How to Prepare for an Unemployment Hearing: Employers and Claimants

Many people go to an Unemployment Hearing with no idea of what to expect. There are even very skilled attorneys that are ill prepared for them because they have not experience in these special types of proceedings.

This article will discuss the general process of the hearing, the order of events. It will also tell you the basic things that every employer and ever claimant should bring to one of these hearings.

Hopefully, with these things in mind, you will feel and be more prepared for what is about to happen. If you are more prepared, then you will be more able to give your side of the story. This will help the Administrative Law Judge (ALJ) make a better decision.  When everyone is properly prepared, it makes it easier for everyone.

Of course, every hearing is different. Still, there is a certain framework that most Unemployment hearings follow.

The hearing usually proceeds with the following divisions.

• Introduction of the record by the Administrative Law Judge (ALJ).

The ALJ discusses everything that happened before to bring the case to him. He goes over the decisions of the UIA and the protests that were made to those decisions.

• Opening statements (optional) and preliminary matters.

This is when both parties can discuss any concerns that they have. Examples are: there is an error in the records of the Determinations. If there is a party that should be there and is not. Open statement is seldom used in my experience. It is usually only done if someone thinks that the evidence will be confusing and needs clarification of where the evidence will lead. Also, one side may ask for sequestration. That is a big word that means the ALJ will ask one of the witnesses to leave so that he does not hear what the other witness has to say. This only happens when one side has more than one witness that will be testifying about the same set of facts.

• Direct testimony and cross examination of the first party. Depending on what the issue is, it could be the Employer or the Claimant that goes first.

This is where the first party gives their side of the story. Then who ever went first, the other side has the chance to ask any questions about what was just testified. Be aware that the Employer can call the Claimant as its first witness.

• The other party that did not yet testify goes next with cross examination.
• There may be rebuttal testimony by the party that testified first.

Rebuttal testimony is when the first party that has already testified, hears the testimony of the other side. Then they recall their witness to disagree with what the other side said. Example: Claimant testifies they quit because of sexual harassment. Then the Employer gets to give its side of the story. Rebuttal is when the Claimant testifies again to clarify the statements of the Employer.

• Then there may be argument by either side. Certain ALJ’s allow this and others do not.

Argument is when the either side takes the facts that have been presented and uses them to persuade the ALJ to find in their favor. Some ALJ's do not allow arguments. Some ALJ's allow but do not really like them most of the time. Usually, Arguments should be waived unless you do believe you need the clarification.

In general, that is how the hearings go. There are variations on this depending who the ALJ is and how he likes to run their hearings. Some ALJ’s like to ask many or even most of the questions themselves; but in general, the above order is how these hearings go.

The following are the usual questions that every Claimant is asked:

1. Please State your full name for the record.
2. Were you employed by ________________?
3. When did you start working there?
4. What was the last day you actually worked?
5. What was the date of your separation, (the date that you knew you no longer had a job).
6. What was the status of your job between the last day of work and the date of separation? (Suspension, personal or medical leave of absence, etc.)
7. What was your job title at the time of termination? (Hours, full time/part time, permanent/temporary, regular or shifting schedule, rate of pay)
8. Were you fired, laid off, or did you resign?
9. Who told you that you were fired/Who did you tell you were resigning?
10. What was their position with the company?
11. What was the reason given?
12. What was the response?

Not every hearing starts that way for the Claimant, but most do. After question 12, the rest of the direct examination all depends on what actually happened. After that, the questions are different for everyone.

The following are the usual questions that every Employer is asked:

1. Please state your name for the record.
2. Are you employed by _________________
3. What is your position? (Or what was your position at the time?)
4. How long have you held that position?
5. Do you know the Claimant in this case as a former employee of _________?
6. Do you have with you records involving the Claimant’s employment?
7. Are these records kept in the ordinary course of business?
8. Were these records entered into the file at or around the time the events took place?
9. Are these records the kind of records that the Employer regularly keeps in the course of business?
10. Do you have authority to deal with these records should you need to?
11. Do your records indicate the Claimant’s first day of work?
12. What was the last date of actual work?
13. What was the date of separation?
14. What was the status of your job between the last day of work and the date of separation? (Suspension, personal or medical leave of absence, etc.)
15. What was the Claimant's job title at the time of termination? (Hours, full time/part time, permanent/temporary, regular or shifting schedule, rate of pay)
16. Was the Claimant fired, laid off, or did he resign?
17. Who made the decision to terminate the employment?
18. Who told him that he was fired? (Or: Who did he tell he was resigning?)
19. What was their position with the company?
20. What was the reason given for the separation?
21. What was the response?

