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Unemployment Law
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Contact Mark Risk

Address: 932 Rose Ct. Traverse City, MI 49686

Telephone: (231) 941-0054

Fax: (231) 941-4991

Email: markrisk@gmail.com

Proudly representing clients in Northwest Michigan including:

Grand Traverse, Leelanau, Antrim, Benzie, Manistee, Kalkaska, Emmet, Wexford, and other counties throughout Michigan

If you're having trouble with Unemployment Compensation and you need legal advice you have come to the right place.

 I have 31 years experience and served 12 years as an Administrative Law Judge for the Unemployment Department 


Tuesday
Jul192011

Helping Your Attorney Prepare for the Hearing  

Different Attorneys have different ways of preparing for a hearing.  I like my client to prepare two types of documents.  The first is a table of relevant dates.  The second is a narrative of what happened.  Both should be in chronological order, in other words starting with the oldest event and going forward to the most recent event.  

I’d much rather have too much information rather than too little.  Most clients don’t have a real good idea what will be the most useful information and which will be the least.  So having as much as I can is helpful to me in sorting out what to use and what not.

Also, cases are won on the details.  Generally, the more details you can recall the credible you will be.   Examples of poor witness credibility is where the witness can’t recall if a conversation was over the phone or in person, if a letter was faxed, handed to someone or sent in the mail.  Other examples are where a witness can’t recall where a meeting took place or who was present.

On the other hand, a witness testifies that she hand delivered a Doctor’s slip to a meeting in conference room “A” where she, her supervisor and Jill from Human Resources were meeting on June 13, 2010 at 3:00 pm. The meeting lasted 45 minutes.  This is a good example of details making the recollection appear more credible and reliable.

Here are some short examples of what these documents should look like.

Table of dates:

 1/20/11. Brought in Doctors excuse.  I was told to still call in every day.

 1/21/11.  I called in sick and left a message on the call in machine.  I put the phone on  speaker phone so my wife could hear.

 1/22/11.  I again called in sick.  Again my wife hears the call on speaker phone.

 1/23/11.  I again called in sick.  My wife again heard the call.

 1/23/11.  Got a call from work saying I had quit for no-show no-call for three days.

 1/25/11.  Got a letter in the mail saying I had quit. 


Narrative:

Christmas Eve I was working  some chemicals were spilled at work and I was told to clean them up.  I felt dizzy afterwords but was ok later.  A few weeks later I passed out at work.   I didn’t know what it was but didn’t think it was the chemicals yet. No other problems that day.  A few days later I felt dizzy and later passed out at work.  Was sent home. I went to Doctors.  I was examined and test taken and told to go home and to work the next day.

That night I got very sick, throwing up and very dizzy.  I went into Emergency.  They examined me, gave me some medicine and sent me home.

I went to the Doctors the next day.  He wrote me a note to be off work for 30 days until  the tests and stuff could be completed.

On January 20 I brought the Doctors note into work.  They didn’t make a copy of it and gave it back to me.  I was told to call in every day I was going to miss work.

I called in every day the next three days.  On January 23 I got a call from Human Resources saying I was a no-show no-call for three days and had quit.  I got a letter the next day.

You can help your attorney prepare my composing these two documents and any others your attorney may want.

Friday
Mar252011

Are you an employee or a subcontractor?

Some employers are calling “employees” subcontractors.  This is done for a variety of reasons.  This usually includes not having to pay for workers compensation insurance and unemployment insurance.  This can add up to huge savings.

But what your employer calls you is not necessarily what you are.  You can call an apple an orange, but it does not make it so.  If you believe you are really an employee then file for benefits. An Administrative Law Judge will decide which one  you are.

Photo: Mas AbieIn Michigan the most referred to case on this issue is McKissic v Bodine, 42 Mich App 203 (1972); lv den 388 Mich 780 (1972).  Here the Court set out a test of eight factors to look at to make the decision.

