Unemployment Benefits During and After a Disaster

Tune in to hear about who qualifies for unemployment during a disaster, the unemployment application process, and how to appeal if your client is denied rightfully owed benefits. 

Guest Speakers: Dave Mausch and Katy Youker from the Labor and Employment Group at Texas RioGrande Legal Aid. 

Visit our website at https://texasdisasterlegalhelp.org/

Music Credit: Track: Travel With Us — Vendredi [Audio Library Release] Music provided by Audio Library PlusWatch: https://youtu.be/o-rpKzt4KSY Free Download / Stream: https://alplus.io/travel-us

Transcript

Unemployment Benefits During and After a Disaster

Speakers: Kathryn Youker (Texas RioGrande Legal Aid)

Dave Mauch (Texas RioGrande Legal Aid)

Recorded November 13, 2020

hello folks uh welcome once again to

00:10

another

00:10

one of our podcasts here uh for a texas

00:14

disaster legal help

00:15

website uh this is pablo almaguer i'm

00:16

director of private bar and government

00:18

relations for texas riogrande legal

00:19

aid

00:20

i have a co co-host here  belinda

00:22

martinez from lone star legal aid and

00:24

stuart campbell

00:25

from legal aid of northwest texas uh

00:28

we're going to have a discussion today

00:29

about unemployment

00:30

benefits and i think you're gonna find

00:31

that quite enlightening but before we

00:33

get to that let me tell you a little bit

00:34

about this project in case you don't

00:35

know about it

00:36

uh we are a coordinated project between

00:38

texas between legal aid of northwest

00:40

texas lone star legal aid and texas

00:42

Riogrande legal aid

00:43

we're aimed at pro improving access to

00:44

justice for those affected by disasters

00:46

a project allows both disaster survivors

00:48

and pro bono attorneys

00:50

to access critical resources in one

00:52

place while at the same time making it

00:53

easier to connect disaster survivors

00:55

needing legal help with volunteer

00:56

attorneys

00:57

willing to provide it in this way the

01:00

project team hopes to increase the

01:01

number of disaster survivor clients who

01:03

receive high quality legal assistance as

01:05

they continue to navigate

01:06

the recovery process after a disaster

01:09

and provide the support mentorship pro

01:10

bono attorneys need to achieve

01:12

success with that introduction out of

01:14

the way let me go ahead and pass it on

01:16

over to belinda so she can start the

01:17

discussion here and introduce our

01:19

speakers

01:21

thank you pablo as he stated today's

01:25

episode

01:26

is about unemployment benefits with

01:29

us today

01:29

is dave mausch and katy youker

01:32

dave is an attorney at texas rio grande

01:34

legal aid where he focuses

01:36

primarily on farm worker and employment

01:38

cases

01:39

he graduated from the university of

01:41

texas school of law in 2014

01:43

in his spare time dave enjoys camping

01:46

and composing music for films and video

01:47

games

01:49

Katy  is the group coordinator of the

01:50

labor and employment group at texas rio

01:52

grande legal aid

01:54

this group represents low-wage workers

01:55

in litigation in state and federal court

01:58

including enforcement of rights under

01:59

the migrant and seasonal

02:01

agricultural worker protection act the

02:03

fair labor standards act

02:05

anti-discrimination statutes and human

02:07

trafficking laws

02:09

she graduated from the university houston

02:10

law center and has served on local

02:12

government committees

02:14

state bar task forces and non-profit

02:16

board of directors

02:17

including as a founding board member of

02:19

border workers united a non-profit

02:21

workers center in el paso iand alamo texas

02:24

thank you guys for joining us

02:26

thank you for having us okay

02:30

uh first question is going to be a bit

02:32

broad we always started

02:34

kind of broad the fallout from disasters

02:36

including the covid crisis

02:38

usually includes an uptick in

02:40

unemployment claims

02:41

can you start by explaining the basics

02:43

of how someone applies for

02:45

unemployment in general and a little bit

02:48

on

02:49

disaster sure

02:52

um so you you know you can apply for

02:56

unemployment a number of ways

02:58

um normally um when there's not a

03:01

pandemic you can go to your local texas

03:03

workforce

03:04

commission office you can also

03:07

call the texas workforce commission or

03:09

you can apply

03:10

online through their website and

03:14

but all applications for unemployment

03:16

assistance

03:17

go to the texas workforce commission in

03:20

texas

03:30

my

03:33

next question

03:34

is why take these cases and where would

03:37

volunteer

03:38

attorneys come in to assist you guys

03:40

with those cases

03:42

yeah unemployment benefits are really

03:44

important um

03:45

just kind of backing up what are they

03:47

and what are they for

03:48

this is temporary income for unemployed

03:51

workers who lose their jobs through no

03:53

fault of their own

03:55

and no fault of their own is a term of

03:57

art

03:58

but it's the system is not need based

04:02

so there's no um income limits to get

04:05

unemployment bill gates could get

04:07

unemployment if he lost his job

04:09

um it's funded through employment taxes

04:13

and this system is set up to

04:16

incentivize employers to keep people

04:18

employed

04:19

and to keep employees in their jobs so

04:22

to minimize unemployment

04:24

um why take these cases because

04:27

um while the system is designed um

04:30

for unemployment claimants to represent

04:32

themselves and for employers to

04:34

represent themselves

04:36

um there's a real advantage when an

04:39

attorney

04:40

is present um they can focus the issues

04:43

and we see um far greater favorable

04:47

results

04:48

for folks when they are represented by

04:50

by council

04:52

um they're also fun um it's a

04:55

you know it's a it's a fact-finding

04:57

evidentiary hearing

04:59

and they're not terribly complex

05:02

typically

05:03

um and so you get to put on evidence and

05:06

witnesses and cross-examine witnesses

05:08

um so to the extent that you like that

05:11

kind of thing

05:12

as a lawyer this is um this is a good

05:15

place for you to

05:16

to get some practice with that um so it

05:19

can be game changing

05:20

your advocacy can really make a

05:22

difference and they're pretty

05:24

fun and you get instant gratification

05:27

unlike a lawsuit that may take you know

05:30

a really long time to resolve

05:32

and you know you're probably going to

05:33

get your decision the day

05:35

after or very shortly after the hearing

05:39

also it's great if you do intend to

05:43

represent the individual claimant in a

05:46

later lawsuit because you can get

05:48

Free discovery out of it

05:51

yeah the other thing i'd add to is it's

05:54

just a really efficient way to use your

05:57

time as a lawyer and to use your

05:58

expertise

06:00

you can prep for and carry out an

06:02

unemployment hearing

06:03

in a matter of a few hours and you've

06:06

got

06:06

typically when the cases come in it's at

06:08

the appeal hearing stage so there's one

06:10

appeal hearing that's done

06:11

telephonically

06:13

after that both parties can appeal to

06:16

the commission which is a written appeal

06:18

where they just re-review the the

06:21

recording of the first

06:22

recorded appeal um and then that's it

06:26

after that

06:26

you know there's a an appeal to district

06:28

court which is

06:29

you know outside of the scope usually of

06:31

the representation but it's

06:33

in a matter of a few hours working on an

06:35

employment case you can literally

06:37

turn someone's life around by recovering

06:40

you know upwards of ten thousand dollars

06:42

for people and back benefits as we've

06:43

been able to do in some cases

06:46

and dave and katy if somebody does take

06:48

one of those cases and um you know

06:50

they're working from home remotely or

06:51

just limited you know resources

06:53

uh do you need access to many manuals

06:56

and labor codes and

06:58

different books or can it all be found

06:59

in some places so they can

07:01

get ready for those hearings yeah it's

07:04

definitely all available online

07:06

um and even before the pandemic and

07:09

everyone started working remotely

07:11

these hearings were often conducted

07:13

remotely you know they are

07:14

telephonic hearings and so they're

07:16

they're already conducted remotely

07:18

and um it's very common that we conduct

07:21

the hearings while our client is in a

07:23

different

07:24

city um from us and

07:27

you just want to make sure that your

07:29

client has

07:30

the hearing packet with them and in

07:32

front of them

07:34

and any other documents that you plan on

07:36

presenting

07:38

at the hearing that we're not in the

07:39

hearing packet already

07:41

so you want to just make sure that your

07:43

client has that in order

07:44

and that the you know they understand

07:46

the page numbers and how to quickly

07:48

refer or find

07:49

a page that you're going to refer to i

07:52

like to practice

07:53

um with obviously you're going

07:55

to do your normal prep

07:57

with your client before the hearing but

07:59

i also like to just

08:00

get them familiar with going through the

08:02

documents and finding

08:03

finding the page that i'm referring to

08:05

quickly so it's seamless when the

08:07

hearing takes place

08:08

as far as the precedent manual and law

08:21

Those are all available online and we can post links

