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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3909
Experience:  Contracts, Wrongful termination and discrimination
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I appealed a decision by The Texas Workforce Commission to

Resolved Question:

I appealed a decision by The Texas Workforce Commission to payback unemployment received for 6 months. I worked for Pappadeaux Seafood.  My appeal was denied even though the employer lied and it was recorded on tape about my dismissal. I provided proof that I was deleted from the schedule and that my former employer lied during a phone hearing. I also provided proof of my attempted calls to the restaurant to find out why I was deleted from the schedule. No one accepted my calls or returned my call, so, therefore, I thought I was fired after I found out I was deleted from the schedule. I am now being billed for  $2,600 to pay back the unemployment I received.  I still do not have a job or money. What can I do?

Submitted: 1 year ago.
Category: Employment Law
Expert:  Zachary replied 1 year ago.
There are four levels of appeals that you may file regarding the unemployment decision by TWC. It sounds like you have only filed one, which was likely to the TWC appellate tribunal. You have the right to appeal again to the actual Commission within 14 days of the date TWC mailed you the AT decision by mailing or faxing a letter to the TWC Appeals Department at the address or fax number on the decision form. The Commission will rule on your case after reviewing the AT decision and listening to the recorded hearing. E-mail questions toXXX@XXXXXX.XXX.

To file an appeal to the Commission (hereinafter "CA"), mail or fax a signed letter to the CA Appeals Department.

Mail:

CA Appeals Department
Texas Workforce Commission
101 E. 15th Street, Room 678
Austin, Texas 78778 Fax:
(NNN) NNN-NNNNDeliver in person to any

Texas Workforce Solutions office
Your appeal is timely if we receive it by the deadline date. TWC does not accept appeals by telephone or e-mail.

Your appeal should have:

Your name and Social Security number (SSN);
Your current address;
The date TWC mailed you the decision;
Your signature; and
A copy of the decision letter, if possible.
Include any special requests in the appeal letter, such as:

any date(s) you will not be available for a hearing;
access to telephones, speakerphones, fax machines or other equipment, if needed; and
an interpreter for you or your witnesses, if needed (specify language).
If you do not have access to a fax machine, you may use a fax machine free of charge at any Texas Workforce Solutions office or a public workforce office in another state. Keep your fax confirmation sheet as proof of transmission.

The AT process is designed for claimants and employers who do not have attorneys. However, you may arrange for an attorney or other person to represent you at your arrangement and expense.

Did they give you a reason why they did not accept the evidence you offered as proof of your position that you were involuntarily terminated for no cause?
Customer: replied 1 year ago.

No. It was really general. They just decided to stay with original decision to have me pay back $2,600. Along with this decision, I received a past due bill for the first payment which I thought was ridiculous.

Expert:  Zachary replied 1 year ago.
OK.

Your only shot to overturn this is to draft a good appeal to the Commission.

Can you explain more about what happened.

You said you were "deleted" off the schedule. What does that mean?

Why were you never rescheduled to come back to work, or were you rescheduled and you did not show?

What did the employer lie about?
Customer: replied 1 year ago.

I showed up to work my regularly scheduled shift as a server. They did not have any tables for me to work. They overstaffed. One manager told me that if I found someone to relinquish their station, that I could take that. I found someone to do that. Another manager told me no. They wanted me to be a food runner at a different level of pay (min wage). This upset me. I did not want to be a food runner at a different rate of pay that is not what I applied for. I was also upset that 1 of the managers told me one thing and the other manager told me another. I logged out and left the restaurant.


 


I was intending to show up again for my regularly scheduled shift the next week. I was deleted from the schedule before I could do this. A system called Hotschedules is setup so that we receive via text and/or email what our schedule is. I was notified via Hotschedules.


 


I then tried to call 2 times. One of the manager's that answered did not want to discuss anything with me and XXXXX XXXXX, the GM was busy.


 


He also admitted that he knew I attempted to call in our phone hearing.


 


The second time I attempted to call, the same thing. No one would talk to me or return my call. I assumed I was fired.


 


I told this to the Texas Workforce Commission when I was questioned on whether or not I was eligible to receive unemployment benefits to begin with.


 


Then Pappadeaux appealed and we had a phone hearing. XXXXX XXXXX lied in the phone hearing stating I was taken off the schedule on December 19th when I was deleted from the schedule on November 11th. I last worked there on 11/9/12.


 


 

Expert:  Zachary replied 1 year ago.
You've got a tough case because you initially left work without permission when you were assigned the food runner job. You have an argument against this (i.e., you were not hired as a food runner, you are a server).

However, it is confusing to me as to whether the restaurant fired you at this point, or whether they just considered you as having voluntarily quit.

What was their position?
Customer: replied 1 year ago.

They stated that I quit. But, they deleted me from the schedule two days later and when I called to find out why, no one took my call or returned my call. I was going to show up on my regularly scheduled shift.


 


The GM lied and stated that I was deleted from the schedule over a month later. I sent proof to the Commission that I was deleted from the schedule on Monday, November 12th not De3cember 19th. I left on Friday, November 9th. I never quit. I was not intending to quit. I was just a little fed up by the treatment when I left and I did not apply to be a food runner. How can they force me to work a different job and a different rate of pay without my permission?

Expert:  Zachary replied 1 year ago.
You're right. They can't, and that needs to be the central focus of your argument in your appeal.

You reported to work and found that there was no position for you to work in as they had overstaffed that day. The employer asked you to perform a different job at a lower rate of pay than what you were hired to do. Since this was not your job, you left that day to return to work on your next scheduled day to work as a server. However, after you left, you discovered that they were no longer scheduling you to work as a server. You contacted them several times, but this was to no avail. In effect, they claim you quit your job because you refused to work a different job than what you were hired to do. Rather than take the blame for their mistake in failing to properly schedule the staff, they attempted to force you into an inferior paying job that day. When you asserted your right to only work in the position for which you were hired, they claimed that you quit your job. However, this is not true. There was no open position for you to work on the day you reported to work, and then they did not schedule you to work after that, despite your requests to be scheduled. Clearly what happened here is that the employer laid you off for no cause. The employer may not claim just cause for you refusing to work a job for which you were not hired at a rate you were not hired. The employer's dishonesty in the face of the fact that it was negligent in its scheduling cannot be justly used as a basis to deny you unemployment benefits.
Customer: replied 1 year ago.

That is what I thought. Do I need to hire an attorney to do this for me? I have no money right now but am still looking for work. I also want to apply for extended federal benefits.

Expert:  Zachary replied 1 year ago.
Hiring an attorney will always increase your chances of winning. You would need to look for an employment law attorney who would take your case on contingency or would seek payment through being reimbursed by the employer.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

How much would you charge to write my letter to Texas Workforce Commission for me?


 


You can email me atXXX@XXXXXX.XXX and I can send copies of everything that has been done so far.


 


My phone number is XXXXX

Expert:  Zachary replied 1 year ago.
I'm honored by your request.

Unfortunately, JustAnswer does not allow us to act as the personal attorney to any customers that we have helped on line. Further, you want someone who is local in your area to represent you in this matter.

Best of luck,
ZDN
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3909
Experience: Contracts, Wrongful termination and discrimination
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