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I just had an appeal hearing for unemployment benefits that were denied. Will I prevail?

Rockland, MA |

I was on maternity leave and due back to full time work. 2 days before my return, my sister who was my child care provider was injured and could not physically care for my child. Panicked, I emailed my HR person and explained the situation and that due to unforeseen circumstances that I could not return because I had no child care. I never heard back. I did not know I could request a leave of absence. I filed unemployment 3 weeks later when my sister got better. So when I was denied unemployment I appealed. During the hearing yesterday they asked my HR if I had asked for a leave would have it been granted and they answered they did not know. Do I have a chance if winning? I have been actively seeking work. I explained I did not know I could have asked for a leave other wise I would have

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Attorney answers 3

Posted

It appears that your employer may possibly have violated your rights under family and medical leave act. Appeal, and see a lawyer to consider further remedies.

This is not formal legal advice.

Asker

Posted

How did they violate my rights ?

Leizer Z Goldsmith

Leizer Z Goldsmith

Posted

More details would be needed, but federal law requires companies with over 50 employees to allow those working more than 1250 hours in the past year with at least one year of incumbency, to up to twelve weeks of FMLA. How much maternity leave did you take?

Asker

Posted

I did take the full 12 weeks. It was exhausted when I was to return to work

Leizer Z Goldsmith

Leizer Z Goldsmith

Posted

OK. Then why did you say you think you are entitled to a further leave of absence? Most likely, you are not. And if that's the case, it seems that you effectively quit and would not be entitled to unemployment. Do you have any response to that?

Asker

Posted

I quit because I did not know what to do. I knew I couldn't get childcare last minute and unemployment asked why I didn't ask for a leave of absence. Because I didn't know to

Leizer Z Goldsmith

Leizer Z Goldsmith

Posted

I guess it won't make you feel any better, but you were most likely not entitled to any other leave, and the unemployment people erred in giving you the impression that you were.

Posted

Unfortunately, no one on this forum can tell you that you will definitely get benefits. However, based on the information you have posted, it is certainly possible that the DUA may award you benefits. Whether or not you had leave remaining is a different question than whether or not you are entitled to unemployment benefits.

The hearing is the best opportunity you have to present your argument to the DUA, however if you are denied benefits at this point, you do have further right to appeal, which would be explained in your determination notice. If you receive an unfavorable decision, you may want to contact an attorney to review your case and possible assist you with a second level appeal.

At this point, I wouldn't read too much into any particular question or questions that the hearing officer asked. The hearing officer was just gathering information. When you receive the decision, you will be notified of the reasoning behind it.

For now, you will just need to wait for your determination. If you do not have it within a few weeks of your hearing, you may want to call to check on the status of the decision. The DUA handles a heavy case load, which can cause significant back ups, but dropping a line to check on the status would not hurt.

Good luck.

This answer is provided for guidance only. DO NOT rely on it as legal advice. We DO NOT have an attorney-client relationship. You should contact an attorney in your area for a one-on-one consultation before pursuing any action or making any decisions.

Posted

I agree in large part with Attorney Slack and would add that at such time as you receive the decision from DUA it would be in your best interest to try to obtain at least 2 or 3 “no charge” “no obligation” consults with MA employment law attorneys. Those of us who practice employment law and whom answer questions posted here on AVVO are an excellent place for you to start your search for local counsel. Good luck and best regards, Rob Fortgang - Employment Law Attorneys serving Massachusetts & Connecticut / 800-932-6457 / 413-658-8500 / 774-329-3412 rob@fortgangemploymentlaw.com

ROBERT FORTGANG ASSOCIATES, LLC - DISCLAIMER These materials have been prepared by Robert Fortgang Associates, LLC and are to be used for informational purposes only. These materials are not intended, and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney–client relationship. Additionally, any submission or receipt of such information via any means of transmission does not create an attorney-client relationship. Internet subscribers and on-line readers should not act upon any of the information contained on this web site without seeking professional counsel. Please do not send us information until you speak with one of our lawyers and receive authorization to send that information to us.

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