Could you kind of walk us through what it's

08:22

like to do one of these telephonic ones

08:24

so like

08:25

i've done one but it was like maybe the

08:28

very first things i did

08:29

at legal aid and i haven't done one

08:31

since uh

08:33

what's it like so is it like a normal

08:37

trial

08:38

where you're presenting you have opening

08:40

and closing and

08:42

and direct and cross or kind of walk us

08:44

through what it's like so someone who's

08:46

never done one before hasn't

08:47

has an idea what it's like sure no

08:49

problem and i

08:50

and Dave hop in at any time too i um

08:54

when when for whatever reason we can't

08:56

represent someone in a hearing

08:57

i'll often get on the phone with that

08:59

person and talk

09:01

them through the hearing process just

09:02

like i'm about to do

09:04

so that they're familiar with what's

09:06

going to happen

09:07

but the first thing that happens before

09:09

the hearing is you get a hearing packet

09:10

it says the time and date of the hearing

09:13

and that has all the documents that have

09:15

been submitted for the hearing by the

09:17

claimant

09:17

and the employer so you want to just go

09:21

through that packet

09:22

look at all the statements that were

09:25

made by the claimant and the employer

09:27

which are recorded by someone at the twc

09:31

who does a fact-finding investigation um

09:34

to make their initial determination on

09:36

whether to to grant the benefits or not

09:39

so you want to just read through the

09:41

hearing packet

09:42

um but and then of course there's all

09:45

the prep and we can talk about that a

09:46

little separately but

09:48

as as far as the hearing itself um

09:51

you'll you know everyone will call in to

09:53

the hearing

09:55

30 minutes before it's going to start

09:56

and then the hearing officer calls you

09:58

back at the

09:59

around the designated time and connects

10:01

everybody

10:02

um and what happens first is the hearing

10:06

officer

10:06

will give about a 20 to 30 minute

10:09

introduction of just instructions

10:11

um so the first it's a good 20 to 30

10:14

minutes where the hearing officer is

10:16

just

10:17

literally explaining the process of the

10:20

hearing

10:21

um if an interpreter was requested the

10:24

interpreter will be on the line

10:26

interpreting all of that explanation so

10:28

it could take

10:29

you know twice as long just to get

10:31

through that first part

10:33

and then after the introduction

10:37

that if there are multiple witnesses the

10:40

hearing officer will usually remind the

10:42

parties of their right to invoke the

10:43

rule

10:44

and to exclude witnesses from the

10:46

hearing until

10:48

they are called to testify which is

10:50

always a good idea

10:51

especially if you have multiple

10:55

employer witnesses and you're afraid

10:56

that their testimony is going to be

10:58

influenced by the testimony of others so

11:01

that's

11:02

at that point before the hearing officer

11:03

begins the questioning you can invoke

11:05

the rule

11:06

and then you know everybody's sort of

11:08

honor system is supposed to not

11:09

be in the room or listening in until

11:13

they're called

11:15

and then the hearing officer will begin

11:17

questioning

11:18

and they begin with the party that

11:20

initiated the work separation

11:23

so if it was a firing and the question

11:25

is whether the firing was

11:27

for misconduct or not then

11:30

the hearing officer will begin

11:31

questioning the employer representative

11:33

whoever's been designated as the

11:35

representative for the employer

11:37

if if the claimant initiated the

11:39

separation

11:40

so it was a quit and the question is

11:42

whether they quit with good

11:44

cause or not then the hearing officer

11:47

will begin

11:47

by questioning the claimant um they'll

11:50

get some basic information

11:52

kind of go through the facts and then

11:55

the um

11:56

attorneys or whoever is representing the

11:58

parties will have a chance

12:00

to do some questioning um typically if

12:03

for example the hearing officer begins

12:05

with the employer representative then

12:08

when

12:09

he or she is done with their questioning

12:11

they will ask

12:12

the claimant's attorney whether they

12:14

have any uh

12:15

questions and the employer's attorney if

12:18

there is one

12:18

whether they have any additional

12:20

questions for their for their client

12:23

and then you just proceed in that

12:25

fashion through

12:27

employer witnesses and then you move

12:28

over to the claimant

12:30

go to the claimant and the claimant

12:31

witnesses at the end

12:34

you can ask the hearing officer for an

12:38

opportunity to give a brief closing

12:40

um i've never asked for an opening

12:43

there's never like an opening statement

12:45

because the hearing officer just sort of

12:47

launches into questions

12:49

but you can ask for permission to give a

12:51

brief closing just to sort of sum up

12:53

the way you see the case some hearing

12:56

officers say no thank you

12:58

i know the precedence and you know

13:01

i don't think this will be helpful but

13:04

other most

13:04

most of them will allow it and i keep it

13:07

to just

13:08

three or four sentences very quick i

13:09

might point them to

13:11

a precedent decision from the precedent

13:14

manual

13:14

um that there's something particularly

13:16

helpful but um

13:18

but that's that's basically it you have

13:20

a chance to go through documents and

13:22

um ask that those be admitted

13:25

into the record um and

13:29

yeah that's the basic overview they what

13:32

what did i miss no i mean that's that's

13:34

really it

13:35

i think sort of the difference between

13:38

an unemployment hearing and a regular

13:40

hearing is that you're not

13:41

in charge of the original line of

13:44

questioning

13:45

um that's all conducted by the hearing

13:47

officer and so you're really just doing

13:49

cleanup

13:50

um you know to the extent that the

13:52

hearing officer doesn't get stuff that

13:53

you think needs to be on the record

13:55

or if you've got an alternative theory

13:58

of the case and you want to develop that

13:59

theory you've got to do the

14:01

the cross-examination or the direct

14:02

yourself

14:04

um for me i think the the closing

14:07

statement is really important

14:09

and i've i've found that that just

14:12

seems to be a really useful part of the

14:14

hearing because it's the only part where

14:16

you get to

14:17

really frame the case for the hearing

14:19

officer i think

14:21

procedurally speaking um

14:25

hearing officers because they don't have

14:26

to be lawyers it's not like you're

14:28

dealing with a judge who's quite

14:29

sophisticated

14:30

and capable of you know thinking about

14:33

all the different

14:34

gray areas in the law or all the

14:35

different nuances and interpretation

14:37

you're dealing with someone who

14:39

um you know is probably less

14:41

sophisticated than your average judge

14:43

and is

14:44

typically i think going to look at

14:45

things more in a sort of black or white

14:48

logical kind of way and

14:51

to that end they're a little more rigid

14:54

in their thinking

14:55

and i think it is a little bit more

14:57

helpful to

14:58

to have the ability to reframe things um

15:02

you know to reframe things in a way

15:04

that's helpful for the hearing officer

15:05

the other thing i'd say you know in

15:08

addition to submitting evidence

15:10

um which needs to be done before the

15:12

hearing

15:13

um you can also use demonstratives in

15:17

unemployment hearings i've done this

15:18

before

15:19

where um you know the issue was whether

15:22

or not my client's

15:24

job had decreased his pay over 20%

15:26

because that 20%

15:28

threshold of a pay cut is you know if

15:31

you get cut more than 20%

15:32

then you have good cause to quit your

15:33

job and claim unemployment and if it's

15:35

less than 20%

15:36

then you don't um and so i submitted a

15:40

demonstrative exhibit to the hearing

15:41

officer just by email

15:44

that was just an excel sheet where i sat

15:46

and broke down and did the math

15:48

um so i think you know in addition to

15:51

doing what you can in the hearing and in

15:53

the closing statement if if a

15:54

demonstrative exhibit is going to help

15:56

sum up

15:57

you know if you have a mathematical

15:58

issue in your hearing or something like

15:59

that

16:00

um that can also be a good way to to get

16:02

something on the record that's gonna

16:03

then go back with the hearing officer to

16:05

the you know figurative like jury room

16:10

um and and be with them with for their

16:13

reference while they're making the

16:14

decision i think that's really helpful

16:17

so what let's back up i guess uh

16:20

we got the process right we got the

16:23

importance of it what it what it does

16:25

what is it and it was it was it was

16:29

briefly touched on a second ago and i'm

16:30

going to share

16:31

a little bit of my only experience with

16:34

it but

16:35

what are what are we fighting over here

16:36

um what we're talking about hearings but

16:39

what's the issue

16:40

what are we trying to prove what are we

16:41

trying to disprove

16:43

um that's a great question yeah

16:46

in my own in my only experience with it

16:48

i

16:50

had a client who was discharged for not

16:54

meeting her performance goals

16:56

at her sales job and

17:00

uh it was pretty...

