Age: 53

Gender: M

Race/Ethnicity: White

Date: 8-17-09

Location where form was filled out: Rick’s home 

Violation of Article 23: The right to jobs at a living wage and just conditions of work

Violation of Article 25 (1): The right to well-being of a person and his/her family, including food, clothing, housing, health care, and necessary social services 

    In 2000 Rick was enjoying a stable and well-paying job in his chosen profession. Soon after, he shared with his employer that he had been diagnosed with a chronic illness and that he was being placed on medication for one year which would have bad side effects. During this year Rick was also suffering from a second yet undiagnosed chronic illness. Together these illnesses and medications left Rick weak and visibly ill. He began to endure severe and various forms of harassment by his supervisor and fellow employees for the following nine months. A new employee was hired and Rick was told to train him. The employer’s intent was to replace Rick with the new hire. In the spring of 2001, after many months of severe and relentless harassment, he went to the human resources manager early one morning and informed the employer that if the harassment against him didn’t stop he would seek legal help outside the company. At the end of the day Rick was informed he was being terminated and was told he had 12 “Disciplinary Action Forms” of insubordination and safety violations against him, however the employer did not produce these documents to Rick at the time of his termination, all of which Rick had never been presented with nor signed. He knew these documents were fabrication by the employer to show just cause for termination. (It is common that after the first three of these forms an employee would be terminated.)  

        Rick subsequently filed an Unemployment Insurance claim with the New York State Department of Labor, but his employer challenged his claim and a hearing was scheduled in front of an Administrative Law Judge. The employer failed to appear at the hearing. Rick testified and the judge ruled in his favor and he started receiving his Unemployment Insurance checks including retro-active payments. After his termination and prior to this D.O.L. hearing Rick filed a claim with the New York State Division of Human Rights due to the employer’s discrimination against him because of his chronic illness. He had no financial funds for an attorney and was not aware of any available free legal assistance so he represented himself and was interviewed about his claim by the N.Y.S. Div. of Human Rights. The claim was filed and was received by the employer after The D.O.L. hearing occurred. With the employers available funds they hired an attorney and he assisted in helping the employer lie to cover up the discrimination. This resulted with the employer prevailing. The employer then proceeded to retaliate against Rick for filing the Human Rights claim by asking the N.Y.S. Dept. of Labor for a re-opening of Rick’s U.I. benefits claim to attempt to deny him his Unemployment Insurance checks. Rick attempted to obtain assistance from Legal Aide but was told they didn’t handle Unemployment Insurance cases. A new hearing date was scheduled by the D.O.L. in front of another Administrative Law Judge and the judge allowed the re-opening based on the employer’s lies as to why he didn’t appear at the first D.O.L. hearing. At this second hearing the former employer committed perjured testimony and presented the judge with the 12 fabricated disciplinary action forms; this was the first time Rick had seen these documents. The judge asked Rick if he would allow these documents into evidence. Rick responded no and pointed out that his signature did not appear on any of these documents where it was required and due to the fact these incidences never occurred, thus these where fabricated. The judge noted this yet ultimately based his decision on the safety violations (which in reality never occurred) and ruled in favor of the former employer. Rick was told he had to pay back the unemployment insurance he accrued since the first hearing. Rick appealed this second decision, to which Rick submitted two depositions and asked for a verbal appeal all in the D.O.L.’s required time frame but was never notified of a hearing date.  

