Employment Law Questions? Ask an Employment Lawyer.
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.
Please press the GREEN ACCEPT BUTTON so I am paid for my time.
I spent considerable time researching this issue for you and I am not paid a paycheck by Just Answer -- I am only paid for the research and writing time for this question if you press ACCEPT below. This is my only source of income at the moment due to a bad economy (I was also laid off last year) and it is only fair that I am paid for the time I have spent assisting you in this matter. Anyone who performs work or delivers goods to another person expects to be paid for their time and I and the other attorneys on this website are no different.
The best way to show your appreciation to me is to press ACCEPT below at the bottom of this box so you can make sure that this website, Just Answer, pays me for the time I have spent assisting you yesterday and today. Pressing ACCEPT will NOT cost you any more money than you have already pledged to pay -- it will simply tell Just Answer to pay me.
Let me take all of your questions and answer them one by one as you presented them:
YOUR QUESTION: * Is an employer responsible for telling you when you can place a claim with unemployment? Are they required by the state to do that?
ANSWER: When an employer lays off a worker or cuts their hours to less than fulltime when that employee has been classified as a full time worker through the date the employee's hours are cut, the employer is required to give that employee a Form BC-10 "Instructions for claiming unemployment benefits" . You must argue that because they did not give you form BC-10, you were not aware that you were entitled to apply for and collect unemployment benefits when they reduced your full time hours the first time in 2008.
*YOUR QUESTION: They are arguing that I left the job and there is still work as they hired someone to replace me (supposedly on a commission basis), however when I saw the job ad out it was for my job title and not the title they had on the new paperwork they wanted me to sign. ANSWER: First, please make sure that you tell the unemployment officer on the telephone that they are claiming to advertise your job, but the job that you had been assigned does NOT have that same title (it would help if you had the title of your old position and the advertisement, and then the title of the "new" commission position that they wanted you to accept on the written paperwork. How can it be the same job? It does not have the same pay structure, it does not have the same hours, and it does not have the same title -- IT IS NOT THE SAME JOB!! And you need to remember the arguments that I set forth above -- that you and your job have been the targets of a slow constructive layoff/termination since the first cutting of the hours from full time to part time in 2008, cut more hours in 2009, change the salary in 2010 the company has been chipping away at your job for more than 2 years in an effort to avoid having to pay higher unemployment compensation insurance premiums to the state of NJ.
* YOUR QUESTION: Can an employer tell you that you have to sign a form by telling you that they won't process your end of year bonus and give you COBRA papers until you do? ANSWER: Only if the forms have something to do with the actual processing of the COBRA or the bonus and the employer cannot process either of these items without it. WHat did they force you to sign in exchange for the bonus / COBRA?
YOUR QUESTION* Most of their contracts or agreements always seem to have clauses that they can change things as they see fit. Will this be their way of getting away with anything? ANSWER: Possibly -- it appears to me here that your employer has already pulled a number of sleazy moves to try to deny you unemployment benefits (you should have been collecting Unemp. benefits as far back as 2008) and it is hard to sue an employer in court for wrongful termination because most lawyers want to be paid an hourly rate to pursue such a lawsuit and most terminated employees cannot afford that. However, getting unemployment benefits is easier than suing for wrongful termination and there a lot more grounds available to challenge an employer for unemployment benefits than a wrongful termination lawsuit.
It seems like an employee these days have absolutely no rights. You are absolutely right on this. There are 3 ways in which you have "rights" against an employer: (A) you have a written contract with them and the employer violated the contract and you can prove it in court; or (B) you are a union member and the union can file a grievance to get your job back for you; or (C) you can prove that you have been discriminated against pursuant to the US government recognized grounds for discrimination: age (over 40), disability, religion, gender, sexual orientation or race (knowing that the discrimination and proving it are 2 different things). Other than these items or through these methods, all employees are employees "at will" and they can be terminated at the will of the employer for any reason or no reason. THe ONLY thing that a worker has to fall back on in a situation where (A), (B) or (C) do not apply is an application for unemployment benefits -- because situations do exist between the employer and employee where the employee is terminated for no really good reason and the worker must simply show that the employer DID eliminate the job over the past 2.5 years and the employer did eliminate the job in a very shady, underhanded manner in order to try to deny you unemployment benefits as well.
I HOPE THAT MY ANALYSIS ABOVE & SUGGESTIONS HELP YOU TO WIN YOUR CASE. You will not know for a few weeks after the telephone call whether or not you win the benefits -- they usually notify you of this via regular mail -- you can come back into this question and let me know what happens or you can send an email to [email protected] -- in the subject box write For Mary Meaden and the web administrator will forward the email on to me. I do believe that you have a good chance of receiving benefits if you argue this correctly and try not to get too nervous when you are setting out your claim.
I will be happy to answer additional follow up questions so long as the ACCEPT BUTTON is pressed at this time on THIS answer box (or the prior answer box).
Well then I guess I have a vested interest in you winning this thing!! LOL !!
You can send an email to [email protected] and in the email give them the DATE of this question session --- 02/2/11 ---- and my name -- Mary M, Esq. -- and tell them that you want to add a bonus to the question ACCEPT and they can make that happen for you (and me).
Best of Luck.
OK, great! Sounds good! Thanks for the luck . . . I hate things like this . . . I just always wish that people and companies would act with integrity. I guess I still am idealistic :).
Sorry this took me so long to get back to you -- I was in Boston from 10 AM EST to 5 PM EST on a bankruptcy case, and just walked into my door of my office now.
Regarding your question above -- I realize what you are talking about because everything I read on that point was not clear. In one spot it says that they are supposed to hand out this form to anyone who is separating from the company -- terminated, resignation or a layoff. Another article I read states that they must give out this form in any situation where a full time employee's hours are reduced to anything less than full time (which was what they did to you in 2008). Even the statute itself was not clear. My suggestion would be to argue the second position -- that the BC-10 is supposed to be given to any employee who has their hours reduced to anything less than full time -- if your employer is NOT required to give out the BC-10 in situations like yours, then such employees would have no idea that they are entitled to collect unemployment benefits when their hours are reduced..
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).