Real world tips on fighting unemployment claims

published in Oklahoma Employment Law Letter | July 1, 2012

By Charles S. Plumb

At its June meeting, the Tulsa Area Employer Council hosted Ed Evans, chief hearing officer for the Appellate Division of the Oklahoma Employment Security Commission (OESC). In his presentation, Evans explained the OESC’s process for considering and deciding unemployment benefits claims. His presentation also included many practical suggestions for employers on how to successfully oppose unemployment benefits claims.

General information about the process

Currently, the OESC has 14 hearing officers who decide unemployment appeals, and half of them are lawyers. At any time, there are approximately 22,000 unemployment benefits claims pending in Oklahoma. Of the OESC’s initial determinations for unemployment benefits, 20 percent are appealed. That means 80 percent of the time, unemployment benefits claims are decided at the initial stage by the OESC without a telephone hearing.

Continuances or delays of hearings and deadlines are rarely granted. The U.S. Department of Labor (DOL), which funds state unemployment programs, imposes time guidelines that the OESC must adhere to. The commission must resolve 60 percent of all unemployment claims within 30 days, and 80 percent of all claims must be resolved within 45 days.

It’s all about preparation

Employers that do their homework and prepare properly will be more successful in opposing unemployment claims. When you receive notice that a former employee has applied for benefits, review all relevant documents and talk to the individuals who have firsthand knowledge of the reason for the former employee’s separation from employment. If there is a reason the former employee is not entitled to benefits, identify it.

Making a timely and specific objection is key

When opposing unemployment benefits claims, employers face relatively short time frames. After receiving the initial notice that an application for unemployment benefits has been made, an employer has 10 days to object. Likewise, an employer must file an appeal of an initial unemployment benefits award within 10 days of the determination being mailed. Missing deadlines is the most common problem for employers, so make sure you hit those dates if you want to oppose an application or appeal an initial award.

When opposing an application, it is not enough to simply say, “We protest.” Your objection and appeal should include a detailed summary of the reason the former employee should not receive unemployment benefits. At the very outset, get in the OESC’s hands all the documentation supporting your opposition to an award of benefits. Help the commission make sense of the documents you are providing. Include a summary explanation of the documents and/or an index, which helps the OESC focus on the information that is pertinent to whether a former employee is entitled to unemployment benefits.

What is and isn’t ‘misconduct’?

The most common basis for an employer to oppose an award of unemployment benefits is misconduct. However, there is some confusion by employers about what constitutes sufficient misconduct to justify a denial of unemployment benefits. Although inefficiency, unsatisfactory performance, errors, mistakes, inability to do the job, or isolated incidents may justify an employee’s discharge, those reasons generally do not rise to the level of misconduct that would disqualify an employee from receiving benefits. To establish misconduct sufficient to deny unemployment benefits, you must demonstrate the employee acted intentionally and deliberately, as opposed to carelessly and negligently.

Resist the ‘Perry Mason moment’

Appeals before a hearing officer generally occur by telephone, and Evans offered the following suggestions on how to conduct the most effective presentation during a hearing:

  • Focus on the reason the employee is no longer working for you. The hearing officer is not interested in why the individual is a bad person.
  • Present witnesses who have firsthand knowledge (not hearsay) of the reasons for and circumstances surrounding the former employee’s loss of his job. Written statements and affidavits will be largely discounted, and you may be penalized if you don’t provide individuals who have firsthand knowledge or if you fail to provide relevant documents that are within your control.
  • Don’t argue the law; give the OESC the facts.
  • Don’t argue with any witnesses.
  • Skip the drama and theatrics.
  • Avoid asking leading questions of your own witnesses.
  • As Evans said, “If the horse is dead, stop [beating it].”

Like most things in HR, your likelihood of success is directly related to the effort you put into preparation. Evans’ presentation provides a great guide on where and how your efforts to oppose unemployment benefits may be best spent.