The Court stated: “The test to determine whether an employee-employer relationship exists for purposes of the Worker's Compensation Act is the "economic reality test", and the factors used to apply the test are whether: (1) the employer will incur liability if the relationship terminates at will; (2) the work performed is an integral part of the employer's business; (3) the employee primarily depends upon the wages for living expenses; (4) the employee furnishes equipment and material; (5) the employee holds himself out to the public as able to perform certain tasks; (6) the work involved is customarily performed by an independent contractor. Along with (7) the factors of control, payment of wages, maintenance of discipline, and the right to engage or discharge employees; and (8) weighing those factors which will most favorably effectuate the purposes of the Act.

Obviously, this is a complicated test.  But if it can be simplified I’d say it looks at degree of control.  The more the employer controls what you do, where you do it, how you do it and when you do it, determines if you are an employee or subcontractor.  The more the control the more likely you are an employee.

If you have any questions regarding your status as an employee or subcontractor, you should contact a lawyer who is familiar with unemployment law.

 

Thursday
Mar032011

Quit or Fired - How the law views a separation

Photo: Kay HendryI frequently hear that an employee was given the opportunity to quit rather than be fired.  Most people do not know what the law is on the issue and are unsure of what to do.  The following are some reasons why quitting may prove to be the better option. 

First, it looks better on your resume if you quit rather than being fired.  Second, the Unemployment Agency knows this situation comes up quite often.  They don’t look at what the parties called the “separation”. They look at whether or not the claimant “voluntarily” quit.  They also look at who initiated the separation from employment.

When the employer gives you the choice to quit or be fired, this is not “voluntary”.  The Courts have called this a “Hobson’s Choice”.  A “Hobson’s Choice” means no real choice at all.  The term has various origins.  I heard that it came from a character in a Charles Dickens novel named Mr. Hobson.  In any event the Unemployment Agency considers this a firing and not a quit.

A word of caution; make sure that there is something in writing that the employer gave you this choice.  You do not want the employer to later claim there was no discussion of firing.  I’ve even had cases where a year later an employer claimed an employee quit rather than was laid off.  So, be prepared and keep any employment documents on file to be safe.

Monday
Feb212011

The Claim Through The Hearing - Each Step Counts

After you file a claim it is important to remember to keep calling Marvin.  Marvin is the name for the computer system by which you report your information to the Unemployment Agency Marvin Stands for Michigan’s Automated Response Voice Interactive Network.  You could eventually win your claim but not receive any benefits because you have failed to report to Marvin.

There are a number of legal steps that may need to be taken in order for you to prevail on your claim and receive benefits.  First you file a claim.  You provide a statement to the Agency as to what happened that caused the job separation.  The Employer will be asked by the Agency to provide their statement of what they perceive happened.

Next the Agency looks at the two statements.  They issue a “Determination” or decision as to who wins and why.  Either party can appeal this decision. If you win, you don’t need to do a thing. As long as the employer does not appeal you will receive benefits usually within weeks.  However, if the employer appeals you may be contacted to give an additional statement. If you lose you need to appeal.  This can be very simple.  You can just say (in writing) that you want to appeal.

What you say at this point is important.  The chances that you are going to get the decision reversed are slim.  And, anything you say to the agency will be available to the Employer.  It might be a good strategy to hold back some information so the employer will not be able to prepare for it at the hearing.  This is something you need to talk to an attorney about.

The Agency will issue a Re-determination.  Again, either side has a right to appeal.  If the Re-determination says you win you need to do nothing.  If you lose you need to appeal.  Again, be aware what you put in your appeal.  Other than the fact that you filed something, the content of your appeal will not even be considered.  So you are just giving your employer a free look at your strategy

The next step in the process is a Hearing in front of an ALJ (Administrative Law Judge) or Hearing Officer.  This is actually a trial.  Witnesses will be called and sworn.  The entire hearing will be recorded.  The hearings are scheduled for one hour.  So you need to be well prepared.  Also, although either side can appeal there will not be anymore hearings nor can anyone add any evidence except in extraordinary circumstances.  So this is your one chance and you need to make it count. The appeal goes to the MECS Board of Review, a three person panel.  They review the transcript of the Hearing and make a decision.

If you have any questions about this process please fell free to call me at (231) 941-0054