17:03

the case the theory of the case that we

17:06

were going on is actually is that was

17:07

pretextual because

17:09

um she was pregnant right we didn't end

17:11

up representing her and anything after

17:13

that but

17:14

uh we were able to prevail in

17:18

the unemployment uh hearing because

17:22

she received a and we had it admitted

17:25

into evidence she received an award

17:28

uh less than two months before she was

17:30

fired for like outstanding

17:31

service or something like have it like a

17:33

written reward like one of the ones you

17:35

could hang on your

17:36

uh hang on the wall in your office said

17:38

like you've met your

17:40

your sales goals like consistently for

17:43

the last

17:44

year and then she was turning around

17:45

once she when she they found out she was

17:47

pregnant they turned around fire

17:49

um and of course that's another level of

17:52

discrimination but we were able to put

17:53

that on

17:54

and show that uh that the reason that

17:57

they said

17:57

was for termination was wrong so can you

18:00

kind of walk us through like

18:01

what are you trying to prove what are

18:02

you trying to disprove and what are some

18:04

common things what are some of the most

18:05

common

18:06

things that you see um can go your way

18:10

in in these types of hearings yeah what

18:13

i'll give an

18:14

overview and then dave maybe you can um

18:16

maybe you can

18:17

um use some examples um to explain

18:21

so um typically what we're fighting

18:24

about

18:24

in the unemployment process is whether

18:27

this work separation

18:29

was qualifying um remember i said that

18:33

unemployment is designed for

18:36

people who lose their jobs through no

18:39

fault of their own

18:40

so that means that the claimant if they

18:42

were fired

18:43

it was not for misconduct um

18:47

and that that section about misconduct

18:49

is

18:50

under uh 207.044

18:54

of the unemployment code

18:57

um and so the other the other reason

19:00

that you can lose your job and and

19:02

qualify for unemployment

19:04

is if you quit but with

19:07

good cause connected to the work

19:10

and that section is found under 207.045

19:15

of the unemployment act so um

19:20

it's one of those two reasons and you um

19:24

you want to look closely at how

19:26

misconduct

19:28

and good cause are defined

19:32

they're defined by the rules and

19:35

precedent decisions

19:38

that apply to these unemployment appeals

19:41

they're very different than what you

19:43

would think

19:44

the definition would be they're

19:45

extremely unique

19:47

in this context so you really want to

19:49

familiarize yourself

19:51

with the definitions and the way that

19:53

the kinds of evidence that the twc the

19:55

workforce commission will look for

19:58

and in making these determinations it's

20:00

it's

20:01

it's i would say it's more favorable

20:04

for uh claimants because

20:07

um it just is it's more favorable for

20:11

claimants than

20:12

for example a discrimination case um or

20:15

a lot of other types of labor rights or

20:18

employment rights

20:19

so make sure that you familiarize

20:21

yourself with those definitions and

20:23

we'll put some links

20:24

up that are very helpful and explain

20:28

what misconduct and voluntary quit is

20:32

for for lay people and people who might

20:34

not be familiar with this area

20:36

um so um

20:39

but yeah those are the main issues and

20:41

so there there are ways that you can

20:43

prove that

20:44

um and let's talk first i would say

20:46

about a misconduct case

20:49

um and um

20:52

you know the example that you gave about

20:56

someone who was fired for performance

20:58

standards right

20:59

well that typically isn't in the

21:02

definition of misconduct

21:05

misconduct is mismanagement of a

21:07

position

21:08

and it typically requires intent or a

21:11

high degree of carelessness

21:13

so if you just weren't able to do your

21:15

job well

21:17

and you were trying that's not

21:19

misconduct

21:21

the other thing to think about in

21:23

misconduct cases and firing pieces

21:25

is the hearing officer is only concerned

21:27

about

21:28

the reason that was given for the

21:30

termination and the last

21:32

incident that led to determination they

21:34

don't care about

21:36

what happened before that unless there

21:39

were warnings

21:40

that were for the same thing right for

21:43

the same

21:43

issue um they're gonna want to look at

21:46

whether

21:47

whether there was a progressive

21:49

discipline policy and whether it was

21:51

followed whether it's routinely followed

21:54

and um and so i would say it's a lot

21:58

easier to to to win on a misconduct

22:00

where there's an allegation of

22:02

misconduct

22:03

um so misconduct is serious stuff um

22:06

it's not just not being able to do your

22:07

job right

22:09

or um a lot of things that that you

22:12

would

22:12

you know that it's it's a much bigger

22:14

exception let's say to the

22:16

to the at-will employment uh concept

22:18

than we're used to in other

22:20

types of litigation you also brought up

22:22

that you know this

22:23

this person that you represented had a

22:26

potential pregnancy discrimination claim

22:29

and um and i mentioned earlier too

22:32

that these unemployment hearings are a

22:34

great place to get free discovery

22:36

if you're going to continue to represent

22:38

that individual

22:40

the hearing testimony is taken under

22:43

oath

22:44

so it's totally admissible in a

22:46

subsequent lawsuit

22:47

and i've used it we use it regularly

22:50

and later lawsuits to impeach employer

22:53

witnesses

22:54

down the line they often show up

22:56

unrepresented

22:58

and just kind of spill the beans right

23:00

after

23:01

a firing or you know an illegal firing

23:04

and we'll give some you know completely

23:07

different reason than what their

23:08

attorney

23:09

concocts uh by the time you filed a

23:12

lawsuit

23:13

so a really good way to pin the employer

23:16

down

23:16

on their reason for firing um the

23:19

decision

23:20

itself is never admissible so if you get

23:23

a good determination

23:24

the labor code says that that decision

23:27

is itself is not admissible

23:29

but the uh but the testimony is

23:32

and um and you can certainly ask

23:35

you know lots of questions about what

23:37

happened at the hearing

23:38

in your underlying lawsuit so um

23:42

dave did do you have any recent examples

23:45

of a misconduct case

23:47

before we go today let me ask you though

23:49

how do you get that information you

23:50

mentioned katy

23:51

open records request oh yeah you would

23:53

just um i think you only have six months

23:56

to get an audio recording

23:57

um yeah i had the unfortunate

24:02

experience where you know we submitted

24:04

the open records

24:05

request to the texas workforce

24:08

commission for the whole unemployment

24:09

file

24:10

um and you you know they'll they'll send

24:12

you the audio recording

24:14

on a disk or something um but for some

24:17

reason they didn't process it in time

24:19

and then

24:19

you know we lost the recording which was

24:21

terrible because there was all kinds of

24:22

Great admissions in it

24:24

um but it didn't luckily didn't end up

24:26

impacting our results

24:28

but yeah you have a short amount of time

24:30

to request it so make sure that as soon

24:32

as

24:32

the hearing is over and you've got your

24:34

decision that you submit an open records

24:37

request to get the whole unemployment

24:39

file

24:40

thank you sorry dave yeah and i can expand a

24:44

little bit too on the issues that you

24:46

see in those hearings i think

24:47

