Claimant
Brian P. Carr
11301 NE 7^th St, Apt J5
Vancouver, WA 98684
503-545-8357

Employer
YESMAIL, Inc.
Bob XXXX
5711 S 86TH CIR
Omaha, NE 68127-4146
503-988-3405

10:09:30 Opening

10:09:30 8870249 Recording has started. ... Thank you for attending the conference. You are the first participant. Please hold.
10:09:45 Mr. Seideman This is Dale A. Seideman, this is a straw case referencing number U70249 for Brian Carr. Today's date is December 4, 08, time is now 10:09AM. I'll call Mr. Carr....
10:10:43 Mr. Carr Sure
10:10:44 Mr. Seideman OK...
10:11:15 Mr. Seideman OK now. Mr. Carr are you there?
10:11:17 Mr. Carr Yes
10:11:22 Mr. Seideman and [Bob]
10:11:23 Mr. Qugly Yes

10:11:24 Reschedule Hearing

10:11:24 Mr. Seideman OK. First I want to mention that this is an electronic deal. We are on the record and we are electronically recording this. And again my name is Seideman and I am an administrative law judge with the state and I have just been handed your case here this morning. I observe that due to some oversights here I think, first, Mr. Carr you had apparently requested some subpoenas and information and those have not been provided. Have they?
10:11:43 Mr. Carr That is correct, they have not.
10:11:44 Mr. Seideman OK, and I understand from correspondence that came in from you, [Bob], yesterday that apparently your key witness is unavailable.
10:11:53 [Bob] Well yes, one of our people that would be, well yes, one of our key witnesses, [Larry], he had actually been here earlier in the week and he is actually traveling back to Portland today.
10:12:05 Mr. Seideman Right, now it seems that it would be appropriate in the sense of fairness to both of you that we postpone this to a later date. Do you agree with that Mr. Carr?
10:12:13 Mr. Carr Absolutely
10:12:15 Mr. Seideman And do you agree with that [Bob].
10:12:17 [Bob] Yes, I do.
10:12:18 Mr. Seideman OK, then how about if we go ahead and schedule it for a later time and we will send out notices of the hearing on that. OK?
10:12:25 ??Mr. Carr?? OK
10:12:26 I will probably not be conducting that hearing because I will be issu... discussing with... Mr. Carr had some questions about things and it would be inappropriate for me to hear the matter after I answer those questions. The state will assign it to some one else. We will go ahead and continue it. I might add, I didn't put on the recording here but the date is December 4, 08 and the time is now 10:12AM. If both of you agree we will go ahead and reset this for a later date, OK?
10:12:59 Mr. Carr Excellent
10:12:59 [Bob] (response not recognizable)
10:13:01 Mr. Seideman [Bob] you can go ahead and hang up, but Mr. Carr I need to talk to you. OK?
10:13:04 Mr. Carr OK, Good, Thank you.
10:13:05 [Bob] OK, thank you very much.

10:13:08 Discuss Subpeonas

10:13:08 Mr. Seideman Now Mr. Carr, you sent in the notices, you sent in the request and you had a lot subpoenas you wanted to have issued. And do you still want subpoenas?
10:13:20 Mr. Carr Absolutely
10:13:21 Mr. Seideman OK, I'd like to go over these various ones and I might add I issue the subpoenas and so I want to go over. I have looked through the file and I see on your letter of October 28 you had wanted a, now is this is a voluntary quit hearing? Are you agreeing that you voluntarily quit?
10:13:44 Mr. Carr No I contend that they made it untenable that from their perspective it was to their advantage if the people who had maintained the old system which was now retired were fired or laid off but is was also to their advantage if they either got them fired or got them to quit. And they intentionally made it such that it was not possible for me to work there. In particular there were issues with
10:14:20 Mr. Seideman Is that because you couldn't work from home?
10:14:22 Mr. Carr Well, the work from home was one day every two weeks but it was also a flexible schedule so you could do it and that made it tenable so that if I needed to repair my car or the plumber needed to come by or who knows whatever I could still get in my hours. Just omitting that wouldn't have been such a problem but they also made it such that I had to get a leave of absence or paid time off I had to apply two weeks in advance and in most cases ... oops sorry ... it was declined. So, how does a single person live his life if his car breaks down if it is a condition of employment that he has to be there at 9 o'clock or he is fired. Well, gee.

