The top 10 ways to win an unemployment compensation hearing

greetings law fans my name is Glenn Gaffney of Gaffney and Gaffney PC in Glendale Heights and my topic is the top 10 ways to win an unemployment compensation hearing unemployment compensation hearings can have real significance to your client at stake could be as much as $15,000 or so for an employee that makes approximately fifty thousand dollars per year lawyers representing employees are limited in their fee awards so you should be aware that pursuant to the Administrative Code provisions under the Act the maximum amount you can charge an employee is either $150 per hour or 15% of what the employee recovers as a result of your representation whichever is greater also be aware that the current climate at the Illinois Department of Employment Security has changed over the years I've been doing these for about 35 years and I must say that I have not seen a climate such as this that's good news for employers because what I'm seeing is that employees are being denied benefits on a much greater rate and for many more reasons than in the past in representing employees therefore in particular it's necessary to be vigilant to be able to present your clients best possible case so let's get into our top 10 tips number 10 understanding the whole process it starts when the employee files a claim and the employee puts down the reason why the employee is no longer working typically the employee would want to stay away from anything that looks like either a voluntary leaving or something that could be is determined to be misconduct after that the local office will conduct interviews over the telephone with both the employer and the employee each of which has an opportunity to explain what occurred at the time of termination and reasons for termination the local office will then make a local office determination and with the local office determination a letter will come out either awarding not awarding benefits depending on what the result is after the local office determination is made either party who is unhappy with the local office determination can file a written appeal a very simple process has simply identify what the appeal issue is and why the that party wants to file an appeal to have a hearing before the referee the parties will then receive a notice in the mail of a hearing before the referee a date and time and the referee will provide his or her telephone number and contact information which then the attorney can get involved in and become an active participant in the process the referee will then conduct a telephone hearing with all the parties on the on the line under oath after that the referee will issue the decision if either side is unhappy with that decision that party can then file a request for review to the board of review and the final process available to either side would be a review by the circuit court that then is the process from A to Z in a nutshell tip number 9 understanding the legal term misconduct so as I said there's two ways that an employee can be denied unemployment compensation benefits based upon what occurred in the work place one is voluntary leaving but usually the the fight in this context is over the term misconduct misconduct is defined by the act at section 602 a which recently was amended affected effective January in 2016 the Act as it now reads has a per se categories in which an employee can be denied unemployment benefits on the basis of misconduct you read through them most of them are fairly obvious as to why they would be construed as misconduct which would include such thing as lying or falsifying records even to get employed alcohol usage in the workplace insubordination and failure to maintain a license required in order to practice in your particular field others then are more defined to be based on the concept of gross negligence which gross negligence is defined under the Act and would include categories such as damaging company property or creating an unsafe work environment based upon gross negligence but when we talk about the term misconduct there's some key features whether they fit that eight per se categories or don't and many times they don't so the key features of misconduct is it has to be willful can't be accidental misconduct is not a failure to perform it has to be obvious and effectively the employee has to know that by this particular conduct the employee is jeopardizing his or her position of employment when it comes to things like attendance and other repeated violations of that nature what the department is looking for is written warnings from the employer putting the employee on fair notice that a continuing line of performance or continuing line of conduct of that nature would result in employment termination it's followed by a particular Act a final act in which the employee knowingly does something deliberately does something which justifies ultimately the employment termination and thereby constitute misconduct tip 8 understanding voluntary leaving typically here we're fighting over a situation as to whether or not there's good cause to leave the employment the department looks at it is either good cause attributable to the employee or cause attributable to the employer the fact pattern can be a number of different scenarios one possible fact pattern is when the employer sits an employee down effectively tells that employee that your employment is over however if you would like to voluntarily resign that would protect your employment record if the employee then voluntarily resigns that's not really voluntary leading because the employee effectively was given a choice the choices where you're fired or resign and the employee resigned in the face of that that's effectively a constructive discharge and that employee should be entitled to unemployment compensation benefits another type of a scenario which is more common is when the employer makes the work environment such that the employee can no longer stand to work there that could be a number of things typically it could relate to the employees income and benefit package salary things of that nature which could be if there's a dramatic or substantial reduction in what the employee is going to get out of his or her job then that would be good cause attributable to the employer not the employee and an employer also would be entitled to benefits if the employer dramatically changes the nature of the shift or the the worksite has the employee doing something that the employee has a reasonable good faith basis why the employee cannot perform that job that may well be a situation where the employee would be entitled to benefits notwithstanding the fact that although given the opportunity to work a particular job in a particular location for a particular rate of pay that based on its totality of circumstances the it was unreasonable to expect that employee to accept all that as his or her employment package thus that employee would not be deemed to have voluntarily resigned and would be entitled to benefits tip 7 client preparation for the hearing after the employee obtains the appeal hearing notice and you file your appearance on behalf of the employee you need to sit the employee down or the employer down as the case may be and go over the factual scenario and make sure that that witness is well prepared for the actual elements of the case that is necessary for a hearing particularly when it comes to a misconduct hearing you want to rehearse the testimony of that employee and effectively want to convince the referee that the employee was terminated for reasons and something other than a liberabit or willful misconduct meanwhile if you're representing the employer of course you want to have your witnesses there to put on the testimony well-prepared based upon specific facts events and occurrences that they had personal knowledge of and that hair same dollars so that the employer can establish to the referees satisfaction that this particular employee clearly engaged in an act of misconduct tip six witness participation for both sides it's important to have the witnesses available and on the phone with the referee my preference is to be in one conference room with all witnesses so