In case you missed it, the story below appeared in Sunday’s Business section. I’ve gotten some good feedback via phone and e-mail from other people in a similar situation, so I created a form* in Google Docs to collect more stories.
If you or someone you know has dealt recently with the Oklahoma Employment Security Commission on an appeal for unemployment compensation, please fill out the form here and tell us your story.
By PAUL MONIES
pmonies (at) opubco.com
Two minutes and a computer mix up might have cost Debra Carrick $8,500 in unemployment benefits.
A late appeal after Carrick’s former employer challenged her benefits has turned into a yearlong ordeal for the Oklahoma City resident. But she said the real cost is her confidence in a longtime social safety net and the system used to administer it.
“It’s been over a year and not a penny,” Carrick said. “Lot of heartache. What seems like thousands of hours. Some days I take a break from it, but it’s always one more thing.”
Carrick’s case highlights just one of the nearly 200,000 initial unemployment claims filed in 2010, according to the Oklahoma Employment Security Commission. That number has fallen since a 10-year high of 241,000 in 2009, but remains high as the recession continues to take its toll on Oklahomans.
Carrick, 51, has taken her claim through two levels of administrative appeals and into district court in Cleveland County, where the case is pending.
“People have told me, ‘Why don’t you just give it up and put it behind you?’” Carrick said. “But it just makes me mad and want to fight it more.”
Firing facts in dispute
The facts surrounding Carrick’s last day on the job are in dispute, as they are in many appeals for unemployment claims. Carrick worked almost two years as an accounts receivable clerk for Delco Diesel Services in Oklahoma City. She claims she was fired without cause in January 2010 after an argument with her former boss, David Lanham. According to hearing transcripts, Lanham claims Carrick cursed at him and he fired her on the spot.
That incident started Carrick’s yearlong effort to claim unemployment benefits. State officials wouldn’t discuss the specifics of her case because it’s pending in court, but called it an outlier. They said federal and state benchmarks for the system try to make the process as quick as possible to help the unemployed.
“If you’re unemployed this week, that unemployment check is going to do you a lot more good in two weeks than it will in eight weeks,” said Karl Jahnke, director of appeals for the Employment Security Commission. “If you’re eligible, it’s meant to replace some lost wages. Eight weeks from now, you may have missed a car payment.”
In the unemployment compensation world, the technical term for a worker who has lost his or her job is a “separation.” The employee must file a claim for unemployment either online or by telephone. If they have worked long enough and earned a minimum amount to qualify, they are mailed a notice of eligibility. Employers then have 10 working days to challenge the circumstances of the separation.
Separations are grouped into either voluntary quits or misconduct. If they can show an employee quit in some way, employers win appeals more than 80 percent of the time. But the standard for misconduct in unemployment claims cases is higher for employers. Claimants win those misconduct cases more than 60 percent of the time, according to Employment Security Commission data.
Until the recession hit, Jahnke said more than 98 percent of the appeals filed were cleared within 45 days.
“We haven’t been able to do that since 2009,” Jahnke said. “We just got run over, and we’ve been playing catch up ever since.”
Last year, Jahnke’s division heard almost 20,000 appeals, double the number it heard in 2008. The appeals division has gone from nine full-time hearing officers in 2008 to 14 in 2010. Jahnke said an ideal staffing number for the division would be 18 hearing officers.
The administrative hearing process is a little less formal than a courtroom, Jahnke said. Hearing officers, who average about 1,000 cases a year, oftentimes have to be both hand-holder and explainer for those unfamiliar with the system.
“We try to maintain basic due process and fairness so that it runs quickly and there’s not many technical trip-ups,” Jahnke said. “It’s kind of like a little court. It is a formal proceeding. We talk to each other nicely. But this is not ‘Judge Judy.’ There’s no yelling allowed.
“There’s also simply pride involved. We as a society are kind of contentious: ‘You’re not going to tell me I’m wrong.’ People will stand on principle, too: ‘You’re telling me I can’t fire that person?’ ‘No, I’m only saying we can’t deny them benefits.’”
For Carrick, a single mother who used to run several aviation-related small businesses, filing a claim was a last resort.
“My first thought was, ‘There’s no way I’m going to file for unemployment, that’s for losers. I’m just going to get me a job,’” Carrick said. “But then I saw (national) unemployment at 10 percent and I said, ‘It probably wouldn’t hurt to go down there, even if I only use it for a couple of weeks.’ Couple of weeks. That sounds funny now.”
