My Struggle With the Massachusetts DUA


After being laid off from Philips in April, 2004, I dutifully filed for unemployment assistance, since I was, in fact, unemployed.  The MA DUA has actually made it pretty simple (well, in governmental relative terms, I suppose) to file for unemployment benefits via phone or their web site. Being the geek that I am, I chose to use the web site to apply. After registering by phone, I found that each week I would have to log into the web site, verify that I had looked for work that week, and if I had made any money, tell them how much, and tell them if I became employed. OK - I can handle that.

An applicant is not eligible for benefit payments the first week of application, so I did not collect that week. I did, in fact, qualify and collect benefits the next two weeks.  On the fourth week I got a letter from the DUA stating that I was, in fact eligible for benefits retroactive to my layoff date. No shit, Sherlock - you've already sent me two checks.  Now, during this time period, I had been doing two things - first, putting my resume' out there, mostly on, but also sending résumé's to individual companies.  Secondly, along with that, I had resurrected a long dormant consulting firm (Burnside Aerospace) I had started back in 1983 and began attempting to become a Mechanical Engineering Consultant.

Well, of course Philips needed a few things cleaned up, so on the fourth week after my layoff I did a small amount of work for Philips and made enough partial employment earnings so as not to be eligible for benefits THAT WEEK. Over the next 15 weeks, there were 3 weeks in which I made partial employment earnings due to small consulting jobs from Philips and Noxilizer, and 2 weeks in which I did not file, due to being on vacation. In MY mind, I was eligible and should have received benefits for the other 10 weeks of that period. By the end of August, 2004, I had gotten some steady consulting work from a few companies, was clearly NOT unemployed anymore, and stopped filing for benefits.

Bureaucracy In Action:

Here's where the interesting part begins. After the fourth week (first partial employment week), I was contacted by one Jane Vogel at the DUA and asked about my eligibility, due to my consulting partial employment income. While trying to assess the criteria that the DUA would use to determine eligibility (I underhandedly and sneakily asked "What criteria will you use to determine my eligibility?") I got the response "We will look at all the information you give us and make a determination" (or words to that effect, three times, after I rephrased my question twice due to my inability to imagine that anyone would have such a difficult time interpreting my question). Which actually brings me to a digression - while wandering on a lake beach about 25 years ago, I saw a small motorboat with a speedometer. I found the owner, and, being an engineer, asked him "How does the speedometer work"?  He said, "it works great"! Yeah, it was like that.

Anyway, while I was merrily filing claims over the next few weeks, Ms. Vogel and associates were using their mystical and non-public criteria (phase of the moon, Tarot cards, goat entrails, misinterpretation of the law, or, in the words of Marlon Brando, from "The Wild One", "what've you got") to determine that because I had uttered the magical words "self employed" to Ms. Vogel, that I was thereby rendered completely ineligible for unemployment benefits, whether I was making money or not.

So, I filed a claim for a claim disqualification hearing, and they mailed me an acknowledgment.  This was in June, 2004.  I asked them not to schedule the hearing for July, since I was going to be away from home for three weeks. What a dope - did I actually think that there was a chance that they'd schedule a hearing within a month of my request? I must have been on crack that day. The week of August 21st, 2004, I signed for my last week of unemployment benefits (but of course, didn't get any, because they still claimed I was ineligible), and then, almost immediately afterwards, on October 15th, 2005, I received a notice from the DUA that my hearing would be held on November 1st.

First DUA Hearing - November 1st, 2004:

Whoo, hoo!  A hearing - and only five months after the request, and three months after I finished filing claims. I must have been born under a lucky star. So, I gather all my info, and head off to the DUA offices in Worcester on November 1st. Robert Durand, the Review Examiner (NOT the previous MA Secretary of the Department of Environmental Protection) was a nice guy. He listened to my story, reviewed my documentation, asked me a bunch of questions about, Burnside Aerospace, and how serious I was about finding a job, and then told me that he'd be sending me a ruling within a week or two.  So, on November 30th, 2004 (that must qualify as a week or two in government bureaucracy speak), I received a letter from Mr. Durand stating that I was ineligible for unemployment benefits due to the fact that I had been self-employed.  Sheesh.

The next step was to request an Application for Further Review by the DUA's Board of Review, so I wrote them a letter doing just that. On December 13th, I received what for all intents and purposes was a form letter, denying my application and stating that my only recourse was to sue the DUA in district court within 30 days of that notification. Well, I was pretty discouraged at that point, so I let the thing sit on my desk for three weeks, figuring that it wasn't worth the trouble or time to keep fighting. However, with one week to go, I figured "fuck it" - they owe me $5K, and I'm going to try to get it.

Law School On The Fly:

I had a short conference with a local lawyer (Todd Fenniman of Burrell, Fenniman and Summers, LLP) who told me how to go about it (cheaply).  He pointed me to the Lowell Court Law Library for reference material. I headed over to the library and spent some time there finding a sample "Complaint", as well as reading up on Unemployment Law. Hey - this isn't so hard, after you get past the arcane language structure, and find someone in the library who knows where things are. I wrote up a Complaint, went to the Concord District Court and filed my claim, and then headed down to the Suffolk County Sheriff's office in Boston to have them serve a copy on John P. O'Leary, Commissioner of the DUA. All in all, it cost about $400, between the lawyer's fees, the filing fee, and the serving fee. Well, a 12:1 return on my investment will be OK if I win, and it's not a lot more money if I lose.  What the hell.

After a few weeks, I received a notice from the court that a hearing had been scheduled for March 18th, 2005 - I figured that was FAST, given the glacial pace of the DUA and the reputation of the courts as being slow.

You may view my Complaint for Judicial Review here.  It's a PDF file, but a small one (being text only - I'm not sure how the MA court system would react to a complaint with an embedded PowerPoint presentation, or animated GIF files :-) ).

You can review the Massachusetts General Laws for Employment and Training (Section 151A) here, and if you find anything that indicates that person attempting to be self-employed (rather than find work for someone else) is ineligible for unemployment benefits, please, point it out to me.

Further updates after the hearing on March 18th :-).

Upshot (well, almost) - Court Hearing - March 18th, 2005:

Well, March 18th rolled around today. Yesterday I wrote up some talking points, so that I wouldn't be winging it when I got in front of the judge.  I basically summarized the complaint shown above, and adjusted it for verbal presentation.  I got to court about 15 minutes early and sat down in the courtroom while some random case was in progress - turned out to be some plea bargained drug case for a teenager (why does THAT sound so intriguing....).  At 10 AM, when the civil cases were supposed to start, the judge got up and left the courtroom.  Someone called out my name (well, my father's name [Mr. Zeitlin] - I'm "Marc", but I figured that since my father wasn't there, they were probably looking for me), and it turned out to be the attorney for the DUA.  From that moment on (actually, from the second I walked into the courthouse), absolutely nothing went as I had expected.

The first thing that the attorney said was that he was going to make a motion for a continuance (maybe not the exact right terminology), because the DUA believes that they did not conduct the original DUA hearing correctly - he said that Mr. Durand did not collect the information that they needed in order to correctly make a benefit determination, and that he wanted to hold another hearing to do so. I was skeptical, but we talked for about 10 minutes regarding the issues around self-employment, the probable actions of the judge if I opposed his motion, and the probable actions of the judge if I agreed to it.  We also discussed the time frame involved, and picked May 20th as a date that the DUA would have to have a determination by.

Although I was (and still am) adamant that the law supports my position as stated above, he was equally adamant that this particular point of law has long since been settled, and that if someone is considered "self-employed" (and we'll get to the definition of "self-employed" in a minute, because that what this will eventually hinge on, it seems), they are ineligible for benefits.  So without arguing that point in the hallway WITHOUT a judge, and given that he believed (and is probably right) that the judge would grant him his motion for a continuance, I agreed to agree on the motion, with the stipulation that they would give me a firm date for the final determination of benefits for the 10 weeks in question.

