When filling out your Unemployment forms, there are some things you need to keep in mind to protect your rights.
Basic Terms:
• Laid Off: This really only applies when the employer has run out of work for you to do.
• Discharge, Termination, Fired, “Let Go”: All these terms are usually the same thing. This is where the Employer had work for you but chose to end your job.
• Voluntary Leaving, Resignation, Quit: These terms also usually describe one thing. This is when you have chosen to end your employment.
• In-voluntary Leaving: This is when you are forced to leave the job, but it is outside of your control to stay or leave.
• Resignation in lieu of Termination: This sounds like you quit your job. In fact, it is the opposite. This is when the employer is going to fire you. So, instead you quit to avoid having the “fired” mark on your resume. So, for unemployment purposes, this is still a termination because the employer started the separation. This is a good thing.
What is best for you, the Worker?
1. Obviously, it is best to never lose your job.
2. Next best is for unemployment is layoff.
3. Next best is to get fired or quit in lieu of termination.
4. Least beneficial for unemployment is for you to quit.
In each of these situations of losing your job, you can still get unemployment. But as you go down the list, it becomes harder.
Some things to keep in mind when you fill out your forms to get unemployment:
• Be as truthful as you can. If you smudge it or worse lie, it can come back to haunt you. Besides that, lying is just wrong. The last thing you want to do in a hearing is have to explain what looks like a lie on your forms. I have seen this happen too many times.
• On layoffs. If the employer says, “I don’t have anything for you anymore,” he might be laying you off. But they may, in fact, be firing you. Do not say you were laid off when you know there was work for you. If the boss had work, but did not want YOU to do it, that is probably a firing.
• On firings. Some people are afraid they will not get their benefits if they are fired. That is not necessarily true. The unemployed worker does not want to say that he was fired. I have seen people who should have gotten their benefits but lost them because it looked like they lied on their application. The judge is left to think, “If they lied on their application, maybe they are lying in the hearing.”
• On quitting. When you fill out the application, you know what considerations caused you to quit. Understand that in most cases, what was happening in the stresses of your life will not get your benefits. You need to tell the agency what was wrong with your employer. What did your managers, co-workers, or employer do to you that was wrong? This is what you need to focus on in most cases.
How to protest the Determination
When you get your Determination it will obviously be for you or for the employer. Either you or the Employer can protest. But the Unemployment Agency can also decide you do not deserve benefits, even if the employer has not protested you getting them.
So how do you protest a Determination against you?
1. Make sure you are on time. You have to get your protest to them within 30 days of when they set it to you, not when you received it. It also must be to them before the deadline. Being postmarked on time is not good enough. You may want to fax and mail it both.
2. Make sure you include the following information.
a. Date
b. Name
c. Social Security Number
d. Identify the issues you are protesting. If possible, include all the issues involved by number (29(1)(a) or 29(5) etc.).
e. Clearly say “I want to Protest the Determination dated . . .”
f. Signature
g. You may want to add all kinds of other information, but you do not have to include anything else to protest.
3. Often, people have several issues running against them at once. Some people make the mistake of thinking that the issues are all the same or duplicate copies of the same determination. Sometimes, you will receive two determinations that look the same on the same day. You need to make sure that you protest all determinations that you disagree with.
4. You do not have to write your life story in protest. Keep it short and to the point. Telling them how good an employee you were in things unrelated to your firing will not help you. For example, if you were fired for stealing, it does not matter if you were on time to work every day. And the fact that you worked for the employer for a hundred years does not mean that you did not threaten somebody. If you were fired, it usually does not matter if they mistreated you in other ways. Also, unless you are asking for a Waiver of Restitution, your financial hardships do not make a difference. Keep it concise. I have seen people protest the determination in a way so that the examiner did not know it was a protest. Keep it short, direct, and avoid too many details.
5. If you want to convince the Unemployment Examiner to reverse their determination, chances are that you will need to send some kind of paper evidence that proves your point. If you just tell your story, that often is not enough. Include pictures, emails, documents from the employer, doctor notes. If you do not have any of these, just protest so you can tell your story to the Administrative Law Judge (ALJ).
