to Defend Unemployment Claims
When one of your former employees files for benefits, you'll
get an official report form in the mail from the state
unemployment agency. Fill it out and return it within the
deadline stated on the form! These deadlines are rarely
extended, even if you have a good excuse. If you don't respond,
or respond too late, the worker will automatically get benefits
in most states.
If you are away from work for an extended
time, be sure you have authorized someone
responsible to check your mail — if no
coworker is available, a friend, family member,
or even someone from your lawyer's office may
agree to perform this service for you. The
person should be told to open up any
official-looking letters from the IRS, from the
state unemployment agency or any other
government office, or from any law office.
Just give the facts. Typically, the report will ask
how long the employee worked for you, what his or her earnings
were, whether the worker quit voluntarily or was dismissed, and
what the facts surrounding the termination were. Don't give just
a one-word explanation — but don't write a whole novel either!
A few sentences should do it.
If you need to fire somebody because of
excessive unexcused absences, don't just write
"discharged for absenteeism" on the
unemployment claim report. Instead, you need to
say when the absences occurred, how many there
were, and when prior warnings were given. You
also need to say something about the final
incident that led to dismissal. You might say,
"John was absent from work without notice
six times within two months. He received oral
warnings after the first two absences, and
written warnings after the second two. After the
fifth absence he was warned in writing that
another such absence would lead to being fired.
On Feb. 21 he failed to return to work following
a scheduled vacation and was dismissed."
Go to the hearing. You should have a presence at any
hearings, formal or informal, before the state unemployment
insurance officials. This is the only effective way to present
your side and to respond to any false or incomplete statements
your ex-employee might make. The "burden of proof" is
on the employer — that means it's up to you to prove your
statements, by testifying or presenting documents. The
supervisor who actually witnessed the misconduct or other action
that led to the termination should be present to testify — in
most cases, that means you.
It's a good idea to have an attorney represent you at any
hearing, especially the first time you are involved in an
unemployment case. Attorney representation becomes a virtual
necessity if you lose at the hearing level and decide to appeal
to the court.
If you learn new facts, report them to the state. If
you later learn of facts that would disqualify the claimant for
benefits (for example, he or she turned down a job offer, went
on a long vacation without looking for work, or refused to take
the old job back if you offered to rehire the worker), report
these facts to the state unemployment agency.
If you lose, file an appeal. If the employee is found
eligible for benefits despite your objections, follow up with an
appeal to the administrative agency, and (if you lose again) to
the courts — unless, of course, your lawyer tells you this
would be fruitless in your particular case.
Don't let a possible claim stop you. Even though a
successful unemployment claim may raise your tax rates, don't
let the fear of a rate increase keep you from firing an employee
who is truly dragging your business down. One bad apple can
destroy the morale of an entire office.