Hello. During the phone hearing, you need to make it clear that your claim for unemployment benefits is based upon the following actions / inactions of the employer:
1. In 2008, when your hours were changed so drastically and you were essentially cut from a full time position to a part time position, you were entitled to collect unemployment payments for the difference between the full time wage and the part time wage -- and the employer was required to give you notification of the availability and applicability of unemployment benefits to a claim like yours and the employer failed to do so in 2008 -- thus you lost your window to apply for unemployment benefits for that claim after a year.
2. After failing to notify you of your rights to apply for unemployment in 2008, the employer waited one full year until your rights under the 2008 claim would expire before they decided to lower your wage yet again. And my bet is that the employer also failed to notify you of your rights to collect unemployment compensation benefits at the time they reduced you for a second time.
3. Again, your sneaky employer waited another year (until any claim that you might have had under the 2009 reduction would expire because unemployment will only consider the 52 week base period prior to the employer's action of changing your manner of earnings to a commission based salary). So, once again you lost out on unemployment benefits for the drastic changes they made to your wages in 2008 because they kept you employed just enough to keep you interested AND to keep you believing that you did not have grounds to file an unemployment claim. This last claim, however, is a genuine abuse by the employer because they changed your salary to a commission structure and no worker is required to remain at a job where the employer changes from a stable salary structure to a commission structure overnight (they completely changed the characterization of your compensation system and thus your job -- you did not sign onto this employer to work on commission and because they did this you should be entitled to unemployment compensation until you can find other suitable salary based employment).
Do you see the pattern of what your employer has done to you here? I noticed it right off when I read your question. Your employer has spent the last 3 years doing everything that they could to keep you from believing that you had a viable unemployment compensation claim and to keep you from actually applying for an unemployment comp claim even if you were inclined to try making such a claim. This all boils down to a blatantly sleazy attempt by your employer to slowly work you out the door AND avoiding paying higher unemployment compensation taxes for your position ( you see, the larger the number of employees that an employer has laid off and are collecting compensation, the higher the employers unemployment compensation insurance payments to the state will be -- and because the unemployment insurance state payments can be so high, some employers will got to any lengths to avoid paying out any unemployment claims so they can keep their overall unemployment compensation rates low). My bet is that you are not the only employee to be subjected to this slow layoff over a several year time period and i can also bet you that this employer probably fights every single workers compensation claim filed against it -- forcing employees to take the company to a hearing in order to get benefits paid out.
SO, you have several very valid arguments here, as follows:
(Argument # XXXXX ) You HAVE been constructively laid off by this employer -- this employer has been in the process of laying you off since 2008 and has gone about it in a very sneaky and deceptive manner by doing it in pieces since 2008, as follows: (1) 2008, cut your hours and then wait a year so unemployment rights expire, THEN (2) 2009, cut your hours again and then wait a year so your unemployment rights expire a second time, THEN (3) 2010 drastically change your job description so your wages and hours will be changed/reduced AGAIN --and then if this kept up, I virtually guarantee that one year from the date of this last action, your employer would have made a drastic change to your hours, wages or manner of payment again -- and that by chipping away at your job like this and slowly laying you off, the employer never has to pay an unemployment claim or that the payment to you will be so small that the employer will be able to keep its unemployment insurance premiums paid and to be paid to the state at a lower percentage than they otherwise would have paid if they had just laid you off completely in 2008. When you make this argument to the unemployment rep / judge on the telephone you should ask that if the state does award you the unemployment benefits that your weekly wage should be backdated to the full time pay that you were earning prior to 2008 -- because that date in 2008 when the employer started this with you is actually the date that your constructive layoff "in steps" began from this employer.
Argument #2: throughout the steps of this constructive layoff, your employer never once gave you any of the state materials to inform you that you were entitled to collect unemployment compensation; and
Argument #3: The last step the employer made in this constructive layoff changed the job description completely and they have no right to change you from a salary position to a commission / barely minimum wage position in this manner -- and in doing so, they constructively discharged you from your prior position and they are telling you that they do not have any work at your prior position and prior salaried wage structure, thus they have no work available at that position that you used to hold, thus they have no work for you and you are entitled to collect unemployment compensation using your 2008 salary as your weekly wage / base period because the final move in their three step constructive layoff eliminated your job completely.
I hope that this is understandable to you so that you can make these arguments effectively on the telephone conversation concerning your benefits. The issue is not whether or not they have work available -- the issue is whether or not they have constructively laid you off by eliminating your job in three steps over the last 3 years, with the final step having eliminated your job as it was paid, structured and the number of hours involved as these things all existed prior to 2008. Please ask me questions if you are uncertain of anything I have told you or if you need clarification on something.
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