It can be overwhelming to learn that not only has your former employer terminated you, but now, also opposes your claim for unemployment benefits. Now you have to defend your rights in a conference call with an Employment Commission Deputy and a representative from your former employer. While it is impossible to fully eliminate the stress associated with your entitlement to necessary benefits, you can feel more confident by understanding the process and properly preparing for the Deputy’s call.
This post seeks to share some of The Spiggle Law Firm’s experience with Unemployment Insurance claims in order to reduce your stress and increase your chance of defeating your former employer. Review the following five tips for winning your claim.
- Attempt to determine your former employer’s justification for opposing your claim.
Two common justifications for opposing unemployment benefits are that the employee was fired for “misconduct” or that the employee voluntarily quit. If your employer alleges misconduct, the first step to preparing your opposition is to consider just why the employer terminated you. What can they allege you did wrong to justify your termination? As you’ll see below, misconduct can be tough for employers to prove.
A second common justification for opposing unemployment benefits in that the employee left the job voluntarily. If you quit, you are only entitled to unemployment benefits if you can prove that your employer made workplace conditions so intolerable that you had no reasonable alternative but to quit.
Once you determine what your employer is likely to say at the hearing, you can begin preparing to rebut their argument.
- Understand the legal definition of “misconduct.”
The Virginia Supreme Court’s definition of “misconduct” is narrower than the word’s common use. In Virginia, an employee is guilty of misconduct connected with her work sufficient to disqualify her from receiving unemployment benefits “when she deliberately violates a company rule reasonably designed to protect the legitimate business interests of her employer, or when his acts or omissions are of such a nature or so recurring as to manifest a willful disregard of those interests and the duties and obligation he owes his employer.”
So, to prevent you from getting unemployment benefits, your employer must prove that you:
(i) intended to violate a reasonable rule;
(ii) did (or did not do) something so obviously wrong that it is obvious you do not care about your obligations to your employer; or
(iii) repeatedly did (or did not do) something wrong so often that it is obvious that you do not care about the obligations of your employment.
In addition to proving one of these three types of violations, your employer must prove that no mitigating circumstances explain your action.
According to the deputy’s Guide for Effective Unemployment Insurance Adjudication, “Evidence of mitigation may appear in many forms which, singly or in combination, to some degree explain or justify the employee’s conduct. Various factors to be considered may include: the importance of the business interest at risk; the nature and purpose of the rule; prior enforcement of the rule; good cause to justify the violation; and consistency with other rules. Therefore, in order to constitute misconduct, the total circumstances must be sufficient to find a deliberate act of the employee which disregards the employer’s business interest.”
Perhaps obviously, your defense depends on your employer’s allegations. If your employer alleges that you intentionally violated a reasonable rule, you can argue that you did not violate the rule, or at least did not do it intentionally. Alternatively, you can argue that the rule is not reasonably designed to protect your employer’s interest.
If your employer alleges that your actions were so egregious or repeated that it is apparent that you do not care to protect your employer’s interest, you must explain how your actions were justified or not as detrimental as your employer claims. For example, an employee who repeatedly violated minor rules with his supervisor’s approval may have not engaged in misconduct because they reasonably believed that their behavior was condoned. Accidentally destroying a company computer or tool may have been a catastrophic result, but if it was truly accidental, your conduct was probably not sufficiently outside the norms of acceptable behavior to constitute misconduct.
- Understand the employer’s “burden of proof” to show misconduct.
The burden of proof is the expression that lawyers and judges have developed to encompass just how certainly something must be proved and who is responsible for proving it.
If you’ve watched network television in the past 25 years, you know that prosecutors must prove crimes beyond a reasonable doubt.
In an unemployment hearing, your employer bears the burden of proving misconduct by the preponderance of the evidence, meaning that they have to put forth evidence that shows that it is more likely than not that your activity fits the legal definition of misconduct. If your employer puts forth sufficient evidence of such misconduct, the burden switches to you (by the preponderance of the evidence) to prove circumstances that mitigate, or explain and justify why your behavior did not disregard your employer’s interests.
The only people truly interested in the theories of the burden or proof are law professors – what’s important is how to apply them. For unemployment hearings, you should consider how much information to reveal based on the burden or proof. It’s important to note that although the employer bears the burden of proof, the deputy can find against you based on your own statement.
For example, imagine that your employer does not tell you why they terminated you, but opposes your unemployment insurance claim for misconduct. If they choose not to participate in the call, you do not have to tell the Deputy every mistake you made during your 5 years at work.
Instead, you can truthfully tell them that you were not accused of any misconduct. Your employer should lose because they cannot meet their burden. Conversely, if your employer explains misconduct to the Deputy, you must state why that activity was not misconduct or you’ll lose– now you bear the burden.
Because of the importance of the burden of proof, your game plan for an unemployment hearing must be flexible. If your employer does not put forth evidence explaining your misconduct, you do not want to take the deputy through your 10 justifications for your behavior.
Instead, develop a plan that allows you to respond to the allegations your employer makes and to answer obvious questions that the deputy will have. In addition to these basic responses, your plan should contain detailed explanations for more detailed allegations – if your employer lays out a detailed argument, you should respond with a detailed rebuttal. If your employer does not show up or puts forth someone with an inadequate understanding of your termination, you may want to keep your argument simple.
- Gather and submit relevant evidence.
Depending on the facts of your termination, you may want to gather relevant information and submit it to the deputy via the fax number provided in the letter notifying you that your benefits are contested. Again, the decision about what and how much information to provide is informed by the relevant burden of proof. You don’t want to provide evidence that can be used against you in the event your employer does not put forth any or much evidence. Often employers provide termination letters or emails explaining that you are atwill and therefore the company does not need to justify your termination. Other times, employers state that employees are being terminated for poor performance. Because this does not meet the legal definition of misconduct, such emails are often strong evidence that you are entitled to benefits.
- Develop talking points.
Beyond basic questions, expect the Deputy to ask why you were terminated. As with anything, preparing your answer beforehand will allow you to moreclearly explain what happened. While it is not necessary or advisable to practice a speech, developing a timeline of events and your explanations for your actions is key.
In many of our cases, employers terminated our client because they lost out in the game of office politics or because a supervisor had a personality conflict with our client. To justify the termination, supervisors sometimes claim performance issues or place employees on subjective “Performance Improvement Plans” designed for the employee to fail. In explaining office politics or a personality conflict to a third party, it is very easy to ramble and explain too much.
To combat this, pair factual events with simple explanations of the underlying event. For example, imagine that Steve, a former peer, disliked you for years and then placed you on a performance plan as soon as she was promoted to manager. There’s no need to explain that Steve disliked you because on seven occasions you gave him nasty looks after he took more than his fair share of cookies someone brought into the break room between 2008 and 2013. Instead, it should be sufficient to explain that Steve was a former peer, that he has always disliked you, and that when he was promoted, he put you on a performance plan without justification. Only go into greater detail when the Deputy asks that you explain further.
If you only take away one thing from these tips, it should be that preparation is key. The more you plan for what your employer may claim and think of intelligent responses, the better you will sound and the more comfortable you will be in the fifteen minute call. Winning unemployment benefits is not a cureall for losing your job, but it can be the first step to restarting your career. Best of luck!