Of course, this is only the beginning of the testimony. It continues from there and goes into all the specifics.

The first question you need to answer is, "What is the issue involved at the hearing?" It is really easy to get lost in the Unemployment Insurance Agency (UIA) paperwork. I have seen employers that came to a hearing ready prove that they fired the Claimant for a great reason. But because they did not realize that the issue was whether the Claimant was able to work, they were completely unprepared.

How do you find the issue that is involved? The key is the Notice of Hearing. About two/thirds of the way down the page, there is a section that says, "Issues Involved." The top issue is the most important. Most often, it will say "29(1)b: Claimant is disqualified for discharge for misconduct connected with work," or "29(1)a: Claimant is disqualified for voluntary leaving without good cause attributable to the employer."

What ever the top issue listed is, that is where you need to start.

The employer is usually in the business of keeping records regarding employees. So, it is expected that you will have the employee file at the hearing.

• You need to bring the Employee file. Specifically, you need to bring all discipline, any medical documents, and supporting documents for such discipline/medical documents. It may not be admissible, but you should have it.
• You should have two copies (one for the Claimant and one for the ALJ) of any documents that you intend to admit into the record.
• You need to send someone who is authorized to use the file.
• You need to send any witnesses to the wrong doing. The written statements will not prove what happened.
• You need someone there that was part of the decision process who can tell why the Claimant was fired.
• You should have the person there that told the Claimant he was fired or that received the resignation if possible.

For the best possible result, you should produce each of these. You may not have them all, or you may not be able to produce the witnesses. One person may be able to testify about everything above.  But if there are different people that know about each of the things above, you should produce them all if possible. You never know that the one person or record that you do not bring may make the difference between prevailing or not.

    It is better for the Employer if the top issue listed is Voluntary Leaving.  This is because, if the Claimant left his job when he could have continued working, he has to prove that he had a good enough reason to leave.  He has to prove usually:
•    The reason he left was because of a problem either caused by the Employer or under the Employer’s control. 
•    He complained about the problem to the employer.
•    He gave the Employer a chance to fix it.
•    Nothing was done by the Employer to fix it causing the Claimant to leave.

    Now, this is better for the Employer because it puts the burden on the Claimant to show these things.  Whereas, if the issue is Misconduct (firing) the Employer has to prove something before the Claimant will be disqualified.

What should the Employer bring to a Voluntary Leaving Hearing? 
•    The personnel file.
•    A person who has authority to use that file (usually Human Resource or Supervisor)
•    A resignation letter if there is one.
•    You should have two copies (one for the Claimant and one for the ALJ) of any documents that you intend to admit into the record.
•    The person who received the notice of resignation.  This may not always be necessary, but often there is a difference in story between what the employee and what the manager said.
•    Any evidence (either witness or documents) that tend to show that the Employer tried to address the problem that the Claimant had with the Employer. 
   
    Often the entire question is whether the Claimant quit or if the Employer fired him.  You as the employer say, “He walked out and quit.”  And the Claimant says, “No, my other supervisor said I was fired and told me to go home.”
    Because this type of situation happens so often, the ALJ will have the authority to hear the evidence on both sides of it.  He will decide whether the Claimant quit or did you fire him. 

    The Employer has the burden in this situation.  If the Employer wants to prevail, they need to show one of two things:
•    Either the Claimant purposely did something against the best interest of the employer (Misconduct).
•    Or that the Claimant acted carelessly or recklessly in a way that harmed the employer’s interest, and that no reasonable person could have made this kind of mistake (Wanton Negligence).

    In the first issue, you (the Employer) have to show that the Claimant knew or should have known that it was wrong to do something that he did.  It is not enough that he made a mistake that a reasonable person might have made.  It has to be something he knew or should have known was wrong. 
    Obviously, if a Claimant steals, he knew or should have known that he would be fired for it.  If he commits a crime, if he breaks a known rule, if he directly disobeys an instruction of a supervisor. . . These are some examples of traditional misconduct.
    The second issue is called, “Wanton Negligence.”  This is when the person does not intentionally do something wrong, but does do something he should not have.  It has to be more than a mistake.  He had to know that the Employer had a right to expect him to be careful.  Any reasonable person would not have done this.
    An example of Wanton Negligence is when a person knew something might happen to hurt the Employer’s interest, but did not care.  The Employer has a right to expect the Claimant to exercise due diligence.  But the Claimant does not act as a reasonable person would.

