Because most employment terminations fall within the “at-will” employment rule, most people who are fired – even though “it’s not fair” – will not have grounds to bring a wrongful termination lawsuit against their former employer. However, you can and should file for unemployment benefits with the Massachusetts Department of Unemployment Assistance.
(Most people refer to this state agency as “unemployment.” In this post, I am going to call it “DUA.”) You have a statutory right, under most circumstances, to collect unemployment benefits. You may begin receiving benefits without appearing at a DUA office for a hearing, either because your former employer did not contest your application or because DUA decided you are entitled to benefits and your former employer did not challenge that decision.
What do you do, however, if you receive a notice that says your application for benefits was denied? If your application is denied, do not assume that is the end of the line. You have a right to challenge that decision. Here is what you should do.
1. Immediately file an appeal. There will be specific instructions in the denial letter as to how to file your appeal, but you must do this immediately. The time within which you must file your appeal is very short. Do not wait on this. You will then receive in the mail a notice telling you where to appear for your hearing and when. (You will receive this same notice if DUA initially decided in your favor and your former employer has appealed the decision. Yes, they can do that.)
While you are waiting for your hearing notice, you need to start preparing for the hearing, so keep reading. . .
2. Get a copy of your personnel file. You are entitled – pursuant to M.G.L. c. 149, § 52C — to a copy. Simply send a letter to your former employer requesting it. Ask the employer to send a copy to your home address.
3. Accept that this is not about what you think is “fair.” “Fair” is about context, timing and perspective. What you think is “fair” to you right now may feel “unfair” to your former employer. The hearings examiner – the person at DUA who is deciding whether or not you get benefits — may have yet another idea of what is “fair.” What I told my mother was “fair” twenty-five years ago is the opposite what I now tell my 9 year-old son about “fair.” (Mom, stop laughing.) You have to push beyond your gut reaction of “fairness” and focus on the specific issues that will be discussed at the hearing, so keep reading. . . .
4. Pin down why your former employer is saying you are not entitled to benefits. The denial letter and the notice of hearing will tell you the reasons why your application was denied (or why your former employer is appealing.) The letter usually lists more than one reason, and the list usually contains one or more of the following three (yes, there are other reasons, but these are the ones that come up most of the time.)
i) Your former employer says you quit without “good cause” that is either “attributable to” the employer or “urgent, compelling, and necessitous.” This basically means you up and left your job without a reason (that is, “good cause”); and, not just any reason, but one for which your employer has some connection and/or responsibility (that is, “attributable to” your former employer) or, if not connected to the employer, then otherwise compelling enough that quitting wasn’t really voluntary after all.
If you were fired, then you must focus on proving that. If you actually quit on your own, then you must present why you did and how that reason is connected to your employer or otherwise compelling enough that the hearings examiner will understand why you reasonably felt like quitting was the only option. You have the burden of proof on this issue, meaning that if the hearings examiner could conclude either way based on the evidence presented at the hearing, the tie goes to the employer.
Examples of reasons for quitting that will likely qualify you for benefits include (1) sexual harassment in the workplace that the employer does not immediately or properly address, (2) losing overtime when overtime was previously guaranteed, (3) your reasonable belief that you are about to be fired, (4) a poor work environment (meaning, substandard sanitation, temperature, ventilation, or other like factors) especially if it creates a health issue, and (5) needing to relocate with a spouse or partner.
Examples of reasons for quitting that will likely not qualify include your belief that your raise was not high enough (although a substantial decrease in wages might qualify,) the fact that your commute is too long or that your employer did not approve your requested vacation time, and general stress and dissatisfaction with the job (so, don’t go to the hearing and say “my boss was a jerk” and expect to collect.)
ii) Your former employer admits you were fired, but claims you engaged in “deliberate misconduct in willful disregard of the [employer’s] interests.” This means that you intentionally did something knowing that it would hurt your employer’s business (which is usually different from an honest – or even stupid – mistake.) Employers raise this issue all of the time when they don’t want a former employee to collect, but those employers – in my experience – rarely present the evidence necessary to disqualify employees from collecting. On this issue — unlike (i) — the employer has the burden of proof, which means that if the hearings examiner could conclude either way based on the evidence presented, tie goes to the employee.
