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Appealing Unemployment Compensation Repayment Orders

On Behalf of | Apr 12, 2022 | Firm News |

Michigan’s unemployment compensation agency has turned against the people who need it most. Hundreds of thousands of claimants, who made truthful applications, are being ordered to repay tens of thousands of dollars to the state – the very sums they needed to survive during the pandemic. Even as they try to navigate their way through their MiWAM online accounts and understand the confusing repayment notices, the Unemployment Agency is sending notices of garnishment of Michigan tax returns and wages.

While many attorneys are helping those with these issues, not everyone can be represented. Here is a second roadmap to supplement the first one we posted a year ago, which you should read first. That previous blog, “Roadmap to help you with unemployment repayment issues”, is found here.

How to Appeal on Your Own

First, order a copy of your entire file from the Unemployment Agency. Simply send an email to [email protected]; it usually arrives within a few days. **IMPORTANT** DO NOT send any social security numbers through email. Use only your full name and UIA claim number.

However, do not wait for the file if timeliness is an issue. Normally you have 30 days to appeal a negative decision, so get to work! (If you are late, read the section entitled “Late Appeals,” below.)

Make sure you appeal each and every notice you receive that you disagree with. Submit the appeal in all three of the following ways: fax, mail, and upload to your MiWAM account. (The fax and mail info will be contained in the body of the notice under appeal rights or the heading “IMPORTANT: TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME”.)

In your appeal, cite the letter ID of the notice(s) you are appealing. You may submit a separate appeal for each and every notice you disagree with, or if you make it clear that you are appealing multiple decisions and name each letter ID separately, it is also acceptable to submit one appeal for all those negative decisions.

Protest of a determination or monetary determination you can use page 1 of this form. When you protest a determination, you are asking for a redetermination. For that, use page 2 of the same form. When you protest a redetermination or monetary redetermination, you are asking for a hearing.

You have 30 days to appeal a determination or redetermination. You can still appeal if you are late. On the forms, you will see that there are places to explain why you were late with the appeal.

You are free to use the space provided on the form or to say, “see attached” and explain in more detail. You are also free to submit any supporting documents you have along with the appeal.

Next, we will explain what to say in your appeal, in the section “Grounds for Appeal,” below.

Grounds for Appeal

There are many potential grounds for appeal. You should cite all that apply.

First, you should establish that you were originally eligible for benefits under the CARES Act provisions – see the original roadmap for those various bases for eligibility, here.

Assuming you were truthful with all your submissions and statements to the Agency, make sure to state that all the information you provided was true. [Statutory cite: Michigan Compiled Laws or MCL 421.62(b)]

If you followed the advice of an Agency representative, be sure to state that you relied on guidance from the UIA, including all the details of that communication, and that they granted benefits based on your application [MCL 421.62(a)(iii)]

A lot of negative decisions allege misrepresentation, and usually do not explain why. State that one of the reasons you are appealing is that the Agency did not allege fraud or misrepresentation with enough detail for you to make a fair defense.

If they are asking for repayment, state that repayment would be contrary to equity and good conscience [MCL 421.62(a)]

The Agency defines that standard here. You can also cite the federal definition under guidance from the Department of Labor, which provides that “recovery would be contrary to equity and good conscience when at least one of three circumstances exists: (1) recovery would cause financial hardship to the person from whom it is sought; (2) the recipient of the overpayment can show (regardless of their financial situation) that due to the notice that such payment would be made or because of the incorrect payment, either they have relinquished a valuable right or changed positions for the worse, or (3) recovery would be unconscionable under the circumstances.” See the following resources:

https://www.dol.gov/newsroom/releases/eta/eta20220207

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8527

https://wdr.doleta.gov/directives/attach/UIPL/UIPL_20-21_Change_1.pdf

If the Agency is stating that you were not “able and available for work” or cites “availability” as the reason for denial, point out that expanded guidance allows Michigan to issue blanket waivers of repayment for:

  • Claimants who responded “no” to be able and available to work and the state-issued PUA or Pandemic Emergency Unemployment Compensation
  • Claimants who were eligible for payment and the state provided a higher weekly benefit rate under federal programs
  • Claimants who responded “no” to being unemployed, partially unemployed, or unable or unavailable to work due to approved coronavirus-related reasons but received PUA assistance from the state.
  • Claimants who submitted proof of earnings that were incorrectly processed by the state resulting in a higher weekly benefit from the PUA program.
  • Claimants who submitted self-employment earnings and the state overpaid after incorrectly processing the information.