    What should we bring to a Misconduct Hearing?
•    You need to bring the Employee file.  Specifically, you need to bring all discipline, any medical documents, and supporting documents for such discipline/medical documents.  It may not all be admissible, but you should have it.
•    You should have two copies (one for the Claimant and one for the ALJ) of any documents that you intend to admit into the record.
•    You need someone there that was part of the decision process who can tell why the Claimant was fired.
•    You need to send someone who is authorized to use the file.
•    You need to send any witnesses to the wrong doing.  Written statements (even if they are discipline) will not necessarily prove what happened.
•    If possible, you should have the person there that told the Claimant he was fired.

    Many Employers send an HR person to the hearing with the file and that is it.  This may have all the discipline that was involved.  While the discipline will be admitted as a business record, those documents do not necessarily prove that the Claimant did what the Employer claims he did. 
    To fix this problem, the Employer needs to make sure that it sends the people who actually witnessed what the Claimant did wrong.   If what the Claimant did wrong was on a document, bring the document.  If there is a video/audio recording of the Claimant doing something wrong, bring the recording.  It may not be enough to just bring the person who says that they saw/heard the recording.  It is always best to bring the actual recording.  Be aware that if you bring that recording, you need to be able to play it using your own equipment at the hearing.  And you should be able to give a copy of the recording to the ALJ.
    I have seen Employers lose that should have won the case because they did not bring the discipline that they say was issued.  Other Employers have lost just because there was no one there that made the decision to fire.  Many employers lose just because they do not bring the people that saw the misconduct.  Others have lost because they brought signed statements about what the Claimant did.  Without a witness that can be cross examined by the Claimant Advocate, it is not enough.  These things are a must to protect the Employer’s interest fully.

Andrew Grosjean is an attorney at law (California) who has worked extensively with Michigan Unemployment Hearings since 2001. He has the pleasure of being able to work with his wife in this area, as she also is an Advocate. He has dealt with all issues in the area and has knowledge of the ALJ's in the South-East area of Michigan. He has done arguments to the MESC Board of Review resulting in the reversing of decisions in favor of unemployed workers.

He also has experience with Immigration Law (including asylum cases). He has also helped people get their Social Security Disability Benefits.

"My goal in this area is to do my best to make sure that people have their situations presented in the best possible light. I believe in justice and there is a Judge that we all must one day answer to. So, we should to do the right thing." Isaiah 56:1 "Thus saith the LORD, Keep ye judgment, and do justice: for my salvation is near to come, and my righteousness to be revealed."

If you are Claimant and need an Advocate for your Michigan Unemployment Hearing, you can have Andrew Grosjean represent you for FREE. The Advocacy Program pays for the service. Just call Andrew at 313-292-6280.

If you are an Employer and need help with Unemployment claims, Andrew Grosjean can still help you.  While he does not represent Employers through the Advocacy Program, Employers still contract on their own with him to represent them at these hearings.  He has unique experience in that he knows how Claimants usually win.  He can help Employers prepare in a way that many advocates/attorneys are not able to.

If you need advice on how to File for Unemployment, Protest a Determination, or Protest a ReDetermination, take a look at this article: How to Get Your Unemployment in Michigan.

This is an article with helpful tips for those that are facing unemployment issues in the state of Michigan. It is simply the personal opinion of myself and should not be construed as specific legal advice. If you are facing a hearing of this type, you should confer with a specialist in this area to analyze your specific situation and give you a proper opinion on how you should pursue your case. While the author has been authorized to represent Claimants through the Advocacy Program, and is a California attorney, Andrew Grosjean is not licensed to practice law in Michigan.

The opinions expressed here are that of the author. They are not authorized by or necessarily representative of the UIA, the Advocacy Program, or anyone else.

If you have any specific Unemployment questions in Michigan, feel free to call Andrew at 313-292-6280. Any correspondence with the author does not constitute legal representation or an attorney/client relationship.