HR News

The Unemployment Road Map, Part 7: The Unemployment Hearing Process

August 1, 2017

Even the best employment relationships can end and every former employee has the right to apply for unemployment benefits. If you’ve received an unemployment benefits claim and are not experienced with the process, you will likely have some questions. This blog series, The Unemployment Road Map, is a resource that TriNet offers to provide you with guidance on this journey.

We previously talked about the unemployment benefits appeals process. Here we’ll turn our focus to helping you prepare for the unemployment hearing process.

What is an unemployment hearing?

Unemployment hearings are similar to a hearing in a court of law but not as formal. The purpose of the hearing is to allow the parties to present testimony and evidence that will enable the hearing officer to make a reasonable and unbiased decision. Formal rules of evidence are relaxed in most jurisdictions. However, you should check your hearing notice for the rules regarding evidence and how they must be submitted, including whether evidence previously submitted must be submitted again and be provided to the claimant (your former employee) before the hearing. The hearing will usually be your final opportunity to submit any new evidence or testimony.

Burden of proof

The burden of proof most often falls on the party who initiated the separation. There are two possibilities: 

  • Voluntary separation: If the employee voluntarily quit, it is their responsibility as the claimant to prove by a preponderance of the evidence that they quit for good cause attributable to the employer. However, some states have exceptions where, even if the reason for separation is not attributable to the employer, benefits may still be paid. 
  • Involuntary Separation: If the employee was involuntarily dismissed, the burden of proof is on the employer to show that, per state unemployment statutes, the claimant should be disqualified from receiving benefits. Misconduct must be established to disqualify the claimant from receiving benefits. Misconduct is defined differently in each state. The determination may state the standard used by your state to define misconduct. Be sure to review all details, no matter how small or insignificant they may appear. Even small details may affect the hearing officer’s determination. 

Documents for the hearing

Employers attending an unemployment hearing should submit any requested documents to the hearing officer prior to the hearing and bring all necessary records to the hearing to defend their position. These documents might include, but are not limited to, the following: 

  • Employment history: The employee’s first and last day of employment, as well as their job title, duties and pay rate at the time of separation. 
  • Disciplinary history and performance reviews: Documentation of all warnings given, suspensions and performance improvement plans. 
  • Policies and procedures: This includes the company handbook, union rule book, applicable training manuals, exit interview documentation and any copies of posted bulletins regarding policies. Also bring signed “acknowledgment of receipt” forms for all of these documents. 

Choosing witnesses to attend the hearing

When selecting witnesses to attend your hearing, you should select colleagues and other witnesses who have first-hand knowledge of the circumstances surrounding the separation from employment. In many cases, hearsay (or second-hand) testimony and written statements are not permissible in the hearing or cannot be the basis of a decision unless it supports other evidence. 

For best results, notify your witnesses of the date, time and location of the hearing and arrange for them to be present. Check your hearing notice to see when and how witness information is to be provided to the state. 

Providing documents as exhibits

When deciding on the case, the hearing officer considers relevant documents presented by each party. For an in-person hearing, you should bring the original and two copies of all documents you wish to present as evidence. If either party feels a document submitted by the opposing party is irrelevant, they may object to its entry as evidence. Be prepared to explain your objection.

The proceedings for telephone hearings usually follow the same format as the in-person hearing, with one exception: the documentary evidence must be sent to the hearing officer and the claimant prior to the hearing date. Likewise, the claimant must send you a copy of any documents they want considered as evidence. Any documents you provide to the claimant should be sent via registered mail or by overnight courier. If all interested parties do not receive copies of documents, they may be excluded from evidence by the hearing officer. 

Subpoenas

If you are concerned about the cooperation of a witness, you may request that the hearing officer issue a subpoena. Issuance of the subpoena is typically at the discretion of the hearing officer, so your request should include a detailed statement indicating the importance of the individual's testimony. The request must usually be made in writing and should also include the witness's name and address.

When determining whether to request a subpoena, you should consider whether the witness's level of cooperation and demeanor during the hearing will help or hinder your case. Important documents may also usually be subpoenaed. In your request for a subpoena of documents, include a description of the records and the name and address of the custodian of the records. Please follow all rules and procedures for requesting a subpoena for either a witness or documents in your state.

What to expect during the hearing

Hearings are scheduled to be held either in-person or by telephone. It is important to follow the instructions given on the hearing notice for your participation. In some states if the appellant is not present at an in-person or phone hearing, the hearing officer may go forward and issue a decision.

 The hearing officer typically begins the hearing by explaining the legal issues, the purpose of the hearing and the procedures to be followed. He or she often explains the order in which individuals will testify and the rights of cross-examination and rebuttal. An oath or affirmation is then administered to all witnesses.  The moving party in the separation will usually present its case first. In a case in which the claimant was discharged, the hearing officer usually begins with the employer's testimony. If the claimant voluntarily quit, testimony usually begins with the claimant.

All testimony given during the hearing is typically recorded. The hearing officer may ask the witnesses specific questions regarding the separation. Witnesses should answer to the best of their knowledge with precise statements. Each side is given ample time to give testimony and present documentation. Do not interrupt while others are speaking. Instead, make notes so you may offer rebuttal later. If more than one witness is permitted in the hearing, the non-testifying witness may not help the one who is testifying. Only the testifying witness may speak at a time. Additionally, each party usually may cross-examine witnesses.  It is a good idea to ask questions that have a yes or no answer.

In most hearings, each side may offer a closing statement after all the facts and information have been presented. A good approach here is to simply recap the main points of your argument without rehashing the entire case. If you choose not to offer a closing statement, let the hearing officer know you would like to stand on the record. The hearing officer then concludes the hearing and states that all testimony and evidence will be considered.

After the hearing

After the hearing, you will typically receive a hearing decision by mail. The decision outlines the facts obtained at the hearing, the applicable laws or regulations on which the hearing officer based their decision and their conclusion either to uphold or reverse the initial determination on the claim.

If you receive an unfavorable outcome

An unfavorable hearing decision may have appeal rights to your state's board of review. Mere disagreement with the result is not a basis for an appeal. There must be a legal reason or error for a successful appeal. Appeals beyond the board of review usually are filed with the appropriate state court. At that point, the appellant is filing a lawsuit against the state. Therefore, if you decide to pursue a state court appeal, please consult with your legal counsel.

If you are a TriNet client who has received an unemployment claim or if you have questions about how TriNet helps navigate the unemployment claim process, contact your TriNet HR representative or the solution center at 888-874-6388.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

By Gail Knott

Gail Knott is a senior specialist, unemployment services for TriNet.

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