Protesting every claim for unemployment may be a costly mistake.
For many, a strategic approach to handling unemployment appeals is an overlooked art. There are unnecessary battles within the war in an effort to get even. Fights based largely on principle with a goal of “setting the record straight.” Although cost management control companies handle an increasing number of unemployment claims, the required message to management continues to be muffled. Just as location is prime in the real-estate market, in the land of unemployment appeals, an employer’s reputation is equally king.
When employers are notified that a separated employee has filed for unemployment benefits, they all too often adopt a “win at all cost” mentality. The problem with this approach is that state’s representatives begin recognizing their aggressive pattern and start giving the claimant the benefit of the doubt. In the long run, the employer runs the risk of losing credibility and having to appeal adverse claims they otherwise would not have to.
It is extremely important that employers familiarize themselves with the standards of eligibility of their state. Claims that lack a reasonable likelihood of success should be let go. There are few greater irritants to the appeals office than an employer who routinely protests layoffs and poor performance separations. It is viewed as armature and disrespectful to those reviewing the case file. In California, a laid off employee who is able and available is entitled to benefits if they have been laid off. It does not matter if they have been written up in the past, or if the words “laid off” aren’t used. If the employee is no longer working because there is no work available, they have been “laid off”. Accordingly, they are entitled to benefits. Likewise, an employee who doesn’t sale enough cars for your liking is a poor performer. Absent additional facts, poor performance is not considered misconduct and, you’ve guessed it, the employee is entitled to benefits.
The Story of the Judge with the Angry Face:
More than a few moons ago, I represented a government entity in California at an unemployment appeal hearing. The employer was the appealing party. When the case was assigned to me, I read over the file and immediately called the Human Resources Manager. We first talked about a few odds and ends to break the ice prior to getting to the point of the call. When I felt he was relaxed, I explained that the claimant would be entitled to benefits based on the information I had in the file.
Essentially, the employee was injured on the job and was required to go back to training prior to returning to work. However, at the time the employee recovered, there were no training classes available so, of course, he could not go back to work. He filed for benefits, which were awarded, to cover the time he was not able to work while waiting for the next training class. In effect, the employee was laid off. Why? Because he was able to work and there was no work available until he went back to training.
The manager said, “Let’s just go and see what happens”. He insisted we appeal the initial determination even though there was no reasonable chance of prevailing. I explained that it is never a good idea to adopt an appeal everything mentality and urged him to look at the big picture. No matter how much I tried to convince him to let this one go, he insisted that we fight. So, we fought – well, sort of.
At the hearing, the judge read the file and in an unusual move, asked me why the employer was wasting his time? This of course was off the record. He told me that as a representative who has appeared before him, I should have known better. I didn’t respond. I couldn’t. He was right and I wasn’t going to throw my client under the bus for insisting we just, “… see what happens.” He then just looked at us with this angry, piercing frown that clearly showed disgust. I knew he was very bothered. As my client began to testify, he kept the face and did not take a single note. When a judge doesn’t take a note, it means they do not care about what you are saying. The claimant was present but didn’t have to say much as the facts were not in dispute. The judge later said, with the same face of course, “Normally I would advise parties to expect a written decision within a month, but in this case, you can expect it in a few days.
While walking through the hall, my employer witness, the HR manager, said he was glad to be out of there and couldn’t believe the Judge’s arrogance. I had no choice but to use this as an opportunity to explain, again, the ramifications of not thinking strategically. However; the damage was likely already done. Administrative judges have long memories. The next time that employer testifies before that judge, and they will, chances are, he may not be as receptive to their facts as he otherwise would be. I did not handle many more of their cases, so I can’t say for certain how things went from there.
The moral of this story is that sometimes a step or two back, may get you further than you think. Mechanically protesting every claim may negatively affect your businesses in ways that are not immediately apparent.
R.C. Williams, JD
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- Winning At All Costs: Unemployment Claims - March 26, 2013
