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    Default Massachusetts documentation

    I just had an unemployment appeal hearing for a positive drug test termination which the head of H.R. along with a company supervisor who accompanied me through the drug test procedure on company property in the nurse's office and the company attorney showed up . Well as the hearing took place the director of the unemployment hearing asked the head of H.R. for the chain of custody paperwork along with the lab test results . He responded with "I dont have neither because i didnt know I needed to bring it". She didnt like that reply too much but the hearing continued and she then asked me if i used drugs ? I replied no. Then she asked why is my company claiming I had tested positive? I replied saying i cant explain why they would be saying that. She then asked have you ever used drugs ? I replied with a vague "in the past". Well then she asked all the regular questions like what type of test,procedures and the H.R director said a mouth swab which was false it was a urine test lol .Well after all that they bring in the supervisor who acompinied me through the test and when the unemployment director asked him the same questions, becuase he was kept out of the room until needed ,he replied with "the test was performed at a local hospital" which conflicted with the earlier reply from the H.R. director that said it was in the nurses office on company property. The H.R. director looked over at him and corrected him which the supervisor said "oh yes thats right i forgot". Im just wondering how my case sounds to you and if you think I won? Also can they submit the documents after? The hearing is now done and complete ???

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    Quote Originally Posted by synfail View Post
    "I dont have neither because i didnt know I needed to bring it".
    This is when you won. Testifying to the results of the test without the actual test results is hearsay.

    Quote Originally Posted by synfail View Post
    Im just wondering how my case sounds to you and if you think I won?
    I'd bet money on it.

    Quote Originally Posted by synfail View Post
    Also can they submit the documents after?
    Not likely. There are some exceptions, but it would require that the employer appeal for a reopening (no small feat), and the rule is usually if the evidence was available at the time of the hearing, you don't get a second chance to submit it.

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    Quote Originally Posted by chyvan View Post
    This is when you won. Testifying to the results of the test without the actual test results is hearsay.



    I'd bet money on it.



    Not likely. There are some exceptions, but it would require that the employer appeal for a reopening (no small feat), and the rule is usually if the evidence was available at the time of the hearing, you don't get a second chance to submit it.
    Thanks chyvan for taking time to reply to my question i appreciate it . Well I guess I just want to say that the unemployment director did see that I had the chain of custody form in my folder (because i had my paperwork on the table) and she asked me later in the appeal while still ongoing "is that the chain of custody form"? I closed my folder and replied "possibly but i choose not to submit it " she asked why not and i just firmly said "it's my own personell paperwork and im not the one that has the burden of proof in this case" she just said "well i know you have it" and she let it go . It still doesnt prove anything because she couldnt see the writing and its still only half the documents she asked the head of H.R. for she asked him for the test results from the lab also which he said he had neither so if they are allowed to reopen due to the evidence being present im not worried because next time il be bringing an attorney with me. I got lucky once im not going to chance it a second time. Again cheny thanks for your time in any help you can give me.I appoligize for leaving that out.

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    Quote Originally Posted by chyvan View Post
    This is when you won. Testifying to the results of the test without the actual test results is hearsay.



    I'd bet money on it.



    Not likely. There are some exceptions, but it would require that the employer appeal for a reopening (no small feat), and the rule is usually if the evidence was available at the time of the hearing, you don't get a second chance to submit it.
    Not even close to hearsay, nor are test results required for such hearings. If they exist the results can be entered, but this is not a court of law, so things like chain of custody and actual results mean no more than the hearing officer chooses to consider them. It far from a slam dunk. Appealing is extremely easy and very common. Have you ever actually been to a UI hearing?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Quote Originally Posted by synfail View Post
    Thanks chyvan for taking time to reply to my question i appreciate it . Well I guess I just want to say that the unemployment director did see that I had the chain of custody form in my folder (because i had my paperwork on the table) and she asked me later in the appeal while still ongoing "is that the chain of custody form"? I closed my folder and replied "possibly but i choose not to submit it " she asked why not and i just firmly said "it's my own personell paperwork and im not the one that has the burden of proof in this case" she just said "well i know you have it" and she let it go . It still doesnt prove anything because she couldnt see the writing and its still only half the documents she asked the head of H.R. for she asked him for the test results from the lab also which he said he had neither so if they are allowed to reopen due to the evidence being present im not worried because next time il be bringing an attorney with me. I got lucky once im not going to chance it a second time. Again cheny thanks for your time in any help you can give me.I appoligize for leaving that out.
    If you had it and purposely with held it, I would not like your odds that the hearing officer will count that in your favor. This isn't court. The only question is whether you were terminated for a reason which would disqualify you for benefits. A positive drug test will 99% of the time.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Quote Originally Posted by ElleMD View Post
    If you had it and purposely with held it, I would not like your odds that the hearing officer will count that in your favor. This isn't court. The only question is whether you were terminated for a reason which would disqualify you for benefits. A positive drug test will 99% of the time.

