Contesting an Unemployment Claim: Appealing a Notice of Determination
After the state agency makes a decision, it will mail a Notice of Determination. Employers and claimants have the right to challenge the agency's decision if they disagree. An appeal will head to a hearing before an Administrative Law Judge.
Base your decision to appeal on a cost benefit analysis, says Hooker. "You have to make a decision about how much you want to spend to contest the claim."
However, plan to participate even if you are not the appealing party. The Judge's decision is based only on what is presented at the hearing. Be prepared to present and defend your position. If you choose not to participate, the hearing will proceed without you, and the decision will be based on the employee's evidence. Also, do not assume that at a later date, new evidence or information can be added.
Keep track of all notices that you get from the state and reply in a timely fashion. Bear in mind, there's often a short time frame to respond to notices. After all, Unemployment Insurance Agencies are charged with moving quickly to pay people who are out of work.
"Your appeal could be dismissed and the claimant could win just because you miss a deadline," says Milito. Also, make sure you provide all information that is being requested. Don't overlook requests such as subpoenas for witnesses.
Dig Deeper: Employees from Hell
Contesting an Unemployment Claim: Preparing for a Hearing or Trial
You will receive a Notice of Hearing that will state the date, time, type of conversation (telephone or in-person), and location of your hearing. Many business owners represent their companies during a hearing. In most cases, the benefits amount is not large enough to enlist outside legal counsel. In-house counsel, a HR officer or third-party unemployment claims administrator also can handle the case. But if the hearing is going to be about more than unemployment compensation, say a wrongful termination, you should plan on hiring an attorney to defend the company, advises Holmes.
Hooker says a common mistake business owners make is not providing sufficient evidence and argument early on in the process. Know the issues involved for qualification or disqualification of benefits, gather performance records and other documents, line up witnesses supporting your side of the case. Review the employee's statement attached to the Protest Acceptance. Write a summary of the key points you intend to present.
Facts, not conclusions, are the basis of a good case. Be prepared to answer questions about who, what, when, where and why. And do not rely solely upon written statements of witnesses as part of your evidence presentation, he cautions. If you have a statement concerning an employee's behavior, back it up with contemporaneous e-mail records, for example.
Finally, prepare all evidence well in advance and be ready to explain company records. "Don't wait until the morning of the hearing," says Hooker.
Dig Deeper: The Art of Firing
Contesting an Unemployment Claim: Improving Your Hiring Practices
The best way to defend a claim is to build in safeguards when you hire a new worker, by putting him or her on notice as to your company's policies, says Milito. Every new hire should be given a copy of the employee handbook, and asked to sign a form stating that he or she has read it and understands the consequences for failing to follow the rules. (Keep your handbook up to date, adds Milito.)
It also is important that you treat everyone the same. In other words, you can't let some employees break the rules and get away with it. For instance, "policies about tardiness can't be enforced in one department but not another division of the company," cautions Milito. "This is a preventive strategy to help employers with unemployment compensation claims and other employee issues that may arise."
Be diligent about keeping a paper trail regarding employee conduct, especially in disciplinary action. For instance, says Milito, even if it feels like overkill, you should file a police report if an employee threatens to assault a co-worker. If a worker claims harassment or that another employee is acting inappropriately, conduct a formal investigation, get statements from witnesses, and document your findings. Holmes says many undeserving individuals have received unemployment compensation simply because adequate records couldn't be produced. Don't let yourself become one of them.
Dig Deeper: A Sample Employee Handbook
