Many people who are fired forfeit valuable unemployment insurance benefits. This is because they do not know how to act or represent themselves properly at unemployment hearings. Many are told by unemployment personnel that a lawyer or other representative is not required and that preparation for the hearing is unnecessary. They then attend the hearing and are surprised to learn that the employer is represented by experienced counsel who has brought witnesses to testify against their version of the facts. Other people lose at the hearing because they do not know the purpose of their testimony or what they must prove to receive benefits.
For you to ensure you’re not one of the countless individuals that fall within this trap, it is crucial you get informed and know what is expected of you, and your rights.
This section will offer strategies to increase your chances of obtaining benefits at unemployment hearings when your case is contested by a former employer. Here’s a section of my book “The Employee Rights Handbook” that deals with just that. Read now and get informed!
1. KNOW THE LAW. Each state imposes different requirements for collecting unemployment benefits, such as the maximum amount of money that may be collected weekly, the normal waiting period required before payments begin, the length of such benefits, and the maximum period you can wait before filing and collecting. States also differ on standards of proof required to receive such benefits. You must know such essential details before filing. This can be done by contacting your nearest unemployment office.
The following questions are some of the points to consider asking:
- How quickly can I file?
- When will I begin receiving payments?
- How long will the payments last?
- What must I do (i.e., must I actively look for employment in order to qualify and continue receiving benefits)?
- How long did I have to work for my former employer in order to qualify?
- What must I prove in order to collect if my ex-employer contests my claim?
- When will the hearing be held?
- Will I have an opportunity to review the employer’s defense and other documentation submitted in opposition before the hearing?
- How can I learn whether witnesses will appear on the company’s behalf to testify against me?
- How can I obtain competent legal counsel to represent me?
- How much will this cost?
- Is a record made of the hearing? If so, in what form?
- Is the hearing examiner’s decision final and binding, or can the decision be appealed?
- Can I recover benefits if I was forced to resign?
- Is the burden on the employer to demonstrate that I was fired for a good reason (such as misconduct), or is the burden on me to prove that I did not act improperly?
- Can I subpoena witnesses if they refuse to appear voluntarily on my behalf? Will the hearing examiner assist me in this regard?
- Are formal rules of evidence followed at the hearing?
As you can see, collecting benefits may not be a simple matter, especially if your claim is contested by an ex-employer.
When a terminated worker comes into my office, one of the first points I consider is whether the employee was discharged for a valid reason. In most states you can collect unemployment benefits if you were fired due to a business reorganization, massive layoff, job elimination, or other reasons that were not your fault. In many situations you can even collect if you were fired for being unsuited or unskilled for the job or for overall poor work performance. However, you generally cannot collect if you resign voluntarily (unless you were forced to resign for a good reason) or if you were fired for misconduct. The following are common examples of acts that often justify the denial of unemployment benefits based on misconduct:
- Insubordination or fighting on the job
- Habitual lateness or excessive absence
- Intoxication or drug abuse on the job
- Disobedience of company work rules or policies
- Gross negligence or neglect of duty
- Dishonesty or unfaithfulness
Although these examples appear to be relatively straightforward, employers often have difficulty proving that such acts reached the level of misconduct. This is because hearing examiners typically seek to determine whether a legitimate company rule was violated and whether or not that rule was justified.
Hearing examiners, judges, and arbitrators use guidelines in making decisions at unemployment hearings and arbitrations. Many of these guidelines are relevant to successfully asserting one’s claim for unemployment benefits and are repeated here for your benefit.
- Did the employer have a clear rule against the kind of behavior that resulted in the firing?
- Is the rule reasonably related to the orderly, efficient, and safe operation of the employer’s business?
- Did the employer provide all employees with a reasonable opportunity to learn the company’s rules?
- Did the employer provide all employees with reasonable notice regarding the consequences of violating such rules?
- Has the employer administered and enforced the rules consistently and without discrimination among all employees?
- Did the employer take steps to fairly investigate the circumstances involved in the alleged offense?
- Did the employer obtain substantial evidence of the alleged act through this investigation?
- Did such acts meet the standard of law required to prove misconduct?
- Are there mitigating factors that reasonably explain the employee’s conduct?
- Was the firing fair under all of the circumstances?
- Were the employer’s witnesses credible in proving the action taken?
These considerations demonstrate the degree of sophistication that is often required to prevail at unemployment hearings. That is why you should carefully consider whether you require representation by experienced counsel at the hearing. If you are anticipating receiving the maximum benefits allowed (in some states this may exceed $425 per week) and expect to be unable to find gainful employment for a long period of time (e.g., six months), it may be advantageous to hire counsel.