that we can present our witnesses smoothly and without interruption an alternative if that's not possible is to make sure you have your witnesses available by telephone when the referee calls so the witness can be available to testify on behalf of either the employer or the employee the witnesses have to be identified in advance and the phone number of the witnesses have to be provided to the referee in advance of the hearing this is probably more important for an employer who often make the mistake of only bringing to the hearing a Human Resources representative or some such other person that will testify based on hearsay that's a great way for the employer to lose the hearing because the referee is going to want to hear from the actual persons involved in any of the last events or occurrences that are at issue whether it's voluntary leaving or misconduct so having your witnesses available ready to testify and prepped in testimony is a key element of winning an unemployment compensation hearing tip 5 presentation of exhibits keep in mind that this is a telephone hearing you won't be handing anything to the referee over the telephone it's significant to get your wit your exhibits lined up in advance they also have to be marked with the docket number and exhibit numbers and submitted to the referee days in advance of the hearing it's also an important rule that the exhibits have to be submitted to the other side in advance of the hearing as well whether it's the employers representative or the employee or the employees representative from an employee's perspective it's important for the employee to obtain his or her personnel file records in advance so that the employee can use some of those exhibits for the hearing from the employers perspective they should have all the exhibits they need regarding any warnings or discipline or exhibits that are or statements from witnesses that can be presented both to the referee and to the other side in advance of the hearing tip for researching cases on point the Illinois Department of Employment Security publishes the Illinois unemployment handbook it's available by simply doing a good word search and any internet a word search engine finding that publication and then going through what is called the digest of adjudicated precedents there's a number of cases on point for just about every topic you can think of or you may encounter in an unemployment compensation hearing whether it's misconduct or voluntary leaving or other areas that might come up at an unemployment hearing so you can find cases both at the department level and cited cases from the circuit courts that our on point for your fad pattern if you look through the digest and you look through the index of the digest you can clearly find two or three cases that are on point it's good to have those cases in front of you because at the end of an unemployment compensation hearing when the referee asks you if you'd like to wrap up you can cite to those cases and I think they would have a good precedent for you regarding your position in the matter tip 3 tips for the hearing before the referee so at the hearing itself the telephonic hearing all the witnesses of course will be sworn under oath everybody will be able to hear what everybody else says the referee will clearly be in control of the hearing and will certainly want to cut to the chase and as the attorney representing the either the employer or the employee you should as well you're going to want to get right - exactly what it was that occurred at the time the employee was terminated and the reason given for the termination you then want to bring on your witnesses that testify from personal knowledge as to what occurred at that time and place and what precipitated the facts leading up to the termination decision in cross-examining witnesses keep to the point regarding either misconduct or voluntary leaving such as what were the explicit warnings or lack thereof preceding this termination what if any harm occurred to the employer as a result of the employees conduct if none and the employee may well win just based on the fact that there really was no harm to the employer also you want to make sure that you provide objections as the case may be to hearsay evidence and the referee will allow hearsay evidence in but will state on the record that the hearsay evidence cannot be used in the final decision-making process at the end of the hearing you'll want to have your brief succinct closing argument supported by the cases that you found in the digest of adjudicated precedent tip 2 appeals to the board of review if either party is dissatisfied with the referees written decision the party can submit a written letter of Appeal to the Board of Review and the instructors to do so are right on the referees decision letter typically on the back page in writing the appeal letter it does not have to be that complicated or lengthy but certainly you want to present an initial argument as to why you believe that the decision of the referee is improper you will then get a notice that there's been an appeal lodged and you'll get an abortive reviewed docket number upon receipt of that the best practice would be to then request by letter as the notice will tell you under I believe section 27 2002 ministry of code under the act you want to request number one the copy of the transcript of proceedings number two all the documents and exhibits that were submitted to the referee and you also want to alert the board of review that upon receipt of that you would like to file a written argument after you've had a chance to review it which is all allowed pursuant to the rules within a certain period of time you will receive the transcript and the exhibits you will then have sufficient time within which to file a written argument now you have the transcript you have the exhibits and you're able to cite the transcript be able to review and cite to the exhibits and present a rational argument supported by the law and the cases of record as to why your client should prevail and why the Board of Review should reverse the decision of the referee tip one appeals to the circuit court after the board review review renders its decision there's one final option and that is to appeal file a a complaint to the circuit within the circuit court of the county in which the employer and the employee resided and worked by doing so you need to submit a standard complaint and summons of administrative review many counties such as DuPage has forms for this purpose make sure you name the Board of Review as well as the other party be it the employer or the employee as parties defendant in the administrative review process now there's no new evidence that could be submitted just like with the Board of Review no new evidence can be submitted but yet you can submit the argument as to why the Board of reviewed decision is inappropriate and should be reversed typically that would be a question of law more than fact because the Board of Review has a goes into the matter with a presumption of validity keep in mind that the Department of Employment Security will retain the services of the Attorney General who will appear on behalf of the Board of Review that attorney will file with the circuit court the entire record including the transcripts so all the documents of the proceedings including the transcript of proceedings will be before the Circuit Court and effectively what will occur is cross-motions for summary judgment or motions for judgment on the pleadings as the case may be with legal argument to the circuit court judge as to why the decision of the board of review is is wrong and why your client should prevail on the matter so that then is our top 10 tips regarding the process and procedure of winning a proceeding before the Illinois Department of Employment Security to learn more about the benefits available to you with the isba employment and labor laws section counsel please go to the ivy is ba website

Channel: ISBAlawyer

Views: 121,549

Keywords: glenn gaffney, unemployment, unemployment compensation hearing, compensation, law, legal, gaffney and gaffney, lawyer, attorney

Id: i7_DVHWuSAU

Length: 18min 32sec (1112 seconds)

Published: Wed May 08 2019