden of proof always falls on the employer.
Also, hearsay is allowable in an administrative hearing, however, it is given far less weight than documented evidence in the eyes of the court. By objecting to those points, you've raised that issue.
On the bolded - was this actually admitted into the hearing?
I knew the burden was on the employer... but in the midst of everything..I think I lost sight of that a bit... because it felt as though the judge was trying to put the burden on my son... if that makes sense? Ah.. I just realised what you were saying... so.. the problem is that the judge asked if the employer was lying. My son didnt want to out and out say 'yes shes a liar' so he didnt know what to say. I texted him to tell him to say that she was mistaken.. that way he isnt saying she is lying even though she was. She lied about alot of things but to prove it was difficult. I was able to raise a the question of the validity when we caught her misstating a witness... and I think that was a big one.
I didnt realise tho that hearsay was allowable... but Im really glad to hear that its given far less weight!!
Yes.. the bolded was admitted... everything was recorded... and the judge asked the manager WHAT kinds of meal and breaks did my son get.. and how long each was. She said that they arent permitted breaks and meal breaks.. because its not possible for the clients to be left... so they pay for the meals and breaks.
When the judge asked if I had any questions, I specifically addressed that...I didnt ask a question...not really... I said 'I want to make sure I understand that my son wasnt permitted any meal breaks or breaks away from clients or away from having to work, correct?' and the judge said 'thats already been stipulated, Ma'am... its been asked and answered" and I said 'my apologies your honour". Then I asked my son WHO it was that had 'stopped by' and he said 'my girlfriend, bringing me food' and I asked him if anyone else in the company had visitors during the shift and he said 'yes... the boss (the one who had testified that my son wasnt permitted to have visitors during shift) and other staff members, who's friends sometimes came and cooked meals and stuff with them' and the judge asked the other side if they had any questions for my son about this and they said 'no'... so it appears that its 'on the record' because they didnt object, right?
At the end I did once again state that I objected to the evidence being allowed to stand and the judge wasnt happy... he said he is aware of my objection.
Thank you so much for your reply, El Titere
Kacey
PS - The judge asked my son how many hours he typically worked.. and my son was able to put in that there were supposed to be 2 people per house and in the two houses, he was almost always left to work by himself with the clients and that the other three caregivers were in the other house. He also stated that his shift was supposed to be 10 hours but that many times the graveyard person didnt show up or didnt show up for 3 or 4 hours.. so my sons shift became involuntarily a 13 - 20 hour shift with no breaks or meals. The other side didnt object.
Last edited by kaceyellis; 05-06-2020 at 03:52 PM..
Reason: to add
Regarding the admissibility of hearsay testimony in an administrative hearing, it varies by state and which code of administrative procedures they operate under. So, Unemployment may operate under one set of rules while a Rent Control Board may have a different standard they must follow. Admissibility is also highly dictated by BOR decisions and Civil Court rulings.
Hearsay testimony that is admissible usually is based on exactly what a person was told first hand, and not speculative from a third party. So Person A can testify to what they were personally told by Person B, but can't testify to anything Person C may have said to Person B unless Person B specifically said that to Person A. So long as they are limiting the testimony to what was personally told to them, it's allowed. Person A shouldn't be allowed to add in what may have occurred or what they think was being done, just what was actually told to them.
Next the weight of the testimony comes into play. This is when the claimant has the most control over admissibility. If Person A states Person B said you did this or that, you can defeat the value of that testimony by saying it's false, did not happen, it's a lie or anything that comes from your own mouth that it did not happen. Since the only first hand statement to the events comes out of your mouth, and you outright deny what they allege, guess who prevails! People can not be afraid to call someone a liar.
When you object to hearsay evidence in an admin hearing, there are actually two objection you're making. First is as "hearsay" and second as "Not Best Evidence". We all know the hearsay, but "Not Best Evidence" is telling the ALJ the best evidence to support their position was not presented at the hearing. You can use this for hearsay or if they are introducing documents that are not physically present. Examples have been when cameras were present but the employer testifies to what they saw from a video tape but didn't actual bring that video for all to see. Sometimes the ALJ will ask the employer if that evidence/person is available and why wasn't it brought to the hearing.
Hopefully the ALJ, weight the hearsay favorably to you but you never really know what they focused in on when both sides are not running the "A" game. Good luck, fingers crossed..
I'll be honest, it's really hard to keep your composure in these hearings. I've had to do quite a few from the employer side and it's easy to feel like you need to justify your thoughts to the judge, or talk them into thinking the way you are. You look up an hour later and realize you derailed your whole point.
All in all, I think you and your son did well. You could have gone in stronger on the lies and made them prove these facts, rather than just state them, but you did make their case look quite questionable. The one thing that does worry me here is that not much of what would actually be misconduct that was discussed.
You should be in good shape, but it's going to be at least a week before you know.
