Steps for Most Non-Monetary Unemployment Claims

Transcription

1 Steps for Most Non-Monetary Unemployment Claims 1. The employee (Claimant) is separated from the Employer, either by quitting or being discharged 2. If the Claimant files for benefits, a Notice of Application is sent in most cases to the Claimant s last employer of 15 days or more 3. The employer has ten calendar days to send in a protest to the application for benefits 4. In the course of evaluating whether benefits are allowed, the Commission will review the information provided by both parties. They may also call them to get clarification and/or additional information. 5. The Commission will then issue an Initial Determination to either allow or deny benefits. 6. The parties then have ten calendar days to appeal this Initial Determination. 7. If an appeal is filed, a hearing will be set before the Appeal Tribunal to hear the case on appeal. 8. The Hearing is held under the Rules of the Employment Security and the Administrative Procedures Acts, which are less formal than Rules of Civil Procedure. 9. At hearing each party is allowed to be represented (by an attorney or otherwise). In the hearing they will have the opportunity to offer testimony and evidence. Additionally, each party will have the right to cross-examine opposing witnesses. 10. A Decision will then be issued within days after the close of the hearing. The decision can either Affirm, Reverse or Modify the Initial Determination. 11. The parties will then have ten calendar days to appeal the Decision to the Board of Review. SHRM Presentation February 15, 2017 Page 1

2 Department of Labor Guidance on Appeal Hearings Appeal hearings must be simple, speedy, and inexpensive. This is the foundation for ensuring that appeal and hearing procedures are sound and practical, as well as fair, to claimants and to other interested parties. Simplicity in hearings assures that parties may know and understand their rights, as overly formal and technical procedures place undue burdens on parties. Speed in conducting and disposing of hearings helps to assure the prompt payment of benefits when due. Inexpensive hearings means no individual will be deprived of fundamental rights merely because s/he cannot afford representation or to pay for other expenses in the pursuit of these rights. Inexpensive also means that the state only expends the amounts necessary to properly and efficiently dispose of its appellate workload. SHRM Presentation February 15, 2017 Page 2

3 Tips to Avoid Losing Your Unemployment Appeal Take the time to prevail in the Initial Determination! 1. File Your Appeal on Time 2. If your appeal is filed late, be prepared to state the reasons at hearing 3. Prepare the case before the hearing 4. Be prepared on all the issues 5. If the other side filed the appeal, prepare your case anyway 6. Read the Notice of Hearing 7. If you have a problem with the date or time of the hearing, promptly request a new one, but be prepared to demonstrate Good Cause for the need to reschedule 8. Make an early request to subpoena witnesses whose attendance you cannot control 9. Do not subpoena witness(es) to testify against you 10. Discuss your witness testimony before the hearing 11. Show up on time! 12. Bring the eye witness to the hearing!!!!! 13. Submit key documents to the Appeal Tribunal at least 5 days prior to the hearing 14. Summarize voluminous written material 15. Explain technical terms, occupational slang, and strange customs of the trade. 16. On cross-examination, do not simply ask the opposing witness to repeat testimony 17. Resist the urge to fight every point your opponent makes stick to the reasons for the separation and don t get sidetracked 18. Do not assume the Hearing Officer knows every law ever enacted if there is a statute, etc., that applies to your case, submit it for hearing 19. Do not rely solely on another hearing officer s decision RARELY are two cases identical! SHRM Presentation February 15, 2017 Page 3

4 Summary Take the necessary steps to win the initial determination. 1. Read the information provided in the processing of the claim 2. Bring the files to hearing, both Personnel and what you have sent the OESC: know the dates of employment; if warnings, when and for what; if the Claimant discharged for violation of a policy, acknowledgment Claimant was aware of it 3. Bring the First Hand Witness(es) to the hearing: statements by people not at hearing, if entered, will be given little or no weight, particularly if the claimant disagrees with the statement s contents. A first hand witness is one who was present, and saw or heard something. 4. Bring specifics: if Claimant is discharged for attendance, what were the pertinent dates; if for poor performance, what are the specifics that demonstrate this; if warned, when and what did it include SHRM Presentation February 15, 2017 Page 4

5 A couple of other items of potential interest: Additional Tidbits OESC Precedent Manual: The Appeal Tribunal has historically maintained a collection of their decisions that have been reviewed and ruled upon by the Board of Review and the Courts, which hearing officers can rely upon as precedent in making their decisions in applicable cases. This summary is called the Precedent Manual, and is made available to both external parties and to OESC employees for guidance. The previous edition of the Precedent Manual was generated in 2007 in book form, and was made available on OESC s website. The new Precedent Manual can be found at Certain separations allow claimants being separated from rated employers to receive benefits while at the same time the employer can be relieved of those charges. A couple of the more common situations where this can happen are: 1. The claimant was discharged by an employer for unsatisfactory performance during an initial employment probationary period. Probationary period means a period of time set forth in an established probