Worker says overpayment was honest mistake, state calls it ‘willful’


Gary Piper insists when he filled out an unemployment claim, last year, he made a simple mistake, owned up to it, and paid it back. But state labor officials claim it was a “willful misrepresentation” and they are demanding he pay a $100 penalty.

A heavy snow in March, 2017 caused many school districts to close, using “snow days”, including West Seneca where Piper is a substitute school bus driver, so Gary filed for unemployment.

However, Piper claimed an extra day, amounting to $61 too much, but the mistake was quickly discovered, and it was paid back immediately.

While Gary claimed it was an honest mistake, officials for the State Department of Labor called it a “willful misrepresentation”, and levied a $100 penalty. Piper appealed the ruling and an administrative law judge overruled the fine.

Despite the ruling, labor officials continued to send Piper terse notices to Piper’s Lackawanna home that he owes the state $100, which baffled Piper and his wife Laurie for months.

“They are threatening me with going after my bank account, going after my employer and telling my employer, and I could be fired, which I would have no means to support my family.”

Just this week, the Pipers finally learned why the Labor Department is continuing to demand he pay a penalty. The state appealed the hearing officer’s ruling to a board of appeals, and the penalty was reinstated.

Buffalo attorney Frank Housh is familiar with the process of penalizing unemployment claimants for mistakes, and the difficulty of proving incorrect information on a claim is not willful.

Housh said since the administrative law judge conducts the actual hearing, evaluates the evidence as presented, and listens to the witnesses as they share their testimony, it is unusual for an appeals board to overrule them.

“There is a principle of ‘appellate interpretation’ which gives deference to the finder of fact that is present.”

In Piper’s case, it was the administrative law judge that ruled in his favor, against the principle of appellate interpretation.

“The person who is there evaluating the witness in person is a better judge of whether they are telling the truth, or not,” Housh said, “than a someone who is later on reviewing a black and white paper record.”

Housh added, state law empowers the labor department to take the $100 penalty out of Gary Piper’s income tax refund, or take him to court, win a judgment, and garnish his wages, which could put Piper on thin ice with his employer.

As far as Gary Piper can see he is guilty, in the eyes of the labor department until he is proven innocent, but the deck is so stacked against him, it is almost impossible to prove his innocence.

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