    So basically your saying that my former employer can make whatever statement he wants to at an administrative hearing then his witnes's statement conflicts with his until they correct each other in front of the director and it will stand as credible evidence despite my testimony that I have never used any drugs ?? That does seem hard to believe ellenmd

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    Quote Originally Posted by ElleMD View Post
    Not even close to hearsay, nor are test results required for such hearings.
    I don't know what you're definition of hearsay is, but it's. The employer is testifying as to what they were told by the testing facility.

    Quote Originally Posted by ElleMD View Post
    If they exist the results can be entered, but this is not a court of law, so things like chain of custody and actual results mean no more than the hearing officer chooses to consider them.
    Yeah, but the employer didn't bring them.

    http://www.cuiab.ca.gov/Documents/forms/27Ways.pdf

    16. "This is a corollary to bringing the key witness. The so-called best evidence rule is well named. The best evidence of the contents of a document is the document itself. If you do not have possession of the key document, contact the Office of Appeals and arrange to have this document subpoenaed.
    Do not hesitate to bring the original copy of the document to the hearing. Unless special circumstances require that the original be kept in the appeal file, the ALJ will make a copy for the appeals file and return the original to you at the conclusion of the hearing"

    Not court, but a claimant still has the right to face his accusers even in a UI administrative hearing. Doing things the way you think it happens deprives the OP the chance to have the witness under oath and subject to cross examination.


    Quote Originally Posted by ElleMD View Post
    Appealing is extremely easy and very common.
    Yes, for a tribunal hearing which this was, but it's over, and the employer forgot to bring some important documents. The next step is the board of review, and the odds are stacked in favor of the early victor.

    Quote Originally Posted by ElleMD View Post
    Have you ever actually been to a UI hearing?
    Yes.

    Quote Originally Posted by ElleMD View Post
    I would not like your odds that the hearing officer will count that in your favor. This isn't court. The only question is whether you were terminated for a reason which would disqualify you for benefits.
    From the same document, in 11. "You have no obligation to produce evidence adverse to you."

    Hopefully, the poster comes back with the results, and then we can decide who had the better take on the situation.
    Last edited by chyvan; 10-07-2016 at 01:05 PM.

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    That is a California link. The OP was in Mass.

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    chyvan, I just want to put this out here:

    I am a moderator on this board. Need I say more?

    Watch yourself. Because I'm watching you.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by ElleMD View Post
    Not even close to hearsay, nor are test results required for such hearings. If they exist the results can be entered, but this is not a court of law, so things like chain of custody and actual results mean no more than the hearing officer chooses to consider them. It far from a slam dunk. Appealing is extremely easy and very common. Have you ever actually been to a UI hearing?
    Well due to this response I went on to look up Massachusetts administrative law 801 CMR 1.02 and it seems like evidence is exclusivley what a case will be based on over other things like hazy testimony as in my past hearing. Any reply would be appreciated.
    Last edited by synfail; 10-09-2016 at 11:52 AM.

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    In the end, the only vote that counts is that of the DUA. Nothing anyone on this board says is binding on them.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by synfail View Post
    Any reply would be appreciated.
    It kind of doesn't matter because the hearing is over, and there is nothing you can do now to change that. If you did need to do something different, the time to make the decision was BEFORE or AT the hearing.

    However, from these links:

    http://www.mass.gov/lwd/unemployment...-11-drug-test/

    http://www.masslegalservices.org/con...ubstance-abuse

    an employer really needs to know what they are doing when they want to fire an employee AND get them denied for UI because a lot can work in the claimant's favor.

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    Quote Originally Posted by chyvan View Post
    It kind of doesn't matter because the hearing is over, and there is nothing you can do now to change that. If you did need to do something different, the time to make the decision was BEFORE or AT the hearing.

    However, from these links:

    http://www.mass.gov/lwd/unemployment...-11-drug-test/

    http://www.masslegalservices.org/con...ubstance-abuse

    an employer really needs to know what they are doing when they want to fire an employee AND get them denied for UI because a lot can work in the claimant's favor.
    I have 15 years of experience in MA unemployment law. The losing side can appeal a claim several times and there is an opportunity to submit evidence that wasn't presented previously.