Definition Digression -

So, what was the DUA's position on "self-employment"?  He claims that if a person works more than 20 hours/week at a "self-employment" venture, then they're considered "self-employed" and will be automatically excluded from receiving benefits, even if there's no income coming in.  While I find that difficult to comprehend (given my statements in the complaint), if it is, in fact, true (and I have no reason to doubt him - he's been in the DUA business for a while and has argued cases like this before), then he was giving me the ammunition I needed to CORRECTLY argue (and win) my case. Since I had, in fact, only spent 3 - 7 hours/week at the very most attempting to get Burnside Aerospace running in the 10 weeks in question, and probably about the same amount of time searching for a full time job, by his definition I should NOT be considered "self-employed", and should be eligible for benefits.

While he never explicitly said "here's what you need to do to collect", he was reasonably clear about what he was saying, and when I asked him why he was telling me these things, he said that he DID work for the people of the state of Massachusetts, and that he wanted to make sure that they got what they deserved from the system. I suppose he's in an interesting situation, where he's representing the state AND someone suing the state, but since I'm PART of the state, he has some interest in making sure MY interests are represented as well. Or maybe he's just a sap, or maybe I've totally mis-interpreted what he was saying, and he's going to tear me a new one the first chance he gets.

Back to court. At about 10:25 AM, only 25 minutes late, the judge came back in and called the first case. This was a hearing on a motion to dismiss a year long restraining order in a pending divorce case. Holy shit - what a nightmare. The husband's lawyer was a dickhead - the judge stopped him at one point while he was questioning (well, badgering to no purpose, really) the wife and told him that "you're not helping yourself here". The wife was representing herself. This back and forth regarding possible physical danger to the wife went on for 1/2 hour, and the judge eventually ruled in favor of the wife (not what I would have ruled, given what I heard, but hey, what the fuck do I know?).

Next, the court swore in about 25 people for the traffic violation section of our show. Stop signs, speeding, driving in the breakdown lane, loud muffler, blah, blah, blah, for about 45 minutes.

After that, there were two incomprehensible civil suits, in which it seemed like nothing happened other than lawyers on both sides agreeing to talk later.  I was getting hungry.

Finally, around 11:35 AM, we were called, and while the clerk did not pronounce my name correctly, the judge had no trouble whatsoever.  Must be Jewish :-). The DUA lawyer stated that we were both in agreement on his motion, the judge asked me if I agreed, and I said I was, but that I had a request. I told him that I wanted, given the excessive time frame already, to have a date certain that this would be concluded by and that I would have an answer from the DUA by. I asked for May 20th, and that if they didn't comply that I get a judgment in my favor. Can't hurt to ask, eh? After some questioning of the DUA lawyer by the judge, he decided to ORDER the DUA to have the determination by May 20th, but he wouldn't agree to a default judgment for me if they didn't comply. He did give the impression, however, that the court would look favorably on any motion I made when bringing the issue back to court if they didn't get done in time.

So, what's next? The DUA is supposed to schedule another hearing for me, after which the hearing examiner will determine eligibility, and the review board will approve or disapprove of his ruling.  I'll hear by May 20th.  If they pay me, we're done, and if they don't, I'll drag their sorry asses back into Concord District Court. In fact, I won't have to drag them, because I got a notice that our next court hearing will be on May 20th.

Next DUA Hearing - May 5th, 2005:

So five weeks rolls past, and I'm starting to think that the DUA has lost track of me, and that I'll have to try to argue my case in court on the 20th without having had the hearing that the DUA claimed they wanted to hold.  Lo and behold, I finally receive a letter from the DUA telling me that I've got a hearing scheduled in Worcester (again) on May 5th, at 10 AM. Whoo, hoo.  So on May 5th I head over to Worcester, park in the parking garage, and wander up to the 6th floor to the hearing offices.  I get there about 20 minutes early (just in case), and sit down to review my material. Guess who pops out of his office and asks if I'm Marc Zeitlin!  It's good old Robert Durand again.  He seems in a good mood, even though he's essentially been told that he did a crappy job 6 months ago, and that he needs to revisit the facts of this particular case.  He says to come on in as soon as I'm ready.  Well, I'm ready.

