Q. I took a new job, after being asked to relocate by my former employer, which I could not do. This job was described as challenging, but once I began, I realized it was clerical and not what I signed on for. I spent my days filing and doing data entry, which I am overqualified for. I was disappointed and misled by the false job description.
After performing the clerical tasks for eight months, I found a contract opportunity where I could use my background, education and skills. I took the contract opportunity and hoped it would lead to a permanent situation. The contract ended after nine months leaving me unemployed. Since I was a contractor, I was not eligible for unemployment benefits from this company. They went back to my prior company where I was a regular employee and held them responsible.
The company appealed the claim saying I left voluntarily to pursue another job. I soon will have a claims appeal call. Any idea how to approach it? I cannot afford a lawyer and would have to pay back 3 months of unemployment if the employer wins the claim. I'm very nervous about this appeal.
A. You have a lot going on in your question, and I can see why you are concerned about the unemployment claim appeals call. An important point employees must understand is that the Division of Unemployment Assistance makes the determination of eligibility for benefits, and not your former employers. DUA also makes the determination on your status as a “contractor” vs. that of an employee. I consulted Watertown based Attorney Christina L. Montgomery, (www.clm-law.com) who specializes in unemployment appeals. Attorney Montgomery notes that “ In Massachusetts the unemployment law has a strong presumption that the work someone does is “employment” and not “contracting.” Just because the company calls a worker an independent contractor does not make it so.”
The purpose of the hearing according to Attorney Montgomery is for the review examiner to determine the employment status and if the claimant's separation was for a disqualifying reason. Unemployment appeal hearings are fairly informal one hour procedures. The hearing is recorded and is under oath. The review examiner uses a three part test to determine if an employee is a contractor or an employee. Attorney Montgomery explains the employer is required to prove all three parts in order to prove that someone is an independent contractor: (1) the worker has been and continues to be free from control and direction in performance of the service; (2) the work is performed either outside the usual course of business, or outside all of the places of business of the enterprise; and (3) the worker is customarily engaged in an independently established business of the same nature as the service performed.
The review examiner will ask direct questions of each party. Focus on the question, and use this time to answer each question accurately. The opposing parties also have the right to cross-examine each other. A decision is not rendered at the hearing, but is mailed to the parties, usually within a few weeks.
You don’t mention what the work was, but there is a chance you were not actually an independent contractor and the employer should have made contributions on your behalf. If you have been “misclassified” your eligibility for unemployment should be based on that separation.
Montgomery also addresses whether or not your separation from the first company is disqualifying. Workers who leave their employment are ineligible for unemployment unless they can show that 1) he or she had good cause for leaving attributable to the employer (or its agent) or, 2) had an “urgent, compelling and necessitous” reason which made the separation involuntary. Examples of good cause could be a change in your employment circumstances such as a significant pay, harassment on the job or unhealthy work conditions. Examples of urgent, compelling and necessitous reasons could be your own or a family members’ illness, change in childcare circumstances, basically a deeply personal reason that doesn’t necessarily have anything to do with the job. Explain the relocation offer to the examiner as well.
In some limited circumstances an employee may be eligible for unemployment if they leave a job that is “unsuitable” –this is generally limited to jobs that the employee does for a very short while and leaves once they determine that it is unsuitable.
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