misconduct or good cause for termination

24:50

is probably

24:51

by far the most common issue that you

24:53

see um but there are also a few

24:55

others that we've dealt with too that i

24:57

think are worth highlighting

24:59

we get a lot of procedural issues in our

25:01

unemployment cases so

25:04

the timelines are very very strict for

25:06

appealing

25:07

if you get a bad determination you've

25:09

got 14 days

25:10

to appeal it so we often have to

25:14

contest you know we get a case and the

25:16

clients come to us three weeks after

25:18

they've got

25:19

their determination and it's too late to

25:21

appeal on time

25:22

or you know maybe they never got the

25:25

determination

25:27

and they missed an appeal and

25:30

you know something got overturned and so

25:33

they missed a notice of an appeal or

25:35

something so there are often

25:37

procedural sort of issues um with covid

25:41

we've had a few more of those than usual

25:43

i had one

25:44

at the beginning of the pandemic where

25:47

uh the clients was

25:48

clients unemployment claim was denied in

25:51

like late

25:51

march and in april

25:55

like early april his appeal was due and

25:57

he wasn't able to appeal because

25:59

he couldn't call in he was literally

26:01

calling twc hundreds of times a day

26:04

every single day could not get through

26:06

he was trying to appeal online but the

26:08

website was down and he couldn't

26:10

leave to go you know go to the post

26:13

office or go find a fax machine because

26:15

of the

26:16

lockdown order and so on the timeliness

26:19

issue

26:19

we had to um you know argue look he did

26:23

everything he could to try to submit an

26:24

appeal

26:25

and and didn't do it on time and um

26:28

we got a favorable result in that one

26:31

general

26:31

generally there's not a like a good

26:33

cause exception for

26:35

missing an appeal deadline um but there

26:37

are some limited circumstances where you

26:39

can win those and when you can

26:40

um it's really really

26:44

really important to have a lawyer there

26:46

um

26:47

other than misconduct too sort of in

26:49

disaster circumstances

26:50

we're in this unique situation where

26:54

every now and then we get appeals where

26:56

the employer is not a party

26:58

um so for example if a

27:01

claimant makes a claim for unemployment

27:04

twc first processes them for regular

27:07

unemployment

27:08

and they deny them because maybe they

27:10

didn't have a job

27:12

or they were out of unemployment already

27:14

then they switched them to the disaster

27:16

unemployment or the pandemic

27:17

unemployment program

27:18

and under pandemic unemployment it's

27:21

you're not making a claim against an

27:23

employer's

27:24

account it's just you as the claimant

27:26

trying to establish that you're eligible

27:28

under the conditions of the program and

27:31

so we've had a few of these where you

27:32

show up and it's just you and the

27:34

claimant and you're trying to establish

27:36

eligibility for the program rather than

27:38

like a separation or something

27:41

i've had a couple of those

27:44

one of them i think i can talk about is

27:47

i had a client

27:48

who was in her early 20s just graduated

27:50

college

27:51

living with her parents and at the time

27:53

the pandemic hit

27:54

she was working as a waitress um

27:58

and she obviously ...like the restaurant

28:01

closed

28:02

down she didn't have a job and then in

28:04

may when the restaurant opened again her

28:05

dad was about to go through surgery

28:08

and the doctor had said hey whole family

28:09

needs to quarantine for 14 days in

28:11

advance

28:12

and for a couple of months after the

28:14

surgery his immune system is going to be

28:16

extra compromised so if anyone can avoid

28:19

working we

28:20

recommend they do that and so we had an

28:22

appeal hearing where

28:24

you know it was on us to establish um

28:29

you know that that she qualified for the

28:30

pandemic unemployment assistance program

28:32

because she had a family member who was

28:35

immune compromised so we had to put

28:36

testimony on about that

28:39

um and yeah the misconduct cases

28:42

again like katy said i think um

28:45

one of the examples that i

28:48

really want to find a case to fight on

28:51

but haven't found one to fight on yet is

28:53

like safety precautions

28:55

um you know if someone leaves because

28:57

the workplace is not

28:59

exercising safety precautions um the

29:02

most recent misconduct case i did

29:05

um or not misconduct but separation case

29:07

i did was a client who

29:10

the client who whose pay was cut by more

29:13

than 20%

29:14

and so i had to mathematically establish

29:16

that yes his pay was cut by more than 20%

29:18

percent

29:19

over the two weeks before he initiated

29:21

the separation from work

29:24

um i haven't actually had a misconduct

29:26

firing case in a long while so i don't

29:28

have a good example

29:30

um off the top of my head katy about

29:32

that but

29:33

i think those are really the common

29:34

issues we're dealing with right now

29:37

yeah and i'll say um just going back to

29:39

why do these cases

29:41

what i have found is that a lot of times

29:43

when someone's um

29:44

fired um in a way that they feel is

29:47

unjustified

29:49

and maybe they don't have an underlying

29:52

legal claim or very strong

29:54

claim but sometimes just winning that

29:56

unemployment hearing

29:57

it feels like their name has been

29:59

cleared and

30:01

it can actually help them because if

30:03

they're trying to get subsequent

30:04

employment they've been fired

30:06

but not for misconduct according to the

30:08

twc

30:10

then they can tell you know potential

30:12

employers

30:13

well um i'm just going to tell you that

30:16

my last job i got fired but the texas

30:18

workforce commission

30:19

gave me unemployment because they found

30:21

that

30:22

i was not fired you know in a just way

30:25

in a way that was that was warranted you

30:27

know the warranted firing

30:30

and um and i found my clients report

30:32

back that as soon as they sort of

30:34

you know make that preemptive statement

30:36

to potential employers that they

30:37

start getting job offers because

30:39

employers understand that system and how

30:41

it works and what that means

30:43

um so it can be really satisfying for

30:45

clients

30:46

to win because they feel like their name

30:49

is cleared they got to say their case

30:52

um they got to kind of have their day

30:54

and um

30:56

and the benefits can be really

30:57

substantial i mean tens of thousands of

30:59

dollars

31:00

especially during when they when the

31:03

federal government under the cares act

31:04

recently was giving out the

31:06

pandemic unemployment compensation for

31:08

people whose jobs were impacted by covid

31:11

um you know that was an extra 600 a week

31:14

on top of benefits so

31:16

when we were getting these back back uh

31:19

benefits you know they were really

31:21

substantial awards

31:22

and and and um we're giving that

31:26

important lifeline for clients yeah and

31:29

just to

31:30

just to touch on two like the ability

31:32

for clients to clear their names i mean

31:34

katy and i worked on a case um after

31:37

harvey, katy handled the unemployment

31:39

hearing and now she and i are working

31:40

together on the subsequent litigation

31:42

but

31:42

we had a client who worked at a nursing

31:46

home who was fired because

31:49

she evacuated during hurricane harvey

31:52

in the middle of a mandatory evacuation

31:55

order from the city and the county which

31:57

had criminal consequences

31:59

and which applied to her in the nursing

32:00

home and the nursing home said nope