10:15:11 Last Chance Agreement

10:15:11 Mr. Seideman: OK. Well then, let's.... What I'd like to do is address the specific items you have. Let's see, just a second. ... Let me get my documents here. ... The copy of the document referenced at the final meeting between you and Mr. John XXXX and Larry Thompson. What kind of document is that?
10:15:28 Mr. Carr It was a one page, what seems to be called a 'Last Chance Agreement'
10:15:34 Mr. Seideman Oh, a 'Last Chance Agreement'. Oh, OK
10:15:35 Mr. Carr I did not take a copy. There were three copies on the table. But we discussed other things.
10:15:43 Mr. Seideman So what you are saying is that that is a “Last Chance Agreement”?
10:15:45 Mr. Carr I believe it was. I don't have a copy so we are only going by my recollection of what I scanned.
10:15:51 Mr. Seideman Oh, OK. What you mean you scanned it?
10:15:57 Mr. Carr I just looked at it briefly.
10:15:58 Mr. Seideman Oh, OK. Scanned. I thought you meant computer scanned.
10:16:01 Mr. Carr No.
10:16:02 Mr. Seideman Oh, OK. “Last Chance Agreement”. Then, what, all emails sent or received by you as well as computer notes. That's for your full time of employment?

10:16:18 Access to email

10:16:18 Mr. Carr I had kept an archive of relevant emails so there were issues of productivity in the “Last Chance Agreement” there were questions as to was I working the required hours? Was I being adequately productive? Productivity was a key issue. And so in particular to ... I think that I was working in the best interest of the company and so as such to reference that and also to reference the working from home policy and things like that and how things changed when ... I have archives of emails which I don't have access to. So I would like ... like for them to provide access so that I can look up the emails of relevance.
10:17:04 Mr. Seideman Well, let me just tell you. We have an obligation and I have an obligation in determining what subpoenas to issue to make sure that they are relevant and material. Keeping in mind that this is an issue of your quitting and one of the issues being things being so bad did you have any reasonable but to quit. I don't think that going to all emails over the life of your employment over four years of employment with the company would be material or something like that. If you have a specific email or something like that I don't see... if things got bad over a long period of time you could make a decision as to what to do. But...
10:17:52 Mr. Carr I guess my problem then is how to describe it. I wasn't asking that they give me a copy of all the emails but rather permit me access so that I can look up the relevant emails because there were emails concerning particular problems that took longer to resove than expected but the problem was larger than expected.
10:18:16 Mr. Seideman But you can testify to that. But frankly I don't that the judge is going to be... going to be impressed that there were a lot of emails back and forth regrading a specific issue over a four year period.
10:18:28 Mr. Carr OK.
10:18:29 Mr. Seideman I really don't ....
10:18:30 Mr. Carr I see what you are saying.
10:16:43 Mr. Seideman Frankly with all due respect I think that you would be wasting your time on that. I don't think it would do you any good to try and hone in on something that happened a long time ago or that you didn't like the way that they were running the company or something like that.
10:18:47 Mr. Carr Alright, I will just. Alright, I understand.
10:16:43 Subpoena Witnesses
10:16:43 Mr. Seideman OK, now, you wanted some witnesses. I looking John XXXX and Larry XXXX and all that. Let me just mention this to you first, I do issue soubpoenas for people and if you want them we can do it within reason, I always mention to people because a lot of times they don't think this out. Do you know what those people particular people would say? How they would testify? The reason I say that is because the last thing you would find a lawyer doing would be to subpoena somebody if you don't know what they are going to say and it is kind of like shooting yourself in the foot. You know can get them in there and point out that they might disagree with you and all but I notice that a lot of these are still... are management types so are they going to be beneficial to your cause?
10:19:47 Mr. Carr Well I guess I have a problem in that there were seven people in the department six of whom have left the company.
10:19:58 Mr. Seideman No you can testify to that.