    I always tell my managers who appear on the company's behalf that usually whoever ticks off the hearing officer the least wins the case. By refusing to submit the chain of custody, he probably ticked off the hearing officer. Not only that, he hurt his case. If he supplied it, it would have been proof that the company's testimony was in error.

    I have also been to hearings when documents are submitted after the hearing, usually via fax.

    Sounds like the original poster's drug test was correct and he had used drugs. His testimony sounds vague and evasive. I could see the claim going for either side since neither side was a slam dunk.

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    chyvan, don't you even try your usual tricks of undermining the real experts here. I'll suspend your account so fast you won't know what hit you.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    chyvan, don't you even try your usual tricks of undermining the real experts here. I'll suspend your account so fast you won't know what hit you.
    if you feel you need to suspend my account when all im trying to do is raise questions on replies then i guess thats your choice . i havnt been disrespectful to anyone on here so im not sure why the aggressive reply . i guess il apologize for just being curious to the replies given

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    Quote Originally Posted by HRinMA View Post
    I have 15 years of experience in MA unemployment law. The losing side can appeal a claim several times and there is an opportunity to submit evidence that wasn't presented previously.

    I always tell my managers who appear on the company's behalf that usually whoever ticks off the hearing officer the least wins the case. By refusing to submit the chain of custody, he probably ticked off the hearing officer. Not only that, he hurt his case. If he supplied it, it would have been proof that the company's testimony was in error.

    I have also been to hearings when documents are submitted after the hearing, usually via fax.

    Sounds like the original poster's drug test was correct and he had used drugs. His testimony sounds vague and evasive. I could see the claim going for either side since neither side was a slam dunk.
    very true now that you have brought up the point of me submiting the chain of custody it would have helped me but at the time i didnt see it that way i just felt why should i help the other side when they have the burden of proof .
    can i ask without my account being suspended that if further evidence is faxed without me being present to refute or cross examine it that it would be accepted or possibly just left for a appeal to the review board ...the only reason im asking is to try and prepare points if i need to appeal to the board thank you

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    Quote Originally Posted by synfail View Post
    if you feel you need to suspend my account when all im trying to do is raise questions on replies then i guess thats your choice . i havnt been disrespectful to anyone on here so im not sure why the aggressive reply . i guess il apologize for just being curious to the replies given
    cbg was talking about a well known poster (chyvan) who is not an expert in unemployment law (nor an HR person at all, just someone who won their own UI case) and he/she tends to give bad information on this board and another one a lot giving many people false hope. Sometimes chyvan is correct, but one example is giving you California laws that apply only in CA and not in Massachusetts, etc.

    In the end it truly is up to the facts of each individual case. Honestly I agree you would have been better served to give the chain of command documentation because then it wouldn't look like you were worried to do so. If the employer has a positive drug test and that same document, it doesn't help for you not to put it there because on appeal the employer will now that they know they should have. You will have a chance to refute any appeal (don't know if it will be another hearing or submit before that.) Carefully read any paperwork that you get to know what your rights/next step are.
    Last edited by hr for me; 10-10-2016 at 07:33 AM.

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    Synfail, I wasn't talking about suspending your account; I was talking to chyvan, who has a history of trying to pass herself off as an expert when she is actually no such thing.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by hr for me View Post
    cbg was talking about a well known poster (chyvan) who is not an expert in unemployment law (nor an HR person at all, just someone who won their own UI case) and he/she tends to give bad information on this board and another one a lot giving many people false hope. Sometimes chyvan is correct, but one example is giving you California laws that apply only in CA and not in Massachusetts, etc.

    In the end it truly is up to the facts of each individual case. Honestly I agree you would have been better served to give the chain of command documentation because then it wouldn't look like you were worried to do so. If the employer has a positive drug test and that same document, it doesn't help for you not to put it there because on appeal the employer will now that they know they should have. You will have a chance to refute any appeal (don't know if it will be another hearing or submit before that.) Carefully read any paperwork that you get to know what your rights/next step are.
    Ah yes im sorry lol Im synfail my mistake. It was for the link in California law that ellemd pointed out (thanks ellemd) that got me to look up Mass administrative law which helped me understand this whole process better. Thats why I welcome all replies,and I agree now that it would have been better to submit the chain of custody but hindsite is 20/20. In the end it is up to the unemployment director which has been shown in the 801 sec 1.02 that she has to explain her reasoning for her decision in a letter. Like I have stated that although the H.R. director was sworn and gave incorect statements and then their own witness also gave incorrect testimony by saying "the drug tests are done at a clinic" and then was corrected, also his testimony didnt show any indication of someone that would be under the influence of an intoxicant like glassy eyes slurred speach erratic speach and behavior no written observations of past peculiar behavior which would have helped their claim also the only thing the witness's testimony showed was that I had my eyes closed at the desk and chose to have me drug tested. None of them cross examined me not even their lawyer and when the unemployment director asked me why would they accuse you of drug use I said "I cant explain why they would be saying that" I didnt want to state to the U.I. director that they are lying, I testified under oath that I didnt use any intoxicants while working for them, so basically its just my sworn testimony claiming no drug use, and there testimony saying I was sitting with my eyes closed at my desk and that I failed a drug test,along with some lousy testimony from the H.R. director of a swab test when it was a urine with no documents to support their claim. I understand this was an informal hearing but its still governed with their laws that state evidence will be the exclusive key in any decision. There wasnt much else said at all. Im not concerned if they appeal the decision because by then I would have recieved money which I will use for my own attorney Im just concerned about this hearings results. Sorry for the rambling but im in a desperate situation and trying to be as knowledgeable as possible in case I have to defend myself again. Thank you all for taking your time in reading my ramble and welcome ANY response regardless if for or against me.

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    Quote Originally Posted by cbg View Post
    Synfail, I wasn't talking about suspending your account; I was talking to chyvan, who has a history of trying to pass herself off as an expert when she is actually no such thing.
    My mistake I apologize

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    Quote Originally Posted by hr for me View Post
    cbg was talking about a well known poster (chyvan) who is not an expert in unemployment law (nor an HR person at all, just someone who won their own UI case) and he/she tends to give bad information on this board and another one a lot giving many people false hope. Sometimes chyvan is correct, but one example is giving you California laws that apply only in CA and not in Massachusetts, etc.

    In the end it truly is up to the facts of each individual case. Honestly I agree you would have been better served to give the chain of command documentation because then it wouldn't look like you were worried to do so. If the employer has a positive drug test and that same document, it doesn't help for you not to put it there because on appeal the employer will now that they know they should have. You will have a chance to refute any appeal (don't know if it will be another hearing or submit before that.) Carefully read any paperwork that you get to know what your rights/next step are.
    All I said when asked by the U.I. hearing director why dont i want to submit it , was its my own personel documentation and as the rules state im not the party that holds the burden of proof she pretty much dropped it after that .
    Last edited by synfail; 10-10-2016 at 09:13 AM.

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    Honestly, the details of what kind of test and where it was done aren't going to matter all that much in my experience. If the company has a credible reason to believe you were under the influence and or you were sleeping at work, your chances of getting UI are very low. Why? Because regardless of how they came to find out you were under the influence, at the end of the day, their records show you were under the influence, and or they had credible reason to believe that was the case. UI is not court. It isn't like being charged with a DUI. Your employer could have legally fired you even if they never sent you for a test. Having a test that shows what they suspected just makes their case stronger. It isn't required in order to have a case.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Quote Originally Posted by ElleMD View Post
    Honestly, the details of what kind of test and where it was done aren't going to matter all that much in my experience. If the company has a credible reason to believe you were under the influence and or you were sleeping at work, your chances of getting UI are very low. Why? Because regardless of how they came to find out you were under the influence, at the end of the day, their records show you were under the influence, and or they had credible reason to believe that was the case. UI is not court. It isn't like being charged with a DUI. Your employer could have legally fired you even if they never sent you for a test. Having a test that shows what they suspected just makes their case stronger. It isn't required in order to have a case.
    Which is exactly my point. As an "at will" employee I can be let go for ANYTHING, so being terminated by the company is one thing. But when applying for U.I. the issue U.I. is trying to find out is not that the company wanted to fire me be it insubordination,poor work performance ,attendence. But if I lost my job through no fault of my own. Im not the one writing their laws and rules which my letter from U.I. has stated that the case WILL be governed by Mass General Laws Chapter 151A, Section 39 Chapter 30A, and Standard Rules of Practice and Procedure, 801CMR 1.02 and 1.03 which I have followed in this case. As far as not providing my chain of custody letter I found this Name:  20161010123545.jpg
Views: 103
Size:  17.9 KB also its not details of what type of test. Its more about actual proof that I did take the appropriate test and if its true what they are saying that i failed. i would assume that test results from a certified lab would tip the burden of proof in their favor when the only thing that anyone can go by is sworn testimony by me and the employer which if the director is honestly impartial has to give our testimony the same weight assuming the witness didnt weigh in with a better testimony than " i seen him with his eyes shut and took him to be tested . which i did bring a copy of the company rules that clearly stated sleeping being a level 3 offense and a one day suspension for first offense so bot sides are on an even scale.
    Last edited by synfail; 10-10-2016 at 12:22 PM.