32:02

we're not going to evacuate we're going

32:03

to stay here

32:05

despite all the other nursing homes in

32:06

town evacuating and so she left to

32:08

protect her family

32:10

and she when she tried to come back they

32:12

told her she didn't have a job and she

32:14

just felt like she had been

32:16

really mistreated because there had

32:18

never been a plan to shelter in place

32:20

during the hurricane

32:21

and she felt like they hadn't prepared

32:24

her for the situation

32:26

and really had kind of thrown her under

32:28

the bus

32:29

and we were successful on that hearing

32:31

for that client

32:32

um and got a good determination and and

32:35

now she's

32:36

back in the in the nursing home industry

32:38

actually working in management positions

32:40

which is great those are actually great

32:42

examples

32:43

and i wanted to tell you i said this

32:44

before in another podcast you know that

32:46

we have an influx of volunteer attorneys

32:48

that come in when a disaster hits

32:50

and we've learned now to be organized in

32:52

placing cases and one thing we realize

32:54

that the attorneys themselves are

32:55

actually going through

32:56

you know the recovery process themselves

32:58

whether it be you know

33:00

a hurricane pandemic or otherwise so to

33:02

be part of this

33:03

uh assistance you know to help somebody

33:05

get back on their feet

33:06

it's helpful for everybody not just the

33:07

community but the client about the

33:09

attorney too

33:10

but speaking of grounds for termination

33:12

i completely forgot to give you all the

33:14

website to where the podcast would be at

33:16

the beginning of the podcast so

33:17

excuse me belinda and stuart hopefully

33:18

you won't terminate me or i'll get my

33:20

attorneys to file for

33:22

unemployment compensation here that

33:24

website just i'll

33:25

name it now and then at the end it's

33:29

texasdisasterlegalhelp.simplejustice.org

33:31

that takes you right to the volunteer

33:32

portal so you can actually see this

33:34

uh and other resources in there so you

33:36

have to have you hear this podcast

33:38

otherwise you can get to the website

33:39

that's what you want to go to for

33:40

resources along with like the ones being

33:42

mentioned by katy and dave here

33:46

33:50

um i know that the texas disaster legal

33:53

help

33:53

um has some great recordings and

33:56

resources

33:57

about the mechanics of disaster

33:59

unemployment

34:00

um and it will talk about the

34:02

eligibility requirements for that

34:04

that particular kind of program um

34:07

so disaster unemployment is you know

34:10

only available

34:11

when there's a declared disaster for

34:13

whichever counties

34:15

and that are declared and um and so

34:19

that that's a program that's quite

34:21

different from regular

34:22

unemployment um you have to have applied

34:25

for

34:26

um and you've been deemed ineligible for

34:29

regular unemployment

34:30

or exhausted those benefits

34:34

and of course your work has to have been

34:36

affected in some way by the disaster

34:38

there's a number of ways to prove that

34:41

um but rather than go into the mechanics

34:44

of that

34:44

program and sort of the elements and

34:47

whatnot the qualification standards

34:49

i would just point anyone to the texas

34:52

disaster legal help

34:53

which has gonna have the most up-to-date

34:56

information on that

34:58

program it's very different from

35:00

pandemic unemployment

35:02

assistance which is a completely

35:04

different

35:06

program that was authorized under the

35:08

cares act

35:10

that that we're working with right now

35:14

so not to be confused even though the

35:17

texas workforce commission

35:18

is currently very confusingly referring

35:21

to pandemic unemployment assistance

35:23

as DUA disaster unemployment assistance

35:27

and some of the notices that they're

35:28

sending out

35:29

to claimants it doesn't matter

35:32

they are completely different programs

35:35

so that's something just to keep in mind

35:40 

absolutely that's a good point to make

35:42

um

35:44

even disaster unemployment and even

35:47

asking for fema recovery funds for

35:49

disasters like every disaster it's a

35:51

little different

35:53

so going to the website is the best way

35:56

to get the up-to-date information

35:58

so thank you for um reminding everyone

36:02

of that

36:03

the next thing i wanted to get into uh

36:05

we spoke about the

36:06

telephonic conference if you get a

36:09

negative determination that telephonic

36:10

conference is there

36:12

a next step in the appeal process are

36:14

you are you kind of

36:15

done after that yeah dave you want to

36:18

handle this one

36:19

yeah so there's basically three levels

36:23

to the administrative process at the twc

36:27

for unemployment

36:28

um the initial level is the

36:30

determination so

36:31

the investigators calling a person

36:33

taking facts about their claim calling

36:35

the employer

36:36

to see what the employer side of the

36:38

story is and then making a determination

36:41

is this person eligible or is this

36:43

person not eligible

36:45

um after that after the determination

36:48

both parties have a right to appeal

36:50

the again it's a tight timeline it's

36:52

like 14 days you have that appeal

36:54

they schedule the phone hearing um

36:57

and then after the telephonic hearing

36:59

there's what they call the appeal to the

37:00

commission which is to the three

37:03

members of the actual texas workforce

37:05

commission

37:07

um that's done by writing

37:10

it's um you can submit like a written

37:13

brief

37:14

if you'd like it's there's not really a

37:15

formal process for it but we do it

37:17

pretty routinely

37:18

in cases where we feel like we got a

37:21

erroneous determination at the appeals

37:23

hearing level um so that goes to the

37:27

commission they review the hearing audio

37:29

from the appeal stage

37:31

and basically it's um

37:36

it's their determination of whether or

37:39

not the appeal

37:40

the hearing officer got the appeal right

37:42

they're typically not looking at other

37:43

issues they

37:45

um you know kind of think they don't

37:48

have the

37:49

jurisdiction to do that at that stage

37:51

and

37:52

um you'll get a written decision from

37:55

the appeals tribunal either yes or no

37:59

but you won't get another hearing after

38:02

the

38:02

appeals tribunal decision there are two

38:04

options

38:06

um the first option is to

38:09

file what's called a motion to or

38:12

you can request a is it called a

38:15

reopening katy is that the correct term

38:17

it's been a while since i've done one

38:19

like a rule 16 reopening

38:22

for the second hearing where you have to

38:24

show

38:26

i can't remember what the twc term is oh

38:28

right there are three yeah there are

38:29

three reasons why you can get a reopened

38:32

hearing

38:32

and yeah it's like there's new evidence

38:36

new evidence and you have to show why

38:38

you couldn't present the new evidence at

38:40

the time of the hearing

38:43

and sometimes you can get a new hearing

38:45

in those circumstances if not

38:47

after the commission appeal

38:50

if you can't meet that burden to show

38:52

that it should be reopened for a new

38:54

hearing

38:54

then you've got i think 14 or 21 days to

38:58

file

38:59

a lawsuit in county court

39:0339:04

there is also sometimes a process

39:08

a petition for rehearing

39:10

39:11

if you have someone who missed their

39:14

appeal hearing

39:15

and so in certain circumstances

39:19

you know we get cases where the client

39:22

doesn't get their appeal packet in the

39:25

mail

39:26