2. PREPARE FOR THE HEARING. Once you file for unemployment insurance and learn that the employer is contesting your claim, it is your responsibility to follow the progress of the case carefully. Plan on attending the hearing on the date in question. If you cannot be present, speak to a clerk responsible for scheduling, explain your reasons, and ask for another convenient date. This should preferably be done in person. Indicate future dates when you know you can appear. Call that individual the day before the old hearing date to confirm that your request has been granted.
An unemployment hearing is not different from a trial. Witnesses must testify under oath. Documents, including personnel information, warnings, performance appraisals, and so on, are submitted as exhibits. The atmosphere is rarely friendly. Thus, you must prepare in advance what you will say, how you will handle tough questions from the employer, and what you will try to prove to win the case.
When preparing for the hearing, be certain that all your friendly witnesses (if any) will attend and testify on your behalf. If necessary, ask a representative from the unemployment office to issue a subpoena compelling the attendance of key disinterested witnesses (such as coworkers) who refuse to voluntarily attend and testify. Unfortunately, people who tell you they will appear do not always do so, and it may be necessary to subpoena them. If the unemployment representative has no authority to do this, wait until the first day of the hearing. Explain to the judge or hearing examiner the necessity of compelling the appearance and testimony of key witnesses. The judge may grant your request depending on the relevance and reasonableness of it.
Organize your case before the day of the hearing to maximize your chances of success. Collect all evidence so it can be produced easily at the hearing. Practice what you will say at the hearing. This will relax you and help you to organize the important facts. You can even prepare an outline of key points to be discussed and questions to ask each witness and employee of the ex-employer.
3. ATTEND THE HEARING. Arrive early on the hearing day and advise a scheduling clerk of your appearance. Bring your evidence and come properly attired (preferably in business clothes).
STRATEGY: In some states you can review the entire contents of your unemployment file before the hearing; don’t forget to show up early and ask for this if appropriate.
When your case is called, all relevant witnesses will be sworn in. Stay calm. The judge or hearing examiner will conduct the hearing and ask you questions. Speak directly and with authority. Show the judge your evidence. Talk directly to the judge and respond to his or her questions. Show respect. Always refer to him or her as “Your Honor” or “Judge” and never argue with the judge. If you are asked a question while speaking, stop immediately and answer it. Make your answer direct and to the point.
Avoid being emotional. Avoid arguing with your opponent at the hearing and avoid interrupting his or her presentation.
After your opponent finishes testifying, you will have the opportunity to cross-examine such testimony and refute what was said. In addition, do not be afraid if the employer is represented by an attorney. If you feel intimidated, tell the judge that you are not represented by counsel and are not familiar with unemployment hearing procedures. Ask the judge to intercede on your behalf when you feel your opponent’s attorney is treating you unfairly. Most judges are sympathetic since unemployment hearings are specifically designed for you to present your case without an attorney.
4. OBTAIN A DECISION. Decisions are not usually obtained immediately after the hearing. You will probably be notified by mail (sometimes one to four weeks later). Be sure to continue filing for benefits while waiting for the decision. Many people forget to do this and lose valuable benefits in the process.
You should begin collecting weekly or biweekly benefits immediately after receiving a favorable decision. Additionally, you should receive a lump sum check representing benefits previously due.
5. DECIDE IF YOU SHOULD APPEAL. If you are notified that you lost the decision, read the notice carefully. Most judges and hearing examiners give specific, lengthy reasons for their rulings. If you feel that the ruling was incorrect or you disagree with the judge’s opinion, you may wish to file an appeal and have the case reheard. However, it is best to speak with an experienced attorney to get his or her opinion before doing so. You may discover that your chances of success with the appeal are not as good as you think. Appeals are not granted automatically as a matter of right in many states. If the judges on the appeals board believe that the hearing judge’s decision was correct factually or as a matter of law, the decision will go undisturbed.
Recognize that the odds of winning the appeal are not in your favor. Often, the amount of time needed to review the transcript or tape of the proceeding(s), prepare an appeal brief, and reargue the case makes it too expensive and time-consuming. Thus, depending on the particular facts of your case, appealing the hearing may not be worth it. However, if new material facts come to light or relevant witnesses are willing to come forward and testify at the appeal hearing, this could make the difference. That is why you should always consult with an experienced employment attorney before making such a decision.
For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!