The unemployment insurance program provides employees who lost jobs through no fault of their own the opportunity to file for UI benefits for a short period to alleviate their financial hardships while looking for another job. For an employer, protesting and pursuing claims filed by employees who were separated for reasons within their control is important for many reasons, but most directly, ensuring that the employer’s unemployment tax rate remains at the lowest possible level. An unemployment hearing can be a contentious affair involving a former employee who may tell a story that doesn’t resemble anything that actually happened and occasionally, an unemployment hearing officer who may give the impression that they have already decided in the claimant’s favor. You may feel that the unemployment law is written to benefit the former employee and in a manner of speaking that can be true, but in many cases, the employer can be their own worst enemy during the hearing.
Here are four common mistakes that employers make that often result in an unfavorable decision from an unemployment hearing in what may have felt like a slam dunk case.
Presenting the Weak Witness
This is the most common error that we see when reviewing an unfavorable decision after an unemployment hearing. It is critical to have witnesses who have first-hand knowledge of the events that led to the claimant’s separation. Many times, an employer will elect to have someone from human resources attend a hearing because they may have been the one that discharged the claimant or conducted an investigation into the events that caused the claimant’s separation, but keep in mind that unless they specifically observed the incident or the claimant provided an admission of guilt to that HR individual, all of their testimony in the hearing will be considered second-hand information and therefore, hearsay. In that case the claimant’s first-hand account of what happened would be given the most weight in the hearing officer’s decision.
For example:
Charlie is a security guard working the night shift at the front-entry to a hospital on the 3rd shift. On October 1st, Charlie’s site supervisor comes to the post and finds Charlie leaned back in his chair with his jacket pulled over him like a blanket, sound asleep. It takes the supervisor three attempts to wake Charlie up. When he does, the supervisor sends Charlie home and lets him know that sleeping on duty at a guard post is a zero-tolerance, termination offense according to company policy, so the situation will be reported up to the district manager and HR for investigation. The district manager and HR representative speak to the site supervisor and based on the clear violation of a critical company policy, HR sends Charlie a letter of termination.
Charlie files a claim for unemployment benefits and the employer protests with a written detailed account of the incident including a written statement from the site supervisor of the event. Charlie’s claim is denied as a discharge for misconduct in connection with the work. Charlie appeals the state’s initial determination and an unemployment hearing is scheduled. The HR representative and district manager attend the unemployment hearing since they are the ones that made the decision to discharge Charlie and notified him of his discharge. They also provide a copy of the site supervisor’s written statement to the incident as evidence. During the hearing, Charlie denies that he was sleeping and testifies that he was not feeling well on the night in question and may have been running a fever. He claims that he was cold, so he did pull his jacket up, but he did not lean back, did not fall asleep, and just did not hear his supervisor when he approached.
While it may seem like a sure disqualification, Charlie is almost always found eligible for benefits in the hearing decision from this case. The only individual who had the critical first-handtestimony in this case was the site supervisor who witnessed him asleep. Without him present for the hearing to provide sworn testimony under oath, the hearing officer is required to give Charlie’s first-hand testimony the most weight, and he said it didn’t happen.
But what about the written statement? Since the site supervisor was not there to substantiate the events and be questioned under oath, the statement is discounted as hearsay as well and will not overcome the claimant’s testimony.
No Relevant Details Included in the Employer’s Statement
Another common mindset that will be heard before an unemployment hearing is “I’m going to only answer the question asked without giving too much detail”. Well, yes and no. The first part of the statement is exactly right. The hearing officer is tasked with gathering all the facts from both sides, so they will continue asking questions until they feel they fully understand both sides of the story, so you do want to only answer the specific question asked without attempting to throw everything out in one long monologue. However, providing the details of what occurred is critical to the case. Unemployment hearing officers love specifics (and first-hand testimony!), so you want to make sure that you are giving the important details to fully describe what occurred including what, when, and where the incident happened. Be forthcoming with the details during your testimony but avoid unnecessary or irrelevant information such as what you believe the claimant may have been thinking or feeling. Give the details of what you know as fact and you can substantiate.
Disorganized and Incoherent Stance
While it is important to provide the details of what occurred, it is also critical to present it in a coherent manner for the hearing officer to understand. In most cases, the hearing officer either won’t have reviewed the information in the state’s file or may be starting with a true de novo hearing, so they are starting from nothing and no preconceptions of the case. They will be making their decision based on the evidence and testimony that is presented during the hearing, so you need to have all the specific dates of incidents and warnings readily available. They will typically be asking for information in reverse chronological order, starting with the final incident and working their way backwards through the disciplinary history or key dates during the claimant’s employment. A good idea would be to have a timeline jotted down for your reference during the hearing, so you can be sure to hit every important date and incident as you are testifying.
Another common misstep at the beginning of a hearing is not having the basic employment information available. Almost every hearing will start with the hearing officer asking for the claimant’s hire date, last day worked, job title, and ending rate of pay. It happens frequently that a witness will be ready for anything that the hearing officer may ask about the separation, then the first question about the basics results in an awkward silence or shuffling of paper as the witness scrambles to find this info and utters the dreaded “I didn’t know that I would need that”. While this doesn’t make or break your case, it can be slightly irritating to the hearing officer and may fluster the witness at the outset of the hearing.
Showing Disrespect and Impatience
This one seems like a no brainer, but it’s always important to keep in mind that the claimant will almost always have a different recollection of the events that resulted in their separation, even in situations where they have voluntarily resigned. During the claimant’s testimony, it is common for them to make it an attack on the company or a personal attack on their supervisor or witnesses at the hearing. It is critical to maintain your composure during the hearing and present your testimony in a calm, cool, collected manner. Many times, the decision from the hearing will come down to the credibility of the parties in the hearing. Be sure that is always on your side.
In a quit situation, the burden of proof falls on the claimant, so the hearing officer will take all of their testimony first. Keep in mind that the hearing officer will give you a chance to provide your side of the story and a chance to rebut their allegations. Do not interrupt or interject during the claimant’s testimony! It will put you in a bad light with the hearing officer and may give them pause to consider the claimant’s testimony as more plausible.
Finally, keep in mind that the unemployment hearing officers are human. You may encounter a hearing officer that is having a bad day, doesn’t like their job, or just got out of a two-hour hearing with an employer who broke all the rules laid out here. Even if you feel that they are biased, being unfair, or are just being generally unpleasant, you need to keep your cool and continue to be respectful. Typically, they will still be fair and impartial during the hearing and exhibit the same behavior towards the claimant. If you feel that they stepped completely out of line, a concern can be raised with a supervisor at the state who can review the recording of the hearing and address the issue.
Eliminate Unemployment Hearing Mistakes with Outsourced UI Management
Employers who make sure the best witnesses are available at the hearing and prepare to present organized and detailed evidence and testimony while respecting the hearing process and the officer will have the best chances of a favorable decision.
The administrative rules related to unemployment hearings vary a great deal from state to state and missing any point in advance of the hearing can result in a forfeiture of an employer’s protest rights. In such a demanding environment, getting expert assistance to provide comprehensive service with the management of the UI process is the best possible choice to make.