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Unemployment Hearings – Issues and Evidence

By May 20, 2022June 15th, 2022No Comments

Success at an unemployment hearing often comes down to how well you are able to prove your case to the Administrative Law Judge (ALJ) presiding over the case. In a previous tip, we walked through what happens at a hearing, and this month we want to focus on the different issues that could be raised during a hearing and what evidence is needed to provide the best outcomes.

Remember that the burden of proof in an unemployment hearing rests with the party that initiated the claimant’s separation. In a discharge case, the employer will testify first, and in the case of a quit, the claimant testifies first.

At the outset of the hearing, you should have the claimant’s first day of work, last day of work, job title, and ending rate of pay.

Good Cause or Misconduct?

In discharge cases, most employers try to prove that the claimant was discharged for a good business reason or good cause. Employees can be discharged for good cause and still be eligible for unemployment benefits. Instead of making an argument that the employee was discharged for good cause, employers should focus on the fact that the discharge was for misconduct in connection with the work being done.

Misconduct is defined as a willful, deliberate, or wanton disregard for the employer’s best interest. In order to be considered misconduct there needs to be intent – did the claimant purposefully do something that could harm you or your business?

When preparing for an unemployment hearing, it is critical to show how the claimant’s actions were substantiated by the employer, within the employee’s control, and how the employees were aware that their actions could result in their discharge.

Discharge – The Basics

  • Evidence of how the issue was discovered and proven.
    • At the hearing, you will need to provide evidence to support the discharge. Most often this can be accomplished by providing an eye-witness account of the final incident. It is critical to present first-hand testimony to the incident that occurred, so ask the eyewitnesses to attend the hearing. If that is not possible, the next best option is to have the person who investigated and substantiated the issue attend.
  • Evidence that the actions were within the claimant’s control.
    • Behaviors that lead to a discharge are often outlined in your company policy or employee handbook. Having a copy of the policy is a good practice to show that the claimant was in control of their actions.
  • Evidence that the claimant was aware that their actions could lead to a discharge.
    • Items such as signed acknowledgments of the policy or handbook can help prove that they were made aware of the consequences of their actions. Prior warnings can also be used to prove the claimants were aware of the possibility of a discharge.

Hearsay Testimony

Sometimes the firsthand witness to a final incident may not be available for the hearing. Firsthand witnesses can answer questions from the ALJ about the details of the case that may not be known to someone who was not present at the time of the incident. They can testify to the events leading up to the incident or other details that may make a difference in how the ALJ rules.

While it is possible to obtain written statements from witnesses to the event, these documents cannot replace the verbal testimony of the firsthand witnesses at the hearing level. In addition, written statements cannot overcome firsthand testimony from the claimant.

Best Practices – Discharges

In addition to the information already outlined, there are some types of discharges that require additional information.

  • Discharge – Attendance / Violation of Attendance Policy
    • Details of the final attendance occurrence include whether the claimant was absent or tardy, whether they followed the proper call-in procedures, and most importantly, why they indicated they were absent or tardy.
    • Copies of any prior warnings or disciplinary actions that were received by the claimant related to attendance.
    • If available, a copy of the claimant’s attendance record or calendar.
  • Discharge – Unsatisfactory Performance
    • Details of the final incident/evaluation that resulted in the decision to discharge the claimant.
    • Details of any specific instructions or procedures that the claimant was given but failed to follow that could have had an impact on their performance level.
    • Copies of any prior warnings, disciplinary actions, or performance improvement plans that were received by the claimant related to performance.
  • Discharge – Drugs or Alcohol
    • Details on whether the claimant was asked to submit to drug/alcohol testing, was the test performed, and the reason the test was requested.
    • Details of who performed the test and the results of any testing. It is also important to document the chain of custody.

Best Practices – Voluntary Quits

The burden of proof is on the claimant in quit cases but you should still be prepared with evidence.

When an employee voluntarily leaves your employment, try to get a letter of resignation from them before they leave. This statement of why the employee is leaving can be used as a key piece of evidence in an unemployment hearing. The individual who accepted the resignation is the best witness to attend the hearing. This individual has first-hand knowledge and their participation will allow for rebuttal if the claimant states something different during the unemployment hearing than they stated when they resigned.

Other documentation that is beneficial in voluntary quit cases are:

  • Note any changes made to the hiring agreement such as changes in the hours, job duties, rate of pay, or location.
  • If changes were made to the hiring agreement, make a note of when those changes were implemented.
  • Did the employee let you know that they needed to make changes in order to continue working? Sometimes the employee’s circumstances change and they need to work at a different location closer to home or school or they need to change their hours. Keep documentation of any actions the claimant took to avoid quitting and if you had continuing work available for them.

The above information was provided in part by Thomas & Company.

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