It’s frustrating. You had a truly terrible employee. Finally, you were able to move them out of the company, and then they file for unemployment, which impacts your unemployment insurance (UI) rating. You fill out the EDD questionnaire to appeal their claim, but it seems like the employee always wins. Is it worth it to attend the EDD hearing? It takes time to attend the hearing and prepare your materials. It’s important to know when to fight it and how to prepare if you decide to win your case.
When should you fight an unemployment claim and when does it not make sense? It is very time consuming to not only attend the hearing, but to prepare your supporting documentation. There is a chance you will not win. The employee is almost always eligible if they lose their job through no fault of their own, such as in a layoff or termination due to work quality or quantity. If this is the case, don’t bother to attend the hearing. You will not win. On the other hand, the employee is usually NOT eligible when they voluntarily quit or accept another job. This is one reason that it is a best practice to get any voluntary resignation in writing. This document will easily make your case in the event of an unemployment dispute. The claim employers most often want to appeal involves gross misconduct. Some examples of gross misconduct include: dishonesty (such as theft, embezzlement or falsification of timecards), intoxication on the job and extreme insubordination. Check the EDD website to see if your issue is considered misconduct. You have a good chance of winning the appeal if you can show solid evidence of gross misconduct.
The EDD hearing is a formal legal proceeding, which takes place in front of a judge. You will be sworn in and then you will testify, along with your former employee and any witnesses either side provides. Later in the process you will have a chance to question the employee and any witnesses. Take notes throughout the process so you know which questions you will ask when it comes your time to ask questions. It’s best to focus on the critical items, what the employee was terminated for, and avoid bringing up every grievance you had with the employee. Don’t get stuck in the weeds.
The best way to improve your chances of winning an appeal of a claim is to be prepared. This means presenting thorough documentation that explains what transpired with your former employee. If you know that you intend to fight any unemployment claim, you should start gathering and organizing documentation before the employee even files. Don’t just provide every document in the employees personnel file. Carefully select the documents, notes, performance documentation, reports, emails, and witnesses that demonstrate what your employee did. Help the judge by painting a picture of what transpired with specific documentation and testimony.
Prepare 3 copies of any document you plan to use as evidence. One copy is for you, one for the judge and one for your former employee. Any written material that you will be providing to the judge must also be given to your former employee to review at the hearing. Prepare a written summary of the key events. This summary should include: the employee’s name, title, hire date, and termination date, a timeline of the course of events, including a history of the critical incident or issues and notes on how you allowed the employee to improve OR how you allowed the employee to respond to any wrongdoing. If you provide complicated reports or company documents, highlight what the material is illustrating. If the documents contain industry or company specific language or jargon spell out their meanings for the judge. Make sure you include copies of any notes or documents, such as verbal warnings, written warnings, performance evaluations, or emails documenting the specific issue that resulted in the termination. If there are pictures or video from security footage that is relevant be sure to provide that as well.
On the day of the hearing make sure you are organized. Bring a copy of the hearing notice. Take note of the address and start time. Plan to arrive early and account for any possible traffic and parking delays. Bring any relevant witnesses. Appropriate witnesses are people who have first-hand knowledge of the specific issues you will be covering in the hearing. This is typically the former employee’s manager and / or any employees who may have witnessed the gross misconduct. It is perfectly acceptable to review testimony with your witnesses before you are called in front of the administrative law judge. You may provide a written statement in lieu of testimony. However, this is not recommended since a written statement is not granted the same weight since it cannot be cross examined. Although you are likely irritated with your former employee, refrain from attacking or smearing their reputation. Be professional and present the facts without editorializing to the judge.
However frustrating and time-consuming it may be to appeal an unemployment claim that you feel is unjustified or unfair, it could be worth it. If you are prepared and have thorough documentation that shows gross misconduct, it will greatly improve your chances of winning an appeal at an EDD hearing. Good luck and let us know if you win!
Laura Henderson is a Human Resources professional with over 20 years experience working with a variety of businesses.