- Unemployment Hearings Require Careful Preparation
- May 22, 2013
- Law Firm: Dressman Benzinger LaVelle psc - Crestview Hills Office
- Unemployment hearings are the employer's only real opportunity to present its witnesses and exhibits. The best plan for a good result is to be prepared. Although there are two levels of appeal after the referee hearing, no new evidence can be introduced thereafter.
At a recent seminar hosted by the Kentucky Chamber of Commerce, officials from unemployment advised that copies of any policies or documents that are pertinent to the reason for termination should be presented as exhibits. Witnesses with first hand knowledge should be present to testify for the hearing. Having a witness who only has hearsay evidence will not be given as much weight as someone with first hand knowledge. The parties are now asked to submit a witness list and any exhibits five days prior to any telephonic hearings. The witness list and exhibits must be sent to unemployment as well as to the other party. It is best to fax the information to the unemployment office so that you have confirmation of receipt.
There are numerous reasons for the denial of unemployment benefits which are set out in KRS 341.370. Generally the most often litigated issue in unemployment hearings is whether the employee committed "misconduct". Employers must prove misconduct by a preponderance of evidence which means more likely than not the employee committed the infraction the burden of proof for misconduct remains on the employer. It is a very important distinction for employers to prove that the employee's conduct was deliberate and not merely unsatisfactory work. If an employer can show that an employee had a willful disregard of the employer's interest, by recurring carelessness or negligence or intentional and substantial disregard, misconduct can be proven. This is a very high burden for employers to meet and requires careful preparation of witnesses and exhibits to prove it.
Although the unemployment office rarely does in-person hearings due to the sheer number of hearings and lack of referees, in certain situations employers can request an in-person hearing, which in some cases may be very beneficial to the employer's case.
For employers who have participated in numerous unemployment hearings, they are not aware that hearings are evidentiary in nature regarding a direct and cross examination of witnesses and introduction of exhibits. The opposing side is not required to notify if legal counsel will be present, so employers can feel ambushed at these hearings when a lawyer for the employee shows up.
According to the 2011 Trust Report issues last year, there were 173,000 unemployment claims filed in Kentucky. Out of the 83,000 of those that were protested, 66% of claimants were denied benefits in the first round. Of the 22,000 cases heard on appeal, 84% of those were appealed by the claimant. The Kentucky Unemployment Insurance office hears approximately 135 hearings per day for a total of almost 22,000 per year.
The Kentucky Unemployment Insurance Trust has been insolvent since January 2009 and had to borrow money from the federal government to pay its claims. In 2011 Kentucky employers paid $443.3 million to Unemployment Insurance contributions but workers received benefits in the amount of $554.6 million resulting in $111.3 million benefits paid above what is received. The maximum weekly benefit for an employee is $415.00 a week. This has been the maximum benefit for several years and will not be raised until the unemployment insurance trust is solvent again.
Workers are currently able to receive a maximum of 53 weeks of benefits. Employers should be advised that in order to qualify for benefits an employee must have worked 10 weeks for a covered employer. However, a week counts if the person only worked one day that week for chargeability purposes.
A recent change made by the Unemployment office to assist employers was to allow employers 15 days to respond to the initial paperwork instead of 10. Employers are now able to get some of the initial paperwork electronically sent via email to eliminate the paper system and hopefully allow for quicker response times. However, the Unemployment office highly recommends that multiple users have access to this email account due to vacations or illnesses. The 15 day deadline is a hard and fast rule and if missed by the employer will result in the employee receiving benefits.
Employees who fraudulently receive benefits can be charged with a Class D felony. Some examples of fraudulently obtaining benefits are employees who fail to report wages earned and still collect unemployment. The state of Kentucky has six fraud investigators whose full time job is to prosecute those fraudulently receiving benefits. Employers are encouraged to report violators.
When an employer loses multiple hearings and benefits are paid it will affect the experience rating, which therefore affects the amount of premiums paid by the employer. Therefore, it is of great benefit to adequately prepare for these hearings and challenge the hearings that are worth challenging in order to win them. However, it is advisable not to challenge benefits in a case where the chance of winning is minimal and it may upset an employee causing the employee to file either an EEOC claim or lawsuit. So a careful analysis must be done to determine if an appeal is worth pursuing.