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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 ???

  2. #2

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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 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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    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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    Testimony is also considered evidence; it doesn't have to be documentary evidence to be considered.

    Relax. The only one anyone here is in any way annoyed with is chyvan. You're perfectly fine.
    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
    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.
    FYI, not the UI director but a hearing officer.

    The decision will be mailed to you. The first section will be legalese, then it outlines the unemployment case. It goes on to state the evidence. Then it states the decision and the legal reason behind the decision.

    When there is no proof presented, the hearing officer will need to use judgement as to who is more believable. This is why you should takes steps not to irritate the hearing officer.

    It is very hard to guess which way a hearing will go, even if you are present at it. I have seen hearings I thought I won where I lost and vise versa.

    If this was an in person hearing, did you have an initial determination that one side appealed? First decision in MA is usually done via phone and proof being faxed over. Face to face hearings are usually done at first appeal.
    Last edited by HRinMA; 10-11-2016 at 05:51 AM.

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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 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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    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 printed this case of the massachusetts dock worker and his employer actually had the chain of custody form and the lab test results along with the employer's witness and the employer STILL LOST !!!!! Wow Im pretty sure just by how this case worked out Im good to go !!! If this employer still lost with all the proper documentation along with the company Dr just for doing a single specimen compared to my case with my employer having NO DOCUMENTATION I cant see how I would lose !!!?? Thanks for posting.

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