10:20:01 Mr. Carr Uh huh, but then I don't know and was never told the cirucmstances of their departure, so
10:20:05 Mr. Seideman And we can not, I might add I notice that that is referred to in a different letter of yours, ... We can not access anybody's personnel records other than you. That is confidential information.
10:20:18 Mr. Carr Including the period of when they worked?
10:20:20 Mr. Seideman That is correct because that is between them and the employer it is not between ... it is not between .... Those are confidential between the employee and the employer.
10:20:36 Mr. Carr OK.
10:20:37 Mr. Seideman So we can not get into any reasons, “Heh, why did they leave? Were they fired?” etc.. We can not get into any of that.
10:20:44 Mr. Carr OK. So if I wanted to include then it would most likely be the individuals themselves.
10:20:50 Mr. Seideman Oh exactly, you can not... we can not subpoena any records pertaining to another person.
10:20:57 Mr. Carr But that person can testify themself.
10:20:59 Mr. Seideman They can, yes.
10:21:00 Mr. Carr OK. Alright.
10:21:01 Mr. Seideman Do you just want to go ahead and contact them? I give you the one, you want to be sure that they are going to be beneficial to you. They do not have to be subpoenaed. Now we can issue a subpoenae to force them to do it, but a lot of times that is done where they might still be employeed by the employer and it kind of helps protect them a little bit, but it is not an insurance. But if they are no longer there then they probably don't need that.
10:21:35 Mr. Carr Right
10:21:36 Mr. Seideman My observation is that if they aren't willing to do it without a subpoena, heh, are they going to be beneficial to you? Again, you don't want to shoot yourself in the foot.
10:21:40 Mr. Carr Uh huh.
10:21:41 Mr. Seideman Does that make sense?
10:21:42 Mr. Carr Yes, I understand.
10:21:44 Access to Employment Department Records
10:21:44 Mr. Seideman OK. Then... Let's see.... That takes care of the letter of October 28, then you got the November 27; the names at the top are pretty much the same except that you have the authorized representive from the employment department, number 7.
10:22:02 Mr. Carr Right
10:22:03 Mr. Seideman I have a question. What good would that do you?
10:22:06 Mr. Carr I had asked.... I guess I don't know how.... I had asked that.... One of my rights is to see all evidence that has been included in my file and I received nothing. In particular I know that I had submitted an explanation of why it was an unreasonable, that they had made it impossible for me to work there.
10:22:20 Mr. Seideman OK, now let me just mention, just so you know, we are the office of administrative hearings and we handle hearings for about sixty state agencies and departments
10:21:38 Mr. Carr Uh huh.
10:21:39 Mr. Seideman and the employment department is one of them. All that we have in our file is what was sent to in the notice of hearing. They might have some information in their file that you had sent in but we have no access to it. Now I am assuming that you probably kept a copy of that.
10:23:55 Mr. Carr Oh sure, but I want to see what else was submitted by the other party.

10:23:01 No Access to State's Records

10:23:01 Mr. Seideman OK. You do not have... Well.... I don't think I would have the authority to do that either. In Circuit Court you can get into discovery and interviews and depositions and all that.... I don't think it is neces.... First if the employer wants to introduce any written information into evidence they have to you ahead of time. So unless they get a copy to you ahead of time we would not have access to it at the time of the hearing. So the fact that they may have turned in something to the employment department.... Frankly I doubt it, looking at this issue on a voluntary quit they wouldn't be looking at various documents that the employer sent in, their looking at primarily, “Heh, why did you quit and did you have good cause for quitting?” So my thinking is that if you have an explanation that you want to send in, then go ahead and do it. As it shows on the notice of rights, you need to get a copy to us and a copy to the other side ahead of time if you want to introduce it into evidence.
10:24:11 Mr. Carr OK
10:24:12 Mr. Seideman But I think it would be inappropriate for us to subpoena the whole file at the employment department.
10:24:18 Mr. Carr OK.
10:24:19 Mr. Seideman You understand that then.
10:24:21 Mr. Carr Yes.

