Don’t Let Omitted Evidence Stand in The Way of a Successful Unemployment Hearing!
It is commonly accepted that most State laws, internal unemployment department regulations and procedures are structured to favor former employees and increase the likelihood of awarding UI benefits. In Massachusetts, for example, agencies are directed to “construe liberally in aid of its purpose to lighten the burden on the unemployed worker and his family”. This legal guidance clearly instructs those ruling on claim matters to grant the benefit of any doubt to claimants, prioritizing their needs, where conflicting statements exist. It is our collective responsibility to ensure employers do not further erode their legal standing or ability to advocate for themselves, resulting in unwarranted claim payments.
One of the inherent disadvantages in the unemployment process is the ever-changing dynamic of employers. During an often protracted and prolonged process, the claimant is consistently available, even if they have started a new job. They are always ready and available to present first-hand, personal testimony as to why they believe they’re entitled to unemployment benefits. However, on the former employer’s side, they are commonly dealing with multiple witnesses — some of whom may no longer be employed with the organization themselves. Given the “Great Resignation”, this scenario has become increasingly frequent.
In terms of case management, the lack of key employer witnesses creates a serious evidentiary problem when a claimant presents conflicting information at a hearing. The Administrative Law Judge will always accept first-hand testimony over any hearsay or second-hand testimony. Even if the Judge believes the employer over the claimant, the Judge has a legal obligation to prioritize direct knowledge testimony.
The same requirements apply to hard evidence. Frequently, employer witnesses will have caught an employee stealing, altering a time clock, or fighting and it’s on videotape. Employees in call centers or receptionists are discharged for being rude over the phone and it’s recorded. Regrettably, employer witnesses make the mistake of attending the hearing without the actual video or audio recording, instead testifying as to what they saw or heard on the recording/video tape. Sometimes they submit a transcript instead. This is not advised and is weak evidence. The strongest evidence is the actual videotape or audiotape capturing the conduct for which the employee was terminated, and it must be available at the hearing to ensure the most successful outcome. Relying on the former employee to provide a direct admission of their wrongdoing at the hearing is unrealistic and costly. Where there is a lack of strong, contradicting evidence – the Judge will rule in favor of the claimant.
In the past, most hearings were in-person live proceedings and employers would bring a laptop, playing the video at the hearing for the Judge. However, things have changed, as almost all hearings in every state are conducted in a virtual manner (i.e. zoom) or via telephone. The question then arises: How do you get the videotape to the Judge in time for the hearing? Unfortunately, there is no uniform answer, as most states manage this process differently. Only a handful of states are electronically equipped to allow upload of video content before a hearing, like a document.
The other logistical issue to consider: The claimant is entitled to have access to all evidence submitted or referred to by the employer. Some states request employers send a thumb drive well in advance of the hearing. Other states allow use of your own camera on the virtual hearing to show the video on a laptop, others do not. Some states permit employers to email the file, others do not accept that format. Given the disparities and complications related to timely and acceptable submission of hard evidence, it’s critical to have the evidence ready and available when employers are responding to the initial claim.
UTCA works with closely clients to ensure we are aware of all evidence assets, analyze them appropriately and submit per the state agencies guidelines. If you’re managing UI internally, ensure you’re well prepared and clear on each state’s guidelines well ahead of your hearing date. Ideally, hard evidence, if available during the adjudication process, should be submitted where the state has the capability to accept it at the Determination level. This could mitigate the need for a time-consuming appeal, entirely.
Are you lost, frustrated or overwhelmed trying to win unemployment hearings for your organization? UTCA is here to listen and guide you on the right path to making your next hearing a success! Get started and contact us today!