We go over the previous record, and he asks me if I'm familiar with all the info and the exhibits.  Yeah, I think so. Anyway, it seems pretty clear that what he's looking for is an indication of HOW MUCH TIME I spent each week on my self-employment work, vs. anything else. I once again show him the spreadsheet that I printed out back in November that indicated EXACTLY how much time (billable and non-billable) that I had spent working for Burnside Aerospace (my self-employment company). This was divided up on a monthly basis, while the DUA wants it on a weekly basis (since people file weekly), but the data was there and could easily be derived. I pointed all this out to him. I also made it clear that there was NO week (out of the 10 in question) in which I had performed self-employment activities to the tune of 20 hours, or anything close. I also made it clear that I had no clue where Ms. Vogel had gotten the idea that I spent 20 hours/week in self-employment activities (something she had written in her report) - I had NEVER told her that, and the data in the spreadsheet made it clear exactly how much time I HAD spent.

After a total of about 15 minutes, Mr. Durand stated that he had all the information that he needed, asked me if I wanted to say anything else for the record, and then let me go.  He stated that he knew that the court was expecting a decision prior to May 20th. He said that HE wouldn't be making the decision - that would be made by the Appeals Board, using the data he collected.

It was just about the time that the hearing was supposed to start, and we were done.  What an anti-climax.  I am hopeful that I will get a letter telling me that they've allowed my claim, and we can cancel the court date, which is quickly approaching.  We'll see......

Second Court Date - May 20th, 2005:

Since I did NOT receive any message from the DUA with a decision prior to the scheduled court hearing, I showed up at the Concord District Court promptly at 8:50 AM for the 9:00 AM hearing.  Why, I can't possibly tell you, because the judge didn't wander into the courtroom until the crack of 9:40 AM - 40 minutes late.  No apologies, of course - there were only 30 people waiting in the courtroom - no big deal for someone as important as a district court judge.  This was NOT the same judge as last time (not that that should make a big difference, since all the first judge did was grant a continuance).

Anyway, I had done a little bit of preparation, with some new arguments, the night before, had found a very small error in my submissions to the DUA that would cost me $200 of the total judgement (assuming I won), and recalculated what the final payment should be, including interest.  I was the first case called (whoo-hoo! - no sitting around watching traffic ticket and divorce cases for two hours!). It turned out that the DUA crack legal team DID NOT SHOW UP for this court date, and thereby was not there to present the court ORDERED decision on the court ordered date.

I'm thinking: "self, well, the judge has just GOT to rule in my favor - the defendent hasn't shown up for a court date, and should lose by default.  That's certainly what happens to us little folk when WE don't show up for a court date as a defendant". I should have just told my brain to Shut The Fuck Up, since it clearly didn't know what it was talking about, as the next few minutes would indicate.

So I get called, I stand in front of the judge, and he asks: "what's this all about?".  Nothing like good preparation for a hard day's work - I guess that wasn't what he was doing for the 40 minutes he was making everyone wait. I quickly explained that this was a denied unemployment benefit claim, that the court had ordered a delay due to the DUA's mistake and request for an internal re-hearing, and that the re-hearing had been held on May 5th but that I had not received any decision from the DUA, per the court's May 18th order. The judge and the clerk immediately went into conference, and although I had a few things I wanted to say I was not allowed to get a word in edgewise.

After about 3 minutes, the judge grants the non-existent DUA another week to render their decision, and says that I should come back to court the NEXT week (May 27th) for another go-round. I asked "may I ask the court why?", and was told "I've made my decision". Thanks, bub - fuck you too.

So. Unbelievable. Someone sues ME, I don't show up in court, I lose.  Someone sues the state of MA, the state doesn't show up in court after being ORDERED to do so, and after having admitted an error that caused us to be in court in the first place, and they get granted extra time without even having to ask for it.  Nothing like blind justice, eh?

So I'm ripped.  I can't even believe that I've got to go back to court for a THIRD time, because the DUA is showing itself not only to be incompetent, but also a scofflaw. I also can't believe that the judge would grant them another week, even without them being there to ask for it - what basis could he possibly have been using for that decision? Fucking dickhead.

I'm going to tack another $750 onto my request for the 6 hours that I've had to spend in hearings, re-hearings, and court dates, plus treble punitive damages for willfully ignoring the court's order. This is fucking unbelievable. I'm going to go to court on the 27th EVEN if I get a decision from the DUA in my favor sometime during the week.


