Massachusetts Unemployment Overpayment Notices
Many people have been receiving notices from the Department of Unemployment Assistance ("DUA") claiming that they were mistakenly paid, or overpaid, regular or pandemic unemployment benefits. In part because of the additional funds made available during the early part of the pandemic, the amounts of these claimed overpayments can be staggering- sometimes $40,000 or more. It is important for you to know that you have appeal rights and the right to request a waiver of the overpayment.
Understand Your Appeal and Waiver RightsThe notice should contain information about your appeal rights and your right to request a waiver of the claimed debt. These are two different things and it is important you understand them both.
Your right to appeal is your right to challenge the decision that you should not have received benefits. If you are successful in overturning this determination, there is no debt to forgive or waive. The request for waiver is a request for the state to use its discretion to forgive, or waive, the claimed debt. This may happen if you were not at fault for the mistake and if enforcing the debt would cause a hardship. A waiver request does not operate as an appeal. We have had clients who filed for a waiver and believed that was the same as appealing the decision. This caused the appeal deadline to come and go, potentially precluding them from challenging the decision in the first place. The other reason it is so important to request an appeal immediately is that these overpayment determinations are frequently wrong. If you timely appeal, you have a good chance of eliminating the overpayment entirely. If you miss your deadline to appeal, the decision about whether to waive your overpayment will not consider the underlying merits of the denial. Can a Lawyer Help in the Overpayment Process?The answer to this question usually depends on where you are in the process. If you believe the underlying denial was wrong, and you still have a right to appeal that underlying denial, an attorney can usually help you navigate that process and adovcate for you in the appeal.
If your substantive appeal rights have lapsed (meaning you did not file an appeal in time and the DUA has rejected your request to file a late appeal), it may not make financial sense to hire an attorney. This is because the overpayment waiver process is usually focused on your ability to pay and hardship you are facing because of the unemployment, not any legal issues relating to the eligibility determination. How is the overpayment enforced?A private creditor has to go through a process of obtaining a judgment and going through certain post-judgment process to collect a debt from you. The state, however, has self-help remedies available. It can count the overpayment against any future application for unemployment benefits. It also can intercept your state tax refund if unpaid.
If you receive a tax intercept letter stating that your refund will be intercepted, you can have that lifted by proving that the underlying determination is under appeal. What if I don't have the money to pay the overpayment?The most cruel aspect of the current wave of overpayment notices is that most people who collected benefits used them for exactly what they were meant for- staying afloat financially during the pandemic. That means chances are when you get a letter saying you have to pay back twenty, thirty or forty thousand dollars, you have already spent those dollars on your basic living expenses.
The first thing to do, as described above, is to take advantage of the appeals process and the waiver process. There is a good chance you can address the claimed debt that way. You should also know, however, that even if your efforts to overturn or waive the overpayment are not successful, you may be able to discharge that debt through bankruptcy. Though we do not do bankruptcy law at slnlaw, we have several highly qualified, compassionate bankruptcy attorneys who we refer people to if they find themselves in a situation where they need to make that choice. |
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Meet Our Employment Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as a Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, and helped thousands of clients on both the employee and employer side with issues relating to wage and hour laws, including overtime pay, late or unpaid wages or commissions, employee misclassification, and retaliation against employees asserting rights under the wage and hour laws.
Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped clients with wage and hour disputes, including employee misclassification, late or unpaid wages or commissions, retaliation under the Wage Act, and advice to both employees and employers about wage and hour law compliance.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna has helped clients assess their rights under the wage and hour laws, including employee misclassification, untimely payment of final wages, late or unpaid commissions, retaliation, and advice to small business owners about wage and hour law compliance.
Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients with wage and hour claims, including late or unpaid commissions, retaliation, employee misclassification, and overtime, and litigated these claims in state and federal courts. He also advises employers about employment policies and wage and hour compliance.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped clients with multiple wage and hour issues, including retaliation, misclassification, and late or unpaid wages or commissions, and litigated these claims in state and federal courts.
How We Can Help
If you still have appeal rights relating to your overpayment notice, we can help assess your appeal and represent you in an appeal hearing. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
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