10:24:22 Subpoena Employee File

10:24:22 Mr. Seideman OK, now I think that takes care of the upper part of November 27. Now then you want all job performance evaluations for you.... I can subpoenae your employee file if you want. Do you want that?
10:24:43 Mr. Carr Yes, please.
10:24:44 Mr. Seideman But I don't think we need to get into a history of pay raises and all pay bonuses. In my opinion that is irrelevant as far as a voluntary quit. Especially over a four year period of time.
10:25:01 Mr. Carr It is my contention that there was long stability amongst the different members of the department up until they started outsourcing to India and also turned off the old system that the seven of us had been supporting. And then within a year we were all gone.
10:25:17 Mr. Seideman OK, now, you all quit for various reasons or whatever it might have been and then the issue is, many times when people quit they are upset with what the employer did. But that doesn't.... In essence what you need to do is.... Your burden in this hearing is to show that your situation was so grave that you had no reasonable alternative but to quit. And one of the things you do before quitting is, “Heh can you get some other work?” Something like that. I am just telling you that you need to concentrate on that.
10:25:46 Mr. Carr Well I had offered to work in any other department, I had offered to continue to work as all the other departments had a work from home policy. And all the other departments had a reasonable paid time off. You know if you asked for paid time off, you got it. This department... The reason it is of relevance is that this department is was decided well we're excess, it seems to me, and they were just making it impossible for us to continue working there.
10:26:17 Mr. Seideman OK, but again I don't think we need a history of all pay raises for you and all bonuses. That, I don't think, was a factor in your quitting. From what you are saying...
10:26:29 Mr. Carr It wasn't a factor in my quitting, but it is indicative of an environment where they are.... Like the paid time off, you know you can....
10:26:35 Mr. Seideman You say, I am quoting you, “a history of all pay raises in the employers possession' over a four year period of time and then 'a history of all bonuses for claimant in the employer's possession'. Again, that is irrelevant in a hearing like this in determining whether or not you had good cause for quitting. Now you can get into the other issues you have. But keeping track of your raises and bonuses is, I think, would be irrelevant. And.
10:27:06 Mr. Carr OK.
10:27:07 Mr. Seideman I think it would be improper for me to have them go through their records and put all that together just because you would like it. You can testify to that, if you have problem that they didn't pay you raises that they promised, is there something like that? Is that an issue?
10:27:23 Mr. Carr The thing is there were regular pay raises up until the period when they no longer needed us and then the bonuses and the payraises decreased. It was just indicative that they were trying to get rid of us.
10:27:36 Mr. Seideman OK, you can testify to that. You can go ahead and testify to that. And again, the question is going to be did you look for other employment with a different employer before quitting. Were you just trying to have a job so that you would have something to do rather than just collect unemployment. So, again, you need to focus on that issue.
10:27:56 Mr. Carr OK
10:27:57 Mr. Seideman OK, now, a copy of the document referenced in the final meeting, oh the “Last Chance Agreement”. We talked about that before. OK. Access to all emails...
10:28:07 Mr. Carr We talked about that.
10:28:09 Mr. Seideman So we talked about that....
10:28:11 Mr. Carr I think this restates everything in the prior two.
10:28:13 Mr. Seideman OK, now what's the... oh, ... the date of hire and separation for all those other people. We can not ... I can not subpoena that...
10:28:21 Mr. Carr Right, we discussed that.