Carrick, who had never filed for unemployment benefits before, said the system is daunting for first-timers. Long wait times on the telephone and problems with the online system compounded her frustration. The web-based system requires Microsoft’s Internet Explorer browsers and won’t process claims filed through other browsers such as Mozilla’s Firefox or Apple’s Safari.
John Carpenter, a spokesman for the agency, said it is upgrading its online claim system to reflect the range of browser options.
The Employment Security Commission’s call center handled more than 849,000 calls in 2010. The average wait time for an initial claim was a little more than 2 minutes. But the average wait time for follow-up calls fluctuated each month from a low of 19 minutes to a high of 47 minutes.
Carrick’s initial unemployment claim was denied because Delco Diesel provided a notarized statement by an employee who said he witnessed the confrontation between Carrick and Lanham. The claims analyst said that was enough to establish misconduct.
Carrick, however, said she had never before been written up or disciplined at her job. She also said the statement was notarized by Lanham’s daughter. It’s not illegal for family members to notarize documents, but the secretary of state’s office advises against it if the documents become part of a court case. The Delco Diesel employee who witnessed the confrontation, Dwight Daniel, told The Oklahoman he stands behind his statement, but declined further comment.
Both employers and claimants have 10 days to file an appeal if they aren’t happy with the claims analyst’s decision. Carrick filed her appeal via e-mail at 12:02 a.m. March 2, 2010, two minutes after the deadline.
Carrick said a range of issues kept her from filing the appeal until the last minute. With no income, she tried to get law students at the University of Oklahoma’s law clinic to take her case. They referred her to Legal Aid, which took the case but dropped it days later because of a heavy case volume. Carrick said she also encountered delays when filing for food stamps and in arranging financial aid to take business and computer classes at Oklahoma City Community College.
To Carrick, those two minutes have loomed large in the past year. If the appeals hearing officer wasn’t so strict about that deadline, Carrick said she could have better challenged Delco Diesel’s account of the day of her firing. Carrick appealed the hearing officer’s decision to the Board of Review, a separate panel made up of three people appointed by the governor.
“Considering this and the huge obstacles and impediments that came my way the entire last week of February 2010, I believe I have shown good cause for being two minutes tardy in responding to the false and defamatory allegations of Delco Diesel Services Inc., and that I was indeed laid off,” Carrick wrote in her appeal to the Board of Review in April.
The Board of Review affirmed the hearing officer’s decision in May. Acting as her own attorney, Carrick then took her case to Cleveland County District Court. After several more months, District Judge Tom A. Lucas ruled against the Employment Security Commission and the Board of Review.
According to a transcript of the ruling, Lucas said the Board of Review took a “knee-jerk” look at Carrick’s appeal that was filed two minutes late. He said even the legal system has some leeway.
“You know, we have lawyers down here at 5 (p.m.) knocking on the door, getting the clerk to let them in,” Lucas said. “If the clerk lets them in, they get it filed; and if the clerk doesn’t let them in, they don’t get it filed, and that counts. So I don’t know.”
The Employment Security Commission’s attorney, Teresa Keller, appealed the judge’s ruling, which was limited to the timeliness issue. It was not on the facts of Carrick’s firing. The next district court hearing is set for March.
For Delco Diesel’s part, Lanham would only say: “I believe OESC is a very competent group and I think they made the right decision.” He referred other questions to his attorney, Greg James.
James said Carrick’s appeals at the administrative level and in district court have been consistently late. He said Carrick had gone through what he called “on-the-spot” counseling for her behavior previously at Delco Diesel.
“It rose that day with the insubordination in the customer areas to a firing offense,” James said. “She’s got quite a mouth on her. I’ll just leave it at that. She was well-aware of the standards expected of her in the workplace.”
Carrick countered James’ assertion that she was disciplined: “If there are disciplinary records, I want to see them. It absolutely never happened.”
Meanwhile, Carrick said her yearlong experience with the Employment Security Commission makes it hard to believe she’s fighting for just $8,500 in unemployment compensation.
“I wonder how many taxpayer dollars are being spent to fight this case?” Carrick asked.
*Hat tip to ProPublica for the idea.
Written by Paul Monies