and so they don't know when the

39:27

hearing's going to be and they missed it

39:29

or sometimes people in el paso don't

39:32

realize that the appeal is set for a

39:33

different time zone and they don't call

39:35

in on time

39:36

um or maybe they're ready for the

39:38

hearing but they

39:40

get sick or they have a family emergency

39:42

and they can't do it you can ask for a

39:43

rehearing

39:45

um and you have to show good cause to to

39:48

get that second appeal hearing and

39:50

that's sort of

39:51

at the appeal hearing stage at the

39:52

second stage before the commission stage

39:55

um

39:56

but that's again pretty limited just to

39:58

circumstances where you can show there's

40:00

good cause

40:01

that you missed the hearing

40:05

so um yeah in most cases it's the appeal

40:08

hearing and then the the commission

40:10

hearing which is written and then

40:11

you're in county court after that unless

40:13

you're in a limited set of circumstances

40:16

where you have the questions to clarify

40:18

the judicial the petition for judicial

40:20

review

40:21

it um it's actually i think it needs to

40:24

be filed within 15 to 28 days after the

40:27

final decision of the tx workforce

40:29

commission and it's filed in district

40:31

court

40:32

so they're going to need an attorney um

40:35

it's a substantial evidence is the

40:39

standard

40:40

and so hard to overturn at that level

40:43

um the petition for judicial review

40:47

and there's no filing fees filing fees

40:50

are waived

40:51

uh for someone who's filing one of these

40:54

so just to be ...okay years ago i

40:58

did

40:58

one of the judiciary to jury trial but

41:00

in workers comp

41:01

and i remember then and i wonder if

41:03

that's the case here because it sounds

41:04

kind of administrative type issue

41:06

are you limited then to the issues

41:09

appealed

41:10

at the lower level and you just can't

41:12

really get the de novo on everything

41:14

you're actually are you limited to those

41:15

issues that you've uh

41:17

because it's like a hybrid substantial

41:20

evidence and de novo

41:21

review i think it's a little um

41:25

unclear but they're really what that

41:28

means is that the judges were really

41:29

going to give deference to

41:31

whatever the record was right yeah um

41:34

you can

41:34

you know i think there's the possibility

41:36

of raising raising new evidence for

41:38

presenting

41:38

new evidence but um the deference is

41:41

going to be given to

41:42

the record below and um so yeah it's

41:46

it's pretty difficult to me

41:49

those are fun cases but we don't expect

41:51

the pro bono attorney to take those

41:52

We would probably do them in house if it's

41:54

really serious if it happens that way

41:55

but i remember

41:56

i like those cases i like doing them and

41:58

i wanted you to specify that that

42:00

for like the frank we mentioned the

42:01

fema appeals and people hear appeals

42:03

and in the done one you know at the

42:04

court of appeals

42:05

they think about table of contents and

42:07

briefing schedules and all this other

42:08

stuff

42:08

that's not what this is uh this is

42:10

different right it's an administrative

42:11

appeal

42:12

contained in ways and format

42:15

yeah it's very often just a letter brief

42:18

basically

42:19

yeah you want to make that clearer

42:21

volunteer so they don't think they have

42:22

to sit down and

42:23

you know do learn how to use table of

42:25

contents creation and word or

42:27

other formats no no really um

42:30

if if you're gonna take an unemployment

42:33

hearing you know you could limit your

42:35

representation to just

42:36

the hearings you know itself and and

42:39

i mean that's that's where you have the

42:42

the most potential to

42:44

to come up with a favorable decision for

42:46

your client

42:47

anyway so it probably makes the most

42:50

sense that someone

42:51

you know is just going to represent

42:52

someone at the hearing

42:54

it's a pretty discreet process it

42:55

doesn't take a lot of time i mean you

42:57

get the hearing packet

42:59

and the date is usually um a couple

43:02

weeks

43:03

away for the hearing so then you know

43:06

you would have

43:06

maybe one at most two prep sessions

43:10

typically with your client

43:12

and you know prepare yourself so

43:16

in terms of preparing for the hearing i

43:18

just start by coming up with

43:20

my direct exams so do you know come up

43:22

with your direct exam

43:24

for your client um and then

43:27

come up with your exams of the other

43:29

witnesses including the employer

43:31

representative and witnesses you won't

43:34

know what witnesses are coming to the

43:36

hearing until

43:37

until the hearing itself so you want to

43:38

prepare for whoever might show up

43:42

um prepare questions for for anyone who

43:44

might come

43:47

and the hearing officer is really only

43:49

concerned about people who have personal

43:51

knowledge and personally witnessed

43:53

events

43:54

um testimony live testimony is given

43:56

greater weight than

43:58

a notarized or verified affidavit or

44:01

statement

44:02

and an unverified statement

44:06

just some scribblings on a paper um

44:09

are given very very little weight if any

44:12

so

44:12

the rules of evidence don't typically

44:14

apply in an unemployment hearing

44:17

and the hearing officer won't typically

44:21

entertain a lot of objections i mean you

44:24

know

44:24

they they're gonna their job is to

44:26

develop the record and

44:28

to get evidence in so they're gonna

44:31

they're gonna kind of default to that

44:32

but if people are really straying from

44:35

the topic then the hearing officer is

44:37

going to reign everyone back in

44:39

they they tend to be pretty quick and

44:42

the hearing officers because they do so

44:44

many of these hearings

44:45

and they typically have a set amount of

44:47

time to conduct them in

44:49

are going to want to move the thing

44:50

along quickly so you want to be really

44:52

efficient

44:53

in your questioning and as they've

44:54

mentioned earlier um

44:56

the hearing officer will get the first

44:57

go and you want to adjust

45:00

your outline of your exam outline

45:04

so that you're not repeating questions

45:05

that were already covered by the hearing

45:07

officer or the other attorney

45:09

because the hearing officer will might

45:11

might get short

45:13

be short with you if you

45:17

if you're repeating questions so you

45:20

know it's just like any other

45:21

fact-finding hearing you want to have

45:22

simple questions that are short

45:24

um don't lead your own witness um but

45:27

definitely

45:28

lead and um your you know on your cross

45:31

exam

45:32

of the employer witness um

45:35

because i think that that it can be very

45:37

helpful i mean you might want to

45:38

depending on your style to a combination

45:41

of

45:42

um a more direct questioning and

45:45

leading questions but i find that

45:48

in these misconduct cases in particular

45:50

that you know just

45:53

cross-examining with leading questions

45:54

can be really um useful

45:57

let me guys i'm sorry katy go ahead i'm

46:00

sorry

46:01

um i was gonna ask because i know this

46:02

is quite common and volunteers probably

46:03

want to know about this uh you know you

46:05

have

46:06

your client is gonna be somebody that

46:07

maybe comes off a very emotionally

46:09

charged you know

46:10

issue and they're probably gonna be

46:11

excited about when to tell their story

46:13

uh how do you deal in prep the client on

46:15

two extremes one that is just ready to

46:17

say

46:17

everything and anything to be angry

46:19

about it how do what do you tell that

46:20

person

46:21