I was thinking the same thing re the misconduct... however, I think the judge was trying to figure out WHAT exactly misconduct there was... because what the ex employer had said was misconduct... wasnt. They said my son neglected clients and was rude to clients and had no integrity. But when pushed.. it came out that he wasnt rude to clients nor did he neglect them.
Something else I just remembered... was at the end when the judge was asking them about one of the days... and he asked them if it happened that day... or maybe the day before (as in the 15th rather than the 16th) I think because the timeline didnt jell.... but she dug her heels in and said she knows for a fact it was on the 16th. But then when he was questioning my son, what my son said (re the timeline) was that he wasnt working on the 16th. And so when the judge asked the ex employer to clarify what my sons days off were... she said sunday and monday.. which would have been the 15th and 16th and he was let go on the 17th.. and he said the first he knew he was being let go was on the 17th. So her timeline isnt correct and it was shown that my son wasnt even at work on the 16th when she said she talked to him. So... there were a couple different things like that which didnt make sense.. even to the judge.
Im not sure what he will find for misconduct unless he goes by the documentation - but even that is shakey because they refer to incidences but theres no detail... and he questioned them on it... but they couldnt recall.
I know its not like in the movies 'beyond a shadow of a doubt' kind of thing... but I think the preponderance of evidence doesnt show misconduct.
Although that could be my wishful thinking lol
Thank you again so much El Titre for all your insight and help with this
Regarding the admissibility of hearsay testimony in an administrative hearing, it varies by state and which code of administrative procedures they operate under. So, Unemployment may operate under one set of rules while a Rent Control Board may have a different standard they must follow. Admissibility is also highly dictated by BOR decisions and Civil Court rulings.
Hearsay testimony that is admissible usually is based on exactly what a person was told first hand, and not speculative from a third party. So Person A can testify to what they were personally told by Person B, but can't testify to anything Person C may have said to Person B unless Person B specifically said that to Person A. So long as they are limiting the testimony to what was personally told to them, it's allowed. Person A shouldn't be allowed to add in what may have occurred or what they think was being done, just what was actually told to them.
Next the weight of the testimony comes into play. This is when the claimant has the most control over admissibility. If Person A states Person B said you did this or that, you can defeat the value of that testimony by saying it's false, did not happen, it's a lie or anything that comes from your own mouth that it did not happen. Since the only first hand statement to the events comes out of your mouth, and you outright deny what they allege, guess who prevails! People can not be afraid to call someone a liar.
When you object to hearsay evidence in an admin hearing, there are actually two objection you're making. First is as "hearsay" and second as "Not Best Evidence". We all know the hearsay, but "Not Best Evidence" is telling the ALJ the best evidence to support their position was not presented at the hearing. You can use this for hearsay or if they are introducing documents that are not physically present. Examples have been when cameras were present but the employer testifies to what they saw from a video tape but didn't actual bring that video for all to see. Sometimes the ALJ will ask the employer if that evidence/person is available and why wasn't it brought to the hearing.
Hopefully the ALJ, weight the hearsay favorably to you but you never really know what they focused in on when both sides are not running the "A" game. Good luck, fingers crossed..
Thank you Rabrrita for that insight!! I can understand how that could be. I just was a bit taken aback because one of the other posters on here had said that hearsay is not admissable... so it kind of threw me for a loop.
Now I also understand why the judge was so adamant to my son about asking 'did you say that?' and wanted my son to say 'she was lying' because then it would have been out of HIS mouth... not out of person A telling person B (person B, being the ex employer at the hearing).
Im still annoyed about the documents being let into evidence tho... because of not having had a chance to read through them. I know the other side did that on purpose. Additionally, there was a third document added in, from the last hearing.
The bright side is that if he loses this one... its just the back weeks (albeit almost 14 of them!!) that he loses... he can then file on his last job... which was just recently.
I wouldn't call it wishful thinking. It really sounds like the judge was looking for ways to substantiate the employer claim, as this was your appeal. I'm really curious how this will shake out - Oregon is a bipolar state for this stuff, depending on what part of the state you're in you've got completely different sociological leanings.
I've been part of some claims when we had an operations center in Hermiston that I "knew" we had a really shaky case and the courts held it up. At the same time, I've had cases in the Portland area where there was direct drug use on premises that they found "testimony not convincing" when we only had witnesses and no video.
Ohhh maybe we are in luck then!! We are closer to Portland than we are to Hermiston!! lol
And yeah... he was really grilling the other side... but I feel as though he kept coming up empty handed. I didnt like him. He was obnoxious. Maybe he was tired or something....
The last time we had a hearing (with a different judge) he was really nice.. and would say things like 'typically, you shouldnt ask that' or 'ohhh in cases like this, such and such isnt permitted'. He is the one that overturned the denial.
But this judge ... his whole demeanor was as though I (me, not the other side) was wasting his time and I was an annoyance LOL
But... we will see how it goes. Im just happy its over!
Kacey
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Continued hearing today... and....
