What should I do if an unemployment hearing is scheduled?

Both the employer and the claimant have the right to appeal any adverse eligibility determination.  Employers should therefore be prepared to not only appear at unemployment hearings, but to initiate appeals themselves if they disagree with a decision.

The initial eligibility determination is made at the local unemployment office.  The evidence at this level is generally weighed very informally.  The claims interviewer generally decides on the facts based upon his/her impressions about which party is most credible.

When a case is scheduled for a hearing, on the other hand, the evidence is looked at much more carefully.  At a hearing, whether the parties appear in person or by telephone, the testimony will be recorded and the claimant and witnesses will be under oath.  Thus, employers should be prepared to present their evidence in a way which will maximize their chances of protecting their account.  This means that employers should be prepared to present first-hand testimony from those persons with personal knowledge of the facts which led up to the separation.  The same evidence presented by someone else will not be given as much weight because it will be viewed as hearsay.

Be sure to read the hearing notice very carefully.  You may be required to submit any records in advance, and to provide copies of submitted documents to the claimant.  This is especially likely if the parties are scheduled to participate by telephone.  Failure to send these documents in advance may prevent you from using your records as evidence at the hearing.

Do not depend upon your records to carry the case.  At a hearing, the claimant's own sworn statements usually will be given more weight than any documents.  Even a sworn affidavit from the employer will be given only limited weight.  Nevertheless, documents can provide powerful corroborating evidence, if presented by the proper witnesses.  In addition, good records containing the facts (rather than conclusions) will allow the witnesses to remember the specific details that preceded each disciplinary action.

If one of your first-hand witness will be unable to attend the hearing, ask the judge (or referee) if you might be allowed to have them appear by telephone.  Try to anticipate which witnesses will be needed to prove your case.  If some potential witnesses will be unable to attend, bring whatever witnesses you can and try to arrange in advance to have any other potential witnesses standing by to participate by telephone, if their testimony is needed.

If an unforeseen witness becomes necessary due to unexpected testimony, ask the judge for a continuance in order to refute the claimant's testimony at some future time.

When you receive the judge's decision, review the reasons for the decision as well as the facts as presented in the written decision.  If you disagree with the reasons or the facts, you generally have the right to appeal the case to the next level (in the form of a letter to the appeal tribunal).  If you want to dispute the facts, you usually can request a copy of the hearing transcript.  The Board of Review (or The Commission in some states) will generally not allow the parties involved to submit additional evidence, but you can refer back to the earlier testimony on the transcript or question the judge's reasons for the decision.

If you are unsuccessful at this second level of appeal, you can always take your case to court.  While the cost of an unemployment claim rarely justifies a court appeal, in certain circumstances the precedent set in a court is well worth the cost.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.