or the person that's just kind of you

46:22

know unsophisticated shy doesn't want to

46:24

say too much and you're going to be

46:25

prepping for that

46:26

how do you prepare those clients for

46:27

these hearings

46:29

that's a great question pablo because um

46:32

you know when i when when i started

46:34

doing employment law

46:36

i didn't realize how emotionally

46:39

charged these cases are um the

46:41

employment relationship is one of the

46:43

closest ones that can develop

46:45

and there's lots of issues there right

46:47

that's

46:48

even if you haven't been employed there

46:50

long um

46:51

there's like sort of an imbalance of

46:53

power and there's just all kinds of

46:55

things going on

46:56

in a workplace relationship you know um

46:59

that that i think next to family law

47:03

they're probably the most emotionally

47:05

charged kinds of pieces

47:07

um they certainly can be people you know

47:10

people feel

47:11

really strongly about um about the

47:14

circumstances that lead to someone's

47:16

separation from work

47:17

on both sides you know and and so you

47:20

want to be prepared for that

47:22

um of course it's always to your benefit

47:24

if the employer is worked up

47:26

right and the employer comes off as

47:28

belligerent because it's like oh well

47:30

it's clear you fired this person in the

47:31

heat of the moment

47:33

and that's really good in a misconduct

47:35

case

47:36

but for your client you know if for

47:39

example they're being

47:40

um accused of insubordination which is

47:43

which is common um in

47:47

retaliation cases you can imagine

47:50

um which we can handle a lot of those

47:52

whistleblower type

47:53

claims they're fired for insubordination

47:55

you know how dare you

47:57

question my authority um and

48:00

uh and so those are good because

48:02

insubordination that word itself

48:05

it's so vague you know it's like well

48:08

okay let's

48:09

let's talk about that you know in what

48:11

ways and does that really

48:13

does that really rise the level of of

48:15

misconduct

48:16

um but you know you your client might be

48:20

really upset

48:21

you want to make sure that you just want

48:23

to explain the process to them and

48:25

explain

48:26

kind of get them in that objective

48:28

mindset like get them to think about

48:30

this process

48:31

as something that that you know kind of

48:34

get them to remove themselves a little

48:36

bit

48:36

from what we're doing in this hearing

48:39

and

48:40

um and explain that it's not in their

48:42

benefit

48:43

to to to get worked up and they need to

48:45

stay calm and

48:47

and polite and courteous um

48:51

uh and yeah and just to answer honestly

48:54

and

48:55

um you know give them assurances that

48:58

you're there

48:59

that they can chat you or text you if

49:02

they're you know there's something that

49:03

they want to get addressed so that they

49:04

feel like they have an avenue

49:07

for for anything that's coming up um an

49:10

outlet i guess yeah that they want

49:13

that they want to hit on with the

49:14

employer yeah it very much

49:17

for me i always feel like a lot of the

49:21

clients that we get at legal aid are

49:23

people who have not been listened to by

49:25

the system

49:26

and so i feel like one of the things

49:29

that

49:30

you know we need to do is to to listen

49:33

to them not

49:34

to spend several hours being their

49:36

therapist on the phone

49:38

but to to listen to what they're saying

49:40

and to acknowledge it and not try to

49:42

to push past it obviously you know be

49:45

respectful of your own time and and set

49:47

boundaries with your clients but i think

49:50

if you can

49:50

make your client feel listened to

49:52

they're a lot less likely to

49:54

to go off in the hearing i think the

49:57

other thing too about the unemployment

49:59

benefits hearings

50:00

is that the legal issues are a lot

50:03

more discreet and more simple than they

50:06

are in other employment cases

50:08

and so you know it's not like

50:11

we have to explain okay well do you have

50:14

a qualifying disability under the ada

50:16

or were you working a fluctuating work

50:18

week as the fair labor standards act

50:20

defines that it's

50:21

were you fired did they have a good

50:23

reason to fire you yes or no

50:25

um and so the the issues are really

50:27

simple and it's

50:29

i think because the issues are so simple

50:32

it's helpful to just tell the client

50:33

like look this is

50:35

there's a lot of stuff going on here and

50:38

we can get to that in another place but

50:39

right now

50:40

the one issue that we're focused on is

50:43

did they have a good reason to fire you

50:45

yes or no

50:46

these are the the good pieces of

50:48

evidence we have and and that's what

50:50

we're focused on

50:51

and i think being straightforward with

50:54

people about

50:55

look i understand what you're saying and

50:56

i hear what you're saying but it's

50:58

the issue here is really simple and very

51:00

narrow is something that works with

51:02

clients really well

51:05

i could imagine because that client is

51:06

going through the a lot but coming out of

51:08

a disaster you know their home

51:09

the family is being affected and

51:12

i know i have a habit of when i

51:14

interview a client for the first time

51:16

and just set aside at least an hour to

51:17

just listen to them

51:18

because like you said they just want to

51:20

have somebody hear them i mean

51:22

whether it be a domestic violence victim

51:23

or a consumer law issue

51:25

or an employee you know they're like

51:26

nobody's heard him at this point and

51:28

once you break to that barrier then they

51:31

kind of listen to you a bit better too

51:32

about the advice to give

51:33

plus i also tell me you really want to

51:34

get angry let me do that i'm really good

51:36

at that you know you'll see

51:37

i'll even fight where the judges says

51:39

you know but then they they laugh

51:41

nervously laugh about it you know but uh

51:43

that's great advice 100% on clients

51:45

we've got a little less than seven six

51:47

minutes here i wanted to see if you all

51:48

wanted to add a few more things to our

51:49

volunteers before we

51:50

uh wrap it all up here um

51:53

katy dave yeah i was just gonna try to

51:56

give some examples of

51:58

of cases and sort of what the issues

51:59

were um pablo i don't know if you

52:01

remember but there was a case that we

52:03

handled

52:04

years ago where a person was um

52:08

complaining about sexual harassment at

52:10

work and

52:11

it was by her supervisor and

52:14

it was persistent and

52:16

52:18

she you know raised it with the owners

52:20

she raised it with the supervisor

52:23

and um and then she filed a charge of

52:26

discrimination

52:28

with the eeoc she still worked she was a

52:30

great client she was strong i liked her

52:32

yeah she was great and um and so

52:36

at that point then she got fired like

52:39

right away

52:40

um and so the reason for her firing was

52:45

you know your insubordination was one of

52:47

the reasons another one was like

52:49

you know not getting along with

52:51

co-workers well

52:53

you see something like that as a

52:54

plaintiff's employment lawyers and

52:55

you're just like this is gold

52:57

i mean thank you

53:03

yeah and you know so that case would you

53:06

know

53:07

an employment hearing is going to be

53:09

about

53:10

well why did you fire her like what was

53:12

the incident

53:14

that led to her firing and employers

53:16

will make the mistake of saying

53:17

it was all these things it was

53:20

everything

53:21

it was you know it was just the way she

53:24

was

53:24

