Automobile Dealer Magazine

Unemployment Benefit Claims: Prepare to WIN!

by Steve Robinson

Successfully contesting unemployment benefit claims requires PREPARATION, TIMELY RESPONSE, and FACTS. Because most states have consciously designed the unemployment compensation statutes to favor employees, all too many employers believe they simply cannot win. Not so, but you must respond properly! Following are some of the most common errors made by employers:

FIRSTHAND EVIDENCE ONLY: Evidence brought to a benefits hearing must come from persons with first-hand knowledge. That means that the supervisor who actually discharged the employee, or otherwise processed the termination, must present testimony. If you have no personal knowledge of the matter, are not a first-hand witness, or were not the decision maker, your statements won't count.

BE FOCUSED: The issue in an unemployment compensation hearing is very simple, in the case of a voluntary quit, it's whether or not the claimant voluntarily quit for good cause unrelated to the work. In the case of discharge (the most frustrating for employers), it's whether or not the claimant was terminated for "misconduct" connected with the work. To establish sufficient misconduct to disqualify a claim, you generally must prove that:

1. There was a MATERIAL DUTY owed by the claimant to the employer. Material duty is best substantiated by written personnel policies regarding standards of behavior. If you plan to win your case, your rules of conduct must be specific and reasonable.
2. There was a SUBSTANTIAL BREACH of the material duty. Most states do not accept "poor performance," "incompetence," or isolated instances as reasons for disqualifying an employee's claim. A trail of documentation is important to showing that an employee willfully, intentionally, and repeatedly disobeyed your work rules.
3. The breach was a WILLFUL or wanton disregard of the material duty. While most states hold that to do something knowingly is to do something willfully, proving intent is not as important as showing that the individual knew that if he/she continued the breach, discharge could result.
4. The breach did, or would, INJURE the employer's interests. If you can establish (and document) that a material duty was breached willfully, than a "tendency toward injury" generally can be concluded.

AFTER-ACQUIRED EVIDENCE: The interjection of after-acquired evidence is irrelevant in unemployment benefit cases. To win, you must prove that you acted on the basis of knowledge you had at the time you terminated the employee.

PREPARE AND DELIVER: All witnesses should be prepared in advance of the hearing. Essentially, this means gathering ALL documentary evidence and outlining your testimony. At the hearing, listen carefully to the testimony of all witnesses and the claimant,respond with facts! If needed, request a break to carefully prepare a response to false or otherwise misleading testimony given by the claimant.

AVOID DIALOGUE WITH CLAIMANT: Do not enter into dialogue, discussions, or arguments with the claimant! You will have ample opportunity to tell your side of the story; cross-examine the other side and offer rebuttal, closing evidence and arguments.

FINAL NOTE: Too many unemployment benefit claims for discharge cases are lost because of management's failure to act long before termination occurs. Before discharge becomes necessary, supervisors must focus on what employees do. If an employee is constantly late or absent, is making repeated work errors, is insubordinate, refuses to follow reasonable instructions or the provisions of your employee handbook, etc., the employee must be immediately advised (preferably in writing) that such behavior is not acceptable and informed of what is required of future behavior. A clear statement of what will occur if the behavior continues also must be given. When the observed behavior is repeated, prompt follow-through is the duty of the supervisor. Allowing an employee to continue the unacceptable behavior, or work until the end of the week or until a replacement is found, greatly jeopardizes your case. Prepare to WIN!

Steve Robinson is President of CORTECH in Hanford, California specializing in supervisor training, employee handbook publication, and personnel management support.