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    Okay, let's clarify something because I think we're getting off track.

    Exactly what is it that you are looking for from the board? What is it that you would like us to tell you?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    Okay, let's clarify something because I think we're getting off track.

    Exactly what is it that you are looking for from the board? What is it that you would like us to tell you?
    If my interpretation of these rules and regulations and how Im applying them to my case are correct

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    Quote Originally Posted by cbg View Post
    Okay, let's clarify something because I think we're getting off track.

    Exactly what is it that you are looking for from the board? What is it that you would like us to tell you?
    I will just leave it be if its upsetting anyone , Im here because Im not a lawyer but figured this site would be helpful in understanding how these things are done. which is why I have provided the information I have found as it might help people who are in the business of law look intto it and clarify it for me as money for an attorney is very short right now , Thanks

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    Quote Originally Posted by ElleMD View Post
    Honestly, the details of what kind of test and where it was done aren't going to matter all that much in my experience. If the company has a credible reason to believe you were under the influence and or you were sleeping at work, your chances of getting UI are very low. Why? Because regardless of how they came to find out you were under the influence, at the end of the day, their records show you were under the influence, and or they had credible reason to believe that was the case. UI is not court. It isn't like being charged with a DUI. Your employer could have legally fired you even if they never sent you for a test. Having a test that shows what they suspected just makes their case stronger. It isn't required in order to have a case.
    By the way ellemd they accused me of failing for a substance that causes people to do the exact opposite of falling asleep! The director of H.R. stated to the U.I. director that he had me tested in the past under suspicious activity and i had passed every time. Unfortunately I had a family member that had an emergency that night and had to spend most of the night caring for them. I have been targeted by my supervisor for using company given personell time which made my supervisor angry at me due to the fact that i was essential and hard to replace when not there. This went on for over a year! I followed the company rules to the letter and would have been able to prove this by showing my yearly reviews which had improved from fair to good but didnt bring this point up . Also I was able to overturn warnings that accused me of being late leading to suspensions when in actuality I used my personell time and when I brought it to the attention of H.R. my suspension was dropped. It was then that my supervisor said to me alone that "I was going to start a war" and he wasnt going to deal with it no matter what it took . He then began to write me up for anything under the sun. I talked to coworkers and other supervisors for answers why this was happening to me and I was told that "when my boss dont like someone just like the guy before me this is what he does its like dejavu all over again". Another boss had told me that "between you an I your boss dont know how to be a boss" so im in a tuff spot right now

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    You misunderstand me. I'm simply confused as to what the legal question for the forum is.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    You misunderstand me. I'm simply confused as to what the legal question for the forum is.
    Well my first post was a simplified version of my hearing with all the important points included. And I asked if it sounds favorable to me or my employer. But now with help and time researching the standards used in deciding these cases I guess im asking if the members here can use the Standard Rules of Practice and Procedure, 801 CMR 1.02 and 1.03 and apply them to my case and see how it should turn out. I understand that its up to the hearing director but its not like she can just decide based on her "feelings" because there is rules that are followed in deciding these cases. I also just read a section of the notice I recieved on my hearing date that says ....The issue to be resolved is MGL c. 151A, 25(e)- Whether there is substantial and credible evidence to show that the claimant left work by discharge for deliberate misconduct. Im hoping to cross paths with knowledgable people in this matter to help me understand how these rules would decide my case. But when I read that eveidence can be faxed in at a later time and when I research the rules and they say that all evidence has to be presented in the presence of all parties to enable the opposing party to refute and cross examine then the advice is very conflicting.

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    Quote Originally Posted by ElleMD View Post
    If you had it and purposely with held it, I would not like your odds that the hearing officer will count that in your favor. This isn't court. The only question is whether you were terminated for a reason which would disqualify you for benefits. A positive drug test will 99% of the time.
    My point here is how would the U.I director know that I did violate company rules with a positive if the test results were not presented? Im asking respectfuly.
    Last edited by synfail; 10-10-2016 at 02:08 PM.

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