    Three years later Rick received a letter from the N.Y.S. Attorney General’s office stating that he still needed to return the money paid to him by the D.O.L., and if he tried to fight the D.O.L. on this he would have to pay attorney fees in the sum of $1,300.00 to the D.O.L. Rick did resist and wrote the required depositions to the Supreme Court Judge in Albany N.Y. He lost because the appeal process for the second D.O.L. hearing was never completed (because of the failure of the D.O.L. to set a hearing date ). He then was ordered to pay all U.I. benefit checks he received plus interest and attorney fees. When Rick received the minutes of the interview that the N.Y.S. Div. of Human Rights conducted with the employer he became aware that his former supervisor had shorted him pay during his employment by manipulating some of his time cards, and in addition was never given retro active pay for a deliberately delayed pay increase he was due, and he decided to seek retribution for these and other lost wages owed by filing a small claims case against his former employer. In this filing Rick requested the small claims court to subpoena the employer, supervisor and all of Rick’s time cards. At the small claims hearing the employer appeared with the same attorney he used from Human Rights claim, however the supervisor failed to appear, and only a few “select” time cards where brought with the former employer. The employer’s attorney asked the judge at this time to present Rick with a counter-claim for $1,700.00 for the employer’s attorney’s fees claiming Rick’s claim was frivolous, which the judge did. Shortly after Rick began stating his claim to the judge, the judge abruptly and without explanation ended the proceeding without giving Rick the opportunity to present his evidence. His decision was mailed, and Rick lost and he was ordered to pay attorney fees to the employer.  

        In appealing the small claims judge’s decision, Rick had to appear in front of a Canandaigua Supreme Court Judge who ruled that his small claims case was not frivolous and he would not have to pay the attorney fees for the employer. The Supreme Court Judge asked Rick if he wanted to have his claim heard again in small claims but Rick refused fearing the same small claims judge would find some way to rule against him. When the Attorney General ruled against Rick, any state income tax refunds that were due to him were withheld since then to “pay down” the unemployment insurance funds that the N.Y.S. Dept. of Labor believes he still owes. Knowing he did no wrong Rick never paid back any money to the D.O.L.  

        During this past year of 2009 he was laid off again due to the economy, and again, was denied unemployment insurance because of the money owed. He none the less was required by the D.O.L. to call weekly to claim for U.I. benefit checks which were completely recouped by the N.Y.S. Dept. of Labor to “pay down” the “overpayment” of unemployment insurance paid to him in 2001. Because he had no cash and no income of any kind, he was forced to file for chapter 7 bankruptcy to be relieved of the U.I. debt so that at some future point he would again be eligible for U.I. benefits. Rick borrowed the money for the filing and attorney fees from his mother and now owes her for this and additional monies for living expenses. The bankruptcy attorney and filing fees were paid to the attorney in full in May of ’09 and as of September of ’09 the bankruptcy was filed. The attorney claims she was to busy to get to it. At present the chapter 7 trustee is questioning if Rick can be relieved of this debt. (Although the D.O.L. told the bankruptcy attorney a discharge is allowable).A hearing is scheduled.  

       Given that he was no longer working and thus, no longer had employer-based health insurance, no money and no unemployment insurance he called the Department of Social Services who reported that they would send him a food stamps, public assistance and Medicaid applications. After a week passed and he had not received the application, he called the Department of Social Services, who then sent him an application written in Spanish (he does not speak Spanish). He ended up going directly to the Department of Social Services to complete an application, but was turned away because he tried to submit the application at 2:48pm and they only accept applications until 2:45pm. He was told to return the following day.  

        He currently only has health coverage from New York State, but only for a few medications and visits a specialist for his chronic illness. He has been denied any other assistance (e.g., Temporary Assistance for Needy Families) because of the outstanding unemployment insurance funds, which also have increased because they have been accruing interest. Legal Aide accepted his request to fight the denials. At a Fair Hearing, Rick’s representatives presented to an administrative law judge, similar cases where applicants were approved for N.Y.S. public assistance even though the applicants owed money to the N.Y.S. Dept. of Labor Unemployment Insurance. This judge ruled that these cases were “indifferent” and he was again denied all assistance. His only recourse is then to file a lawsuit against the state, which Rick deemed would be a fruitless attempt to get an overruling. He has been discouraged by this denial and the other encounters with the state and has failed to move forward with this.  

    Rick has recently has found new employment with a temporary employment agency where he is being paid slightly more than minimum wage. He qualified for vocational training through VESID, but needed to take the current job in order to pay his bills therefore he could be available to train and obtain a better paying job. He lives with his mother where he struggles to help her with household expenses and the additional bills she has to pay for her health care coverage.