Sources:

https://www.mlive.com/public-interest/2022/02/michigan-can-waive-more-unemployment-bills-under-new-federal-guidance.html

https://www.mlive.com/public-interest/2021/07/truthful-unemployment-claimants-wont-have-to-repay-benefits-despite-michigan-error-whitmer-says.html

Michigan courts have recently been deciding cases against the Agency for reconsidering prior decisions too late. Normally, once they grant benefits, they may only reconsider that decision on their own within 30 days, and under no circumstances beyond one year. [MCL 421.32a(2)] If this applies, argue that the Agency reconsidered a prior determination or redetermination beyond 30 days but before 1 year without good cause. [Michigan Administrative Code 421.270]

Under no circumstances should the Agency reconsider a prior determination or redetermination after one year.[MCL 421.32a(2)]

Sometimes the Agency skips the determination and goes straight to a redetermination. If you receive a negative redetermination and don’t have a record of receiving the original determination on the same issue, argue that the Agency improperly skipped a step. This is based on the 2021 Michigan Supreme Court case of Dep’t of Licensing & Regul. Affs./Unemployment Ins. Agency v. Lucente.

If all else fails, argue that you cannot afford to repay benefits because you are below the poverty line Under MCL 421.62(a), the Agency is required to waive restitution if the claimant is below the poverty line. Here is a form you can use to apply for this waiver.

 

Late Appeals

If you are late with your appeal, you can argue that you had a good reason for being late.

If you failed to appeal because the notices were so confusing that you weren’t sure what to do, say so. The Michigan Court of Appeals recently decided a case essentially held that where Agency notices were unreasonably confusing, that may provide good cause for a late appeal. [Barnowski v. Cleary University]

Examples of confusing notices include those that seem to have contradictory statements in the same sentence, such as:

    1. In accordance with Section 62(a) of the Michigan Employment Security (MES) Act, the collection of restitution owed as a result of the overpayment has been waived
    2. You have xxx weeks of overpayment this is not a bill
    3. You are not disqualified for benefits under MES Act Sec 62(b). Restitution is established.
    4. Or sometimes, you get two separate notices that seem to contradict each other.

A notice that states this doesn’t necessarily alarm the claimant to appeal:

    1. You are ineligible for benefits under MES Act Sec 28 1 (c) beginning xxx and continuing. You will not receive benefit payments during this period.
    2. Notice of change in benefit entitlement

You can argue that you stopped drawing benefits of your own volition (such as finding a job, going back to school, moving, etc.).

    1. Stopped drawing and ignored a notice
    2. contradictory notice

Of course, if you didn’t receive the notice, that can be a good cause as well, according to a March 2022 decision of the Michigan Court of Appeals. [Scott v. LEO/UIA]

 

Collection 

*Governor Whitmer has just issued a moratorium on all tax and wage garnishments for alleged unemployment debts through at least May 7, see article here.*

Without the moratorium, there is nothing to prevent the Agency from collecting restitution while your appeals are pending. They may garnish a Michigan tax return or wages in Michigan without going to court.

During your appeals, we urge you to NOT make any payment to the unemployment insurance agency voluntarily.

To delay tax refund garnishment, do not send in your Michigan tax return if you are expecting a refund because the agency has the right to seize it for the overpayment. (Here is the form to request a Michigan tax extension – otherwise our firm is not able to give tax advice.)

Garnishment of your work wages is another matter. If you are working in Michigan for an employer who is paying into the Unemployment system, the Agency will know where you are working. Generally – but not always – you will not face wage garnishment until you receive three overpayment notices from the Agency.

You also have the right to repay alleged overpayments voluntarily.

If your repayment is eventually reversed or waived, you should be able to recover all payments made to the Agency.

If you feel you want the assistance of an attorney, do not hesitate to send an inquiry to us at www.nachtlaw.com; please note that we are unable to help everyone.

We hope this guide has been of assistance, and we wish you the best of luck in this challenging process.