So apparently the DUA lawyers didn't show up because they knew that the Board of Appeals had already rendered a decision, which had been mailed the day before (May 19th).  Of course, no one told me, and I didn't receive the package from the DUA until 2 PM, when the mail came.  The board "modified" (that's a polite way of saying that they overturned) their first decision, and decided that I was eligible for benefits for the weeks in question.  Yee, hah.

After the weekend, I spoke to a couple of folks at the DUA who were able to tell me how much money I'd be getting, and when I'd be getting it, so that I HOPEFULLY will not have to show up in court again.  Assuming I get the checks before the 27th, I can call up the court and cancel the lawsuit.

On Wednesday, May 25th, 2005, the Post Office delivered checks totalling $5,265 for owed unemployment benefits. This is essentially what they should have paid in the first place, so except for losing a few hundred dollars in court fees, etc., and the loss of a years worth of interest, I'm basically whole again.  Yippee.

Third Court Date - May 27th, 2005:

No more to come, apparently. I have cancelled the court case, given the DUA's payment of all of the claimed weeks.  We're done.


Part 1:

What did I learn? A few things, actually.

I learned that once again, my honest nature bit me in the ass (I ended up paying $3K to the Mass. Department Of Revenue in "Use Taxes" for my airplane parts, because I showed them ALL the receipts I had. Of course, 7 months later, MA changed the law to make airplane parts exempt from sales/use tax). When Ms. Vogel called me and asked me whether I was self-employed, I could have said "no, I'm looking for a full time job", which wouldn't have been TOTALLY disingenuous, but not totally honest, either. Couldn't do that - had to tell the truth. Sigh. One cannot change one's inner nature, I suppose.

I learned that bureaucracies are SLOW :-).  Big surprise there, huh?

I learned that no matter what it sounds like when someone in a position of power tells you something (the hearing examiner, in this case), having expectations of a positive outcome in ANY situation is just asking for disappointment and unhappiness. Where's the Dalai Lama when you need him?

I learned that a "Review" performed by the same organization that made an initial determination is highly unlikely to overturn its own rulings.  Once again, big surprise, eh?  This is the same situation as having a police department conduct police misconduct reviews, or having Bechtel Parsons Brinkerhoff do a review of why the Big Dig cost 6X it's original estimates - it's the fox guarding the henhouse.

I learned that I understand the law (or at least a tiny part of it), and that I LIKE it, although I get a knot in my stomach every time I think about arguing my case in front of a clerk magistrate, against a lawyer who's actually been to law school and passed the bar exam. Although I was able to use a template and write a real legal document (reviewed by Mr. Fenniman for errors).

I learned that justice moves slowly :-).

Part 2:

March 18th - So what did I learn THIS time?

I learned that I should NEVER think that I know what's going to happen when I walk into a courthouse (probably true about just about anywhere and anything at anytime, actually, not just courthouses, but this is what I learned today).

I learned that if I ever get a traffic violation again (which I haven't for about 5 years, now, but just in case), I will contest it in court. Out of all the cases heard today, about 1/2 were ruled in the defendant's favor due to the complaining officer not showing up. About 2/3 of the ones where the officer DID show up were ruled in the defendant's favor, even with some pretty skimpy arguments, believe me - I wouldn't have given them the time of day with those arguments. In the rest, even when the defendant was found responsible, the penalty was lowered to $50, which was ALWAYS lower than the ticket.

I learned that even when I think I have interpreted everything correctly and know the law, I'm probably going to be wrong - there's always someone who's been doing it longer, seen it all before, and knows more. But maybe not :-).

I learned that District Court is both the most fascinating and the most boring place on the face of the earth all at the same time.  Who'd have thunk it?

Part 3:

May 5th - back to the DUA. I don't think I learned a damn thing, except that Mr. Durand is a pretty decent guy.

Part 4:

May 20th - back to court. I learned that the court is biased in favor of the state, and that Judge McKenna is an asshole.

I learned that the DUA will wait until the last second to perform, and that I probably don't have to go back to court.

Part 5:

There is no Part 5.

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Last updated: May 06, 2009