10:28:23 Written Policies

10:28:23 Mr. Seideman What is the written policy with respect to the prior approval of PTO, is that a significant thing?
10:28:32 Mr. Carr Sure because in particular there was the policy before which is, you know, paid time off was given liberally, and then when the department was just me was 'no, you can never take it' essentially. You know I have to use or lose it, your going to lose it.
10:28:49 Mr. Seideman OK. Was done a period of time before you quit?
10:28:51 Mr. Carr Uh huh. It was the change in no paid time off policy that made the no work from home policy untenable.
10:28:59 Mr. Seideman OK, again, you can testify to that.
10:29:03 Mr. Carr OK.
10:29:04 Mr. Seideman OK, so I think you'll be OK there. Now, the written and actual policy for working from home.
10:29:09 Mr. Carr See there what I would like to do there... cause the ... they do have written policies and I would like to get the written policies because they are published by YesMail, no InfoGroup, the head corporation which has the formal policy but I would also like to get a copy of the written policy which was ... those are on line only. I don't have a copy of them, and I would like a copy.
10:29:34 Mr. Seideman OK.
10:29:35 Mr. Carr Because it was the paid time off policy and the work from home policy in combination and, in particular, the changes, that made it impossible for me to continue to work there.

10:29:46 Service of Subpoena Procedures

10:29:46 Mr. Seideman OK. Now let's see, have we covered all your requests there
10:29:51 Mr. Carr I think so.
10:29:53 Mr. Seideman So then what I will do. Now what I do is I issue the subpoena, send it to you and then you would serve it on them.
10:29:58 Mr. Carr OK.
10:29:59 Mr. Seideman Now what office.... Let's see, just a second. What address should I use? ... First, we're at Yesmail, Inc.. Right?
10:30:12 Mr. Carr Uh huh.
10:30:13 Mr. Seideman Now what is their physical address? Are they in Portland or Vancouver or what?
10:30:24 Mr. Carr They are in Portland.
10:30:25 Mr. Seideman OK. What address?
10:30:26 Mr. Carr I don't have it... If ... My presumption is that I am supposed to serve it to the address on the file which is in Nebraska.
10:30:31 Mr. Seideman Yeah, right, but you would have to have it served there. You would have to have someone serve it on them there. My thought is... it ought to be.... I am assuming Yesmail whatever that is...
10:30:53 Mr. Carr has a Portland office and it would be more convenient to serve it there.
10:30:59 Mr. Seideman Sure and then they can get it from Omaha. And the next question that would come in, I would put the name of a person that you would serve.
10:31:05 Mr. Carr So it would be Larry Thompson, he was their key witness,
10:31:09 Mr. Seideman OK, and sometimes it would be helpful to have an alternate in case he would be unavailable. Do you have another name?
10:31:17 Mr. Carr We could put John XXXX.
10:31:19 Mr. Seideman OK. That's X X X X.
10:31:25 Mr. Carr Um huh.
10:31:26 Mr. Seideman OK... Now...
10:31:28 Mr. Carr I have a Portland address if you would like.
10:31:30 Mr. Seideman Yes. That's what I need.
10:31:31 Mr. Carr 3 0 9 Southwest Sixth Avenue
10:31:36 Mr. Seideman OK, Portland 97020?
10:31:40 Mr. Carr 4
10:31:41 Mr. Seideman OK, great, OK. Now let's see, are you still at the 11 3 0 1 Northeast Seventh Street apartment J5?
10:31:48 Mr. Carr That's correct.
10:31:50 Mr. Seideman OK, then I will go ahead and send this to you and then ... what I suggest ... we don't have a date in here... Now do you want them to mail or send those documents to you or do you want to pick them up at their office? ... My suggestion is that you pick them up at their office so that they can't say, “Gee we mailed them out, I wonder where they went?”
10:32:24 Mr. Carr Yes, that is fine.
10:32:26 Mr. Seideman Yeah, do you want me to do that?
10:32:28 Mr. Carr Yes, please?
10:32:29 Mr. Seideman Now I'll send it out today. Today is Thursday, Friday, ... Shall we make them have it available by next Thursday at 1 PM or something like that?
10:32:36 Mr. Carr Uh huh.
10:32:37 Mr. Seideman Have them... Have them make it available no later than Thrusday 1PM for you to pick up at their office. That doesn't mean that you would have to go in there
10:32:47 Mr. Carr Right. Fine.
10:32:48 Mr. Seideman but you could go in after that. Should we do it that way?
10:32:53 Mr. Carr Yes please.
10:32:54 Mr. Seideman Say also, how is YesMail? Is it all in caps? Or is it? I want to get it right. Everything I have here in the documents has it all in caps.
10:33:08 Mr. Carr That is commonly the way they trademark it. Sometimes I put the Y and the M in caps but I think the trademark is in all caps.
10:33:15 Mr. Seideman All caps, OK. YESMAIL, Inc.. OK, great. OK. OK then I will go ahead and issue the subpoena and send it to you today. OK?
10:33:24 Mr. Carr Alright, thank you very much.
10:33:25 Mr. Seideman Any questions?

