This article is part two of guidance on unemployment claims. It leads up to the Central Maine Human Resources Association meeting on June 16, 2015, from 7:45 a.m. to 9:30 a.m. at the Ramada Inn in Lewiston, which will feature Elizabeth Wyman, Chief Hearings Officer at the Bureau of Unemployment Compensation.
Tips for defending a claim on your own
In the first step of the claims process, the employer should take the time to present a reasonable summary of the facts to the deputy in the local office regarding the employee’s voluntary quit or termination and its reasons if the employee was fired. Although the deputy is only the first level in the process, many claimants will not bother to appeal if they lose at this stage. The first step is always by just phone. You may, however, fax materials in.
If the party who loses before the deputy appeals to an administrative hearing officer, the case is retried from scratch and no weight is given to the deputy’s decision. If either party wants to be certain that particular witnesses will attend the hearing, they can request the Commission in advance to issue a subpoena. This procedure is not foolproof, however, because the subpoenas are served by certified mail. If the subpoena is not picked up at the Post Office, it will not be effective.
The hearings used to take place in a small room at the local office or some other neutral location. Nowadays most hearings are by phone. The hearing officer will begin the hearing by turning on the tape recorder and providing some preliminary instructions. At this stage of the proceedings, everyone is permitted to be present in the hearing room. After the introductory remarks, all persons who are going to testify except the first witness, the claimant, and the employer’s representative will be asked to wait in another location until called to testify. This is all done so that testimony of early witnesses will not influence later ones. The hearing officer may ask questions at any time. Employers should listen carefully to these questions because they may provide clues as to the issues the hearing officer considers important. Any question asked by the hearing officer is an important one — that should be your mantra.
If the case involves a voluntary quit, the claimant will be asked to present his or her case first. The hearing officer will not treat a voluntary decision to leave as disqualifying if the claimant can show that their work life was made miserable by conditions that the employer knew about but failed to fix. The claimant may also be awarded unemployment benefits if he or she can demonstrate some serious unfairness in the work relationship such as a broken promise to provide certain benefits. Do not assume that all you need to do is show that the employee quit. In addition, testimony about workplace conditions may well relate to conditions relevant in a discrimination claim so make sure you are prepared and consistent.
Once the claimant’s first witness has testified, the employer will be permitted to cross examine. This is often one of the most difficult aspects of the proceeding for a non-lawyer since it involves the use of questions to elicit information from the witness. All too often, the employer, instead of asking questions, will try to make a statement contradicting the claimant’s witness. The hearing officer will then advise the employer that it will have an opportunity later to make a statement, but, at that point in the proceeding, it is limited to cross examination. It IS ok, and advisable, to ask questions in the form of statements and avoid open ended questions that allow the witness to go on and on. For example, “You came to work on Monday but were out Tuesday and Wednesday, right?” “You did not call anyone to let them know you weren’t coming in, did you?” “Your manager called and emailed you but you did not respond, isn’t that correct.” As much as possible, keep the cross examination limited to yes or no answers.
After one side has presented all of its witnesses, the procedure is repeated with the witnesses from the other side. If the employer has documents to present, it is helpful to offer them through a witness who is familiar with them and can testify as to their origin and what their significance is. If the document is merely a statement by a person who is not present, the hearing officer may be reluctant to admit it into evidence because it is “hearsay”. There is a preference for and bias in favor of live testimony. Thus, important testimony should be given in person if possible and not by means of a written statement, even if the statement is given under oath or is notarized. The rules of evidence technically do not apply but the issue will be whether the evidence is the kind typically relied upon by reasonable people. Many times a hearing officer will allow a witness to be called on the phone to be patched into the hearing.
If the claimant has been fired, the employer will go first and will be expected to offer proof that the claimant was guilty of insubordination or other conduct that seriously undermined the employer’s interests. If possible, evidence should be produced that the former employee had previously been guilty of the same misconduct and warned that a repetition could result in firing. The question is whether the employee violated clearly stated rules. Make sure to have proof that the employee was informed of the rules and then warned to follow the rules. The focus will be on the “straw that broke the camel’s back.” If the employee kept violating the same rule over and over but is then fired for something minor and unrelated, maybe because the manager has just had enough, the employer could lose the hearing if the termination decision happened because of that minor incident. Document the communication of the rules; document discussions with the employee; document all warnings; provide those documents by fax to the DOL.
After both sides have presented their witnesses, the party who went first will be given an opportunity for rebuttal. The hearing officer will try to limit the rebuttal evidence to matters that respond to something that the other side presented. Although there are no hard and fast rules, the hearing officer is authorized to exclude new evidence that does not rebut something that has been presented by the opposing side. Make sure to point out how you are responding to something the other side raised.
At the conclusion of the hearing, each side can summarize its position in closing argument. If the hearing officer is feeling pressed for time, he or she may not bring it up, but will probably permit argument if the party requesting it insists. Use your judgment on whether to insist. The hearing officer will mail a written decision to the parties usually within one to three weeks after the hearing.
Appealing an adverse decision by a hearing officer
The losing side can appeal to the Unemployment Insurance Commission itself. Unless a specific request for another hearing is made, however, the Commissioners will simply listen to the tape and decide the case on that basis. Either side can request a copy of the tape and submit a written argument if it chooses.
If the party taking the appeal feels that important evidence was omitted at the hearing, it can request the Commission to hold a new hearing. If the request is granted, the Commission will ordinarily try to limit the parties to presenting evidence that does not repeat what was offered at the previous hearing. There are no clear-cut guidelines for determining what is “new” evidence and what is not.
The hearing procedure before the Commission is similar to that followed by the administrative hearing officer. Those may be in person hearings or by phone. There are three commissioners: one neutral, one management side, and one employee side. The Commission will issue a written decision following the hearing. A delay of a month or more in issuing the decision is not unusual.
A further appeal is available from the decision of the Commission to the Superior Court. This is rarely done and hard to justify from a cost basis.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber is an employment attorney. You can contact us at 784-3200 (telephone). Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.