Examples of conduct that will disqualify an employee include (1) stealing from the employer (duh) – but not necessarily committing a crime unrelated to the employer (because, in the latter situation, there is likely no evidence of an intent to harm the employer) – (2) driving on the job while intoxicated, (3) leaving work early without permission when the employee knew permission was required, (4) defying an employer’s reasonable and work-related requests (e.g., an employee refusing to take out his headphones so he can hear co-workers), (4) deliberate and repeated tardiness under circumstances where the employee obviously makes no effort to get to work on time.
iii) Your former employer admits you were fired, but claims it fired you because you because you committed “a knowing violation of a reasonable and uniformly enforced rule or policy of the employer.” The employer has the burden of proof on this issue also, and the terms “knowing” and “uniformly enforced” are the most important ones to focus on. “Knowing” means the employee knew about the policy, knew that his conduct would violate that policy and acted in a calculated fashion. (This is different from, say, inadvertently swearing in violation of a policy against profanity because the employee reacted to a co-employee’s insult.) The employee’s state of mind is the critical issue here.
“Uniformly enforced” means that all employees who violated the policy were similarly disciplined, and also necessarily requires that the policy contain clear definitions. For instance, a policy prohibiting excessive absences without defining what is “excessive” — or one that excuses certain employees or circumstances on an ad hoc basis – is likely not a “uniformly enforced” policy.
5. Then, gather your evidence as to why the above reasons for disqualifying you are not correct. This is easier than you think. The evidence will generally come in three forms: documents, witnesses and electronic information. Most of the documents you need will be included in that personnel file that you obtained.
For instance, if the dispute is about (i), above, is there a form in your personnel file that says when you were fired (or just the fact that you were fired) and why? If your employer claims that you engaged in “deliberate misconduct” – (ii) above — is there something in the personnel file that contradicts the allegation that you engaged in “misconduct?” Is there any evidence in your personnel file that the employer was impacted by your actions, or that you disrupted the employer’s normal business operations?
If the employer claims that you were fired for violating a “policy” – (iii) above — does the personnel file include a contradictory statement? Does your former employer even have such a written policy? How was it enforced? Are you the only person who was terminated for violating this policy?
Don’t stop with paper. Social media – and other electronically stored information (emails, text messages, et cetera) — may help you. (And, while we are on the subject, it can also hurt you — be veeerrrry careful about what you post.) Did your boss post something on his/her Facebook page about firing you? Did you receive a text or email from a colleague or from your supervisor that might help? Transfer it to a printable form and bring it with you to the hearing. Actually, bring three copies of every document that you want to show to the hearings examiner (one each for you, your employer and the hearings examiner.)
Think about possible witnesses. (I constantly hear people saying that if it is not written down or recorded, then they “can’t prove it” – NOT true.) Evidence does not exist on paper or video alone. For instance, if a person witnessed you getting fired (not quitting) or has a helpful perspective on your alleged “deliberate misconduct” or the reasons why you felt you had to quit, you can ask that person to voluntarily come to the hearing with you. If necessary, you can also subpoena that person to the hearing. The Massachusetts Trial Court Law Libraries are an excellent source on how to do this. Also remember that you are one of your own witnesses. Your testimony will be heard at your hearing. Prepare what you want to say based on the above issues (again, not based on what you think is “fair.”)
6. On the day of the hearing, show up at least 15 minutes early to review your file. Your file will be pulled in preparation for the hearing. You are entitled to review it before your hearing begins and you should, particularly to see if the employer has provided any documents or information that you need to be aware of.
7. During the hearing, be respectful and succinct. This issue is important to you and your family – probably the most important thing you are doing right now – so it is legitimate to expect others to act like they are invested and not rush through your hearing. The reality is DUA is a pretty overburdened agency and it is not the hearings examiner’s job to be nice to you. At the same time, you are entitled to a reasonable opportunity the present the evidence in support of your request for benefits. So, be polite — show that you want to be respectful of the hearings examiner’s time – but firm – “Mr. Hearings Examiner, I appreciate that your time is limited, but I would ask you to allow me to present this additional witness, document, etc. – I believe it is important to my case and will only take another few minutes.” If you are prepared to focus on the issues, have your documents copied and ready to go, and stick to presenting the objective and relevant facts, then your preparation will be appreciated and, hopefully, rewarded.
Janie Lanza Vowles represents individuals and businesses in a variety of employment matters, including claims for unemployment benefits, cases involving violations of wage and hour laws, gender, disability and other forms of discrimination, failure to accommodate and retaliation claims. If you have a question about this blog post or any other employment-related issue, feel free to contact Attorney Vowles to discuss your matter further.