10:33:33 New Hearing Location

10:33:33 Mr. Carr Is it possible to schedule a hearing where I could actually be physically present?
10:33:35 Mr. Seideman No, well is there a reason that you need to?
10:33:37 Mr. Carr Just that cell phones are not reliable and a cell phone is all I got.
10:33:42 Mr. Seideman OK, I think that what you can do is make arrangements or even use a pay phone if you have to. Oh wait, come to think of it, what you.... what you need to do is... I would suggest you get a land line, make avail... arrangements and let us know the land line deal. If this is set as a hearing like it is now. Actually what I ought to do is have them set it not as what we call a block hearing but have it as one where you'd call in and then you could even use a pay phone or go to the employment department or something and use one of their phones if you want.
10:34:24 Mr. Carr Uh, an employment department phone should work
10:34:27 Mr. Seideman As a practical matter, most of these hearings are by phone unless there is a good cause that you have to have it in person. It saves you, save the employer, saves the department, saves us time in doing that way and its much more efficient to do it by phone. Anyway, I will recommend that we not... that we have it so that you call in and then you can make whatever arrangements you want.
10:34:58 Mr. Carr OK
10:34:59 Mr. Seideman Then we give you an 800 or a regular number that you can call in. OK?
10:35:00 Mr. Carr OK, and then I will ask them what employment office I should go to.
10:35:04 Mr. Seideman Yeah, you are in Vancouver, you can go to the one in Portland. Look it up in the phone book and go there. You might call them ahead of time and make sure that you can do that.
10:35:15 Mr. Carr I would make sure that the find a location where they have scheduled block, ideally a cubicle and so on.
10:35:20 Mr. Seideman Yes, you'll just have to figure out how you want to address that. And ... and of course on a cell phone if you have your battery charged. Of course the reason we put that suggestion in there is because so many people forget to charge their battery and just let it go. And if you have your battery fully charged you shouldn't have any problem.
10:35:37 Mr. Carr That's true, I mean 99 maybe 98 percent of the time a cell phone works great, but it is that one to three percent that I am concerned about.
10:35:53 Mr. Seideman When you forget to charge the battery.
10:35:56 Mr. Carr I don't tend to have battery charging problems but some times you run into other problems. I mean and there not related to anything I can control. So, a cell phone is just not as reliable as a land line.
10:36:07 Mr. Seideman OK
10:36:08 Mr. Carr But if I am on a employment department land line, I tend to prefer in person because it is most reliable.
10:35:12 Mr. Seideman Well I know that you would like to do that it is just that our efficiency goes way down if we have to have in person hearings on something like this. Where the only reason is your own personal preference. So, ...
10:36:28 Mr. Carr Also the reliability. I don't have access to a land line.
10:36:33 Mr. Seideman I got an idea that you could find somebody who access to a land line if you need it but I will leave that one up to you.
10:36:42 Mr. Carr Um huh.
10:36:43 Mr. Seideman OK, I'll go ahead and get this in the mail to you and we'll go from there.
10:36:45 Mr. Carr Alright, thank you very much and I hope you have a nice day.
10:36:47 Mr. Seideman Thank you, Brian. Thanks.
10:36:48 Mr. Carr Bye.
10:36:50 Mr. Seideman OK, the time is now 10:36.