When you are employed and you speak to anyone about your job, you should make a personal record of who you spoke to and what was said and when. The same is true when you file for unemployment. You really should make a record on a calendar or planner or just a note book whenever you speak to someone about your unemployment. Note who you spoke to, when, what was said, and what your reaction was. You never know when such a note could mean the difference between getting and not getting your benefits.
When you protest your determination, keep a copy with the date. Note the method of communication, fax, mail, on-line, in person.
Many people lose because they do not keep a careful personal record. Use a calendar, or note book. You never know when the question of winning will come down to a simple detail of who it was or when it was you spoke to the UIA. It takes a lot of work to document such things, but it is your life, after all. If you make the effort to keep the record, you may never need it. But I have seen too many people that have lost what they were legally entitled to because they did not jot down a simple note.
Finally, you can hurt yourself if you give too much information in your protest. Too much information becomes confusing. It can give the other side ammunition to twist around your words and mix you up.
Protesting the Redetermination
For Protesting the Redetermination, refer to the guidelines above for protesting the Determination as well as those below.
Often I find that the examiners simply reaffirm the Determination unless there are some kinds of documents submitted. But these documents need to be something other than your story. People pour their soul into retelling the same story over and over. You may not want to go through that grueling process again. I have seen the UIA reverse the Determination or the Redetermination. Most of the time, it is only because some documents other than just the story are sent in. These documents could be pictures, business records, emails, etc.
If you do not have anything except your story, you might consider saving yourself some hassle. What I mean is, do not torture yourself trying to dredge out every conceivable fact or nuance of the situation. Consider just writing a protest letter that says, “I disagree with the Determination that said I was disqualified for . . . I want to protest.” Short, sweet, and simple.
In my experience, unless you have one of those kinds of evidence mentioned above, the UIA is not going to reverse the decision in your favor anyways. Save yourself the hassle. When you get to the hearing that is when you get to lay out your story for a real person.
Once you have a Determination and then the Redetermination, if either side protests, you are going to a hearing. This is what you have been waiting, longing, yearning for. It is the chance to tell your story face to face with a real person. Just remember, you do not have to write your auto-biography to get here. Just protest the Determination and the Redetermination. Then, you get your hearing.
A word on the Burden of Proof.
When you are fired, you do not have to prove anything. For the Unemployment purposes, the employer has the burden to prove you did something wrong for you to be denied your benefits. So, when you are filling out your applications and protest, just reiterate that the termination was the Employer’s choice. It was unfair to you. You should not have been fired for this event because. . .
When you resign, you do have to prove that either you quit because the Employer did something that would force a reasonable person to quit, or you did not have a choice. So, do not tell the UIA about your problems that you were facing at home and in your family.
You need to show:
• The employer did something wrong. There was something wrong happening that was under the employer’s control. This needs to be something that would cause a reasonable person to quit.
• You complained to a supervisor about the problem. More than once is a good idea.
• You gave them a chance to fix it.
• It was still not fixed.
So as you are filling out your applications and protest or even if you are going to the hearing this is what you want to try to prove.
One more word on the Burden of Proof:
This is not a criminal trial. The level of proof needed to carry the burden is not “beyond a reasonable doubt.” The level is by the “preponderance of evidence.” If we could put this in math terms, somebody has to convince the ALJ by 51% of the proof. If the judge looks at the evidence for both sides and equally believes both sides, then the burden of proof has not been carried.
Let me put this in practical terms. If you were fired, the Employer has the burden of proof. If at the end of the hearing, the judge finds both sides equal in their evidence. You should win because the Employer did not carry its burden to prove you did something wrong. They need to tip the scale to their side to win.
If you quit, and at the end of the hearing, the ALJ finds the evidence equal between both sides, you will lose. This is because you have not tipped the scales to make the judge believe you. You have not carried the burden of proof.
You can tip the burden of proof in your favor by having another witness to the event, by documents that agree with your side of the story, pictures, or emails, etc.
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