How to Defend Unemployment Claims

When one of your former employees files for benefits, you'll get an official report form in the mail from the state unemployment agency. Fill it out and return it within the deadline stated on the form! These deadlines are rarely extended, even if you have a good excuse. If you don't respond, or respond too late, the worker will automatically get benefits in most states.

If you are away from work for an extended time, be sure you have authorized someone responsible to check your mail — if no coworker is available, a friend, family member, or even someone from your lawyer's office may agree to perform this service for you. The person should be told to open up any official-looking letters from the IRS, from the state unemployment agency or any other government office, or from any law office.

Just give the facts. Typically, the report will ask how long the employee worked for you, what his or her earnings were, whether the worker quit voluntarily or was dismissed, and what the facts surrounding the termination were. Don't give just a one-word explanation — but don't write a whole novel either! A few sentences should do it.

If you need to fire somebody because of excessive unexcused absences, don't just write "discharged for absenteeism" on the unemployment claim report. Instead, you need to say when the absences occurred, how many there were, and when prior warnings were given. You also need to say something about the final incident that led to dismissal. You might say, "John was absent from work without notice six times within two months. He received oral warnings after the first two absences, and written warnings after the second two. After the fifth absence he was warned in writing that another such absence would lead to being fired. On Feb. 21 he failed to return to work following a scheduled vacation and was dismissed."

Go to the hearing. You should have a presence at any hearings, formal or informal, before the state unemployment insurance officials. This is the only effective way to present your side and to respond to any false or incomplete statements your ex-employee might make. The "burden of proof" is on the employer — that means it's up to you to prove your statements, by testifying or presenting documents. The supervisor who actually witnessed the misconduct or other action that led to the termination should be present to testify; in most cases, that means you.

It's a good idea to have an attorney represent you at any hearing, especially the first time you are involved in an unemployment case. Attorney representation becomes a virtual necessity if you lose at the hearing level and decide to appeal to the court.

If you learn new facts, report them to the state. If you later learn of facts that would disqualify the claimant for benefits (for example, he or she turned down a job offer, went on a long vacation without looking for work, or refused to take the old job back if you offered to rehire the worker), report these facts to the state unemployment agency.

If you lose, file an appeal. If the employee is found eligible for benefits despite your objections, follow up with an appeal to the administrative agency, and (if you lose again) to the courts, unless, of course, your lawyer tells you this would be fruitless in your particular case.

Don't let a possible claim stop you. Even though a successful unemployment claim may raise your tax rates, don't let the fear of a rate increase keep you from firing an employee who is truly dragging your business down. One bad apple can destroy the morale of an entire office.