and if they're not able to come up with

53:27

a

53:28

specific incident the hearing officer's

53:31

not going to have it

53:32

right um and and so that was the issue

53:36

that was what happened there

53:37

was that the employer was just kind of

53:40

trying to

53:41

say that nobody liked her that she was

53:43

difficult

53:44

and that she was just sort of an

53:45

unpleasant person but they weren't able

53:47

to give any specific examples or

53:50

even the the last incident that led to

53:52

the firing

53:54

it was outrageous what they were saying

53:56

about her but what i remember about that

53:57

case it's kind of coming starting their

53:58

Come back sorry to interrupt  is because it is kind of a

54:00

pattern

54:01

those employers the representatives for

54:03

the employers are never used to having

54:05

any push background or any arguments

54:06

against them so

54:07

they just go full out and angry that

54:09

somebody challenged them and there's

54:11

nothing more satisfying to have that

54:12

happen during the hearing like you go at

54:14

it and give us everything we want

54:16

yeah and like i said a lot of times the

54:18

employer will not know

54:19

that you are... that the claimant is

54:21

represented until the moment of the

54:22

hearing so they're going to show up

54:25

unprepared and unrepresented and i know

54:27

that sounds really fair but

54:29

um or unfair but uh but i mean they

54:32

you know that's that's what they chose

54:35

to do

54:36

and so you it's these are a lot of times

54:38

they're not hard

54:39

cases um to win because you've done the

54:43

you know what the standards are you know

54:45

what the law is

54:46

you know how to focus the issues for the

54:49

hearing officer

54:50

you've prepared and the employer is just

54:52

completely

54:53

lost um so yeah they're not a lot of

54:57

times

54:57

these are not difficult cases to win on

55:00

the other hand

55:01

I don't want to be misleading because i've

55:03

had instances where we had

55:05

you know hearings continued four times

55:08

and

55:08

eight you know there were like eight

55:10

witnesses we had a police officer come

55:13

and

55:13

testify at one this was a situation

55:16

where

55:16

a client was working at a daycare

55:18

facility and she

55:20

kept raising concerns about another

55:23

daycare teacher

55:25

that she thought was neglecting and

55:28

abusing children

55:29

little children in her care she raised

55:32

it to the administrator

55:33

she raised it to the owner

55:36

and she was getting ignored this other

55:39

teacher

55:40

had worked there for many years and

55:44

and so what happened was she finally

55:48

um she finally like started talking to a

55:51

parent that was involved

55:53

in one of these incidents that my client

55:55

had observed

55:56

um and she was quickly fired

56:00

um and she was fired in such an

56:03

outrageous way

56:04

they called well this is not uncommon

56:06

right they called the police

56:08

to escort her from the premises and

56:11

claimed that she was screaming

56:14

and yelling and causing a scene so we

56:17

actually had the police officer come

56:18

to the unemployment hearing this was a

56:22

great whistleblower case that we ended

56:24

up taking to jury trial and winning

56:27

but the hearing officer testified i mean

56:28

the police officer testified at the

56:30

unemployment hearing to say

56:31

that he remembered the incident very

56:34

well

56:34

and that our client appeared extremely

56:37

calm and was just sitting

56:39

crying um whereas the supervisor who was

56:42

firing her was

56:44

um was out of control

56:47

and um and so that was really i think

56:52

beneficial you know in terms of

56:53

credibility and whatnot

56:56

so sometimes they can be very heated

56:59

um unemployment hearings but some you

57:02

know for the most part

57:03

for the most part you're gonna you know

57:05

they're they're not and they're pretty

57:07

easy to prepare for and and we'll

57:11

Screen them pretty well before we give him to

57:12

the pro bono volunteer i'm sure but

57:14

uh dave do you want to give us one last

57:16

story here before we wind it up

57:18

uh sure yeah um

57:21

i think my pitch to people for for

57:23

taking these cases

57:25

is just really the especially now

57:28

the life-changing ability that an

57:30

unemployment case can have and it sounds

57:33

kind of like an exaggeration until you

57:35

work on one of these and you realize

57:36

that it's not

57:37

like you know

57:40

i especially now with the pandemic and

57:43

and

57:44

it's very easy i think to to sort of

57:46

look at the state of things and despair

57:49

and having a place to put that energy is

57:51

really useful

57:52

um you know one of my covid unemployment

57:56

clients

57:57

we single mom of five kids who we

57:59

literally kept from homelessness because

58:01

we got her unemployment

58:02

and i had another client in july

58:06

um he won his unemployment appeal

58:10

and he got you know tens of thousands of

58:12

dollar a little bit over 10 grand in his

58:14

appeal

58:15

and um you know was able to use that

58:18

money to go

58:19

travel to nashville to see his elderly

58:21

father for what he said was probably

58:23

going to be the last time

58:24

and you know around that time my

58:26

grandfather died from covid and like i

58:28

wasn't able to see him and so

58:30

having the ability to kind of put that

58:33

energy and that

58:35

frustration i think and feeling of

58:37

helplessness that i think a lot of us

58:39

can have

58:40

into something to have that really

58:42

tangible effect is

58:43

is really powerful not only for the

58:45

client but i think also for the

58:47

the attorney and so i think just as an

58:49

experience it's really deeply rewarding

58:51

and worth taking on

58:52

yeah like i mentioned earlier we're all

58:54

going to the disaster recovery

58:55

in the community so i think attorneys do

58:57

get a lot of satisfaction thank you for

58:59

sharing that dave it's a great story

59:01

belinda you want to say anything here

59:02

to our speakers before we wrap it up

59:07 

no not at this time thank you so much

59:09

for joining us this has been great

59:12

yeah i have to say i have a timer here i

59:14

have to show the speakers every once in

59:15

a while that i completely forgot about

59:16

because i really enjoy the new

59:18

stories i wanted to listen to all this

59:19

stuff i really enjoy employment law

59:22

katy dave thank you so much for joining

59:24

us here it's already it's an hour

59:25

believe it or not we're done already i

59:26

know

59:27

we have to postpone this a couple of

59:28

times for one time and i appreciate you

59:30

being accommodating

59:31

uh today's friday the 13th of people

59:33

that are not you know watching another

59:35

day

59:35

i hope you get to enjoy the day you made

59:37

it through the one hour without

59:38

pretty much you know no uh incident here

59:41

you know but

59:42

thank you both for having joined us

59:44

today absolutely and we are

59:46

available if if an attorney wants to ask

59:49

some questions

59:50

or you know troubleshoot one of these

59:52

cases that they take

59:53

you know we are happy to help um

59:56

with any you know any questions um so

59:59

don't don't be shy about reaching out to

60:01

us

60:02

thank you thank you dave yeah we'll have

60:05

the contact information

60:06

in the links to this podcast at the

60:08

website which is

60:11

texasdisasterlegalhelp.simplejustice.org

60:12

i remember now so you don't fire me

60:14

belinda

60:15

uh thank you so much again uh we're

60:17

gonna finish this uh podcast right here

60:19

let me stop the recording and um

60:21

have it ready to go