Winning Unemployment Hearings with Effective Witnesses

Published: August 15, 2023 by Vikki Chaffin

reviewing UI employer liability in Illinois and UI employee eligibility in Illinois

Proper management of unemployment hearings is a key aspect of ensuring an employer’s unemployment tax account is not charged for improperly distributed benefits, meaning unemployment benefits paid to a former employee who does not qualify for them. Triggering unemployment hearings by contesting benefits initiates a very important decision for employers: determining who should participate in the hearing.

Understanding Unemployment Hearings

An unemployment hearing is conducted when either the employer or claimant disagree with the unemployment agency’s initial determination and file an appeal requesting a hearing. The purpose of the hearing is to allow the claimant and former employer an opportunity to provide evidence and testimony in support of their position regarding the claimant’s separation from employment. There is sometimes a feeling that an unemployment hearing is an official legal proceeding before a court, but it is actually an informal fact-finding interview.

The hearing is conducted by a hearing officer or referee with the unemployment agency who acts as attorney for both parties during the hearing, asking questions of all witnesses to gather all of the relevant facts related to the separation. The hearing officer then reviews the facts and issues a decision on the claimant’s eligibility for benefits. Their decision supersedes the agency’s initial determination and becomes the final determination on the payment of benefits unless the case is appealed to the Board of Review and is subsequently overturned. The Board of Review only reviews evidence and testimony presented during the unemployment hearing, so the hearing is the last chance for both parties to ensure the critical evidence and testimony regarding the claimant’s separation are presented and considered.

Choosing the Right Witnesses

At an unemployment hearing, the hearing officer is bound by law to give the most weight to sworn, first-hand testimony. Documentation can be used to support testimony, but it cannot be given the same weight as first-hand testimony provided during the hearing. A common mistake by employers during the hearing process is not having the proper witnesses in attendance during the hearing. When considering who should attend an unemployment hearing, the first questions to be considered is “Who has the first-hand knowledge of the final incident that caused claimant’s separation?” A common mistake made by many employers is looking to an HR representative as their only participant because all the separation records are maintained in the employee’s personnel records, so the HR representative has all of the facts in front of them, however the true first-hand witness with the direct knowledge of the incident that caused the claimant’s separation is a direct supervisor or sometimes even a peer employee of the claimant. If an HR representative attends and testifies to records created by someone else or to someone else’s perspective of the events, their testimony is considered second-hand, hearsay testimony and will not be given the same weight as the claimant’s first-hand testimony to the separation events. In some states, such as Florida, hearsay testimony is not sufficient to prove misconduct on the claimant’s part in a discharge case even if the claimant is not present during the hearing to provide a conflicting account!

Written statements can be used to support first-hand testimony during a hearing, but they cannot be used in its place. The individual who provided the statement must be present during the hearing to be sworn in to provide their testimony under oath and the other party allowed and opportunity to ask cross-examination questions. If there are two individuals with first-hand knowledge of the separation, one can testify and the second person’s signed statement can be submitted in support of that testimony, but it is best to have both present to testify, if possible. If only one witness attends the hearing, and the claimant provides equally credible testimony that is conflicting, the unemployment law is written to side with the claimant. Having two witnesses who provide first-hand testimony can overcome any conflicting testimony provided by the claimant.

To increase the chances of winning unemployment hearings, employers should prepare their witnesses and make them aware of the following information:

  • All testimony is taken under oath and recorded to preserve a record of the hearing
  • Each party is given an opportunity to provide testimony
  • Only one person at a time may speak
  • In the case of a discharge, the burden is on an employer to prove misconduct
  • In the case of a quit, the burden is on a claimant to prove they quit with good cause related to the work
  • The primary spokesperson for both sides will be given a chance to cross-examine each witness
  • A decision is not made during the hearing. A written decision will be mailed, usually within two weeks of the hearing.

Reducing Unemployment Tax Costs

The major goals of the 2011 UI Integrity legislation was to avoid overpayment of unwarranted unemployment benefits and to reduce the administrative costs of unnecessary unemployment hearings by requiring employers to provide all relevant details regarding a claimant’s separation at the initial claim level. By ensuring that all necessary details and documentation are submitted for the initial claim response, an employer can avoid having to file avoidable appeals and attending unnecessary hearings.

Employers carry the burden to prove that a discharge was due to misconduct on the claimant’s part or must be ready to defend against a claimant alleging they quit due with good cause related to the work, so they must ensure that they have the best witnesses in attendance in an unemployment hearing and understand the nuances related to state specific unemployment laws, rules, and regulations.

Outsourcing unemployment management provides employers with expert help when it comes to reviewing documents and submitting them to both the claimant and the state agency, determining appropriate witnesses and preparing them for the hearing, or providing representation during the unemployment hearing. Consequently, employers ensure effective handling of and winning unemployment hearings while reducing unemployment tax costs.

Improve your unemployment claims management with an automated solution to achieve high efficiency, cost savings and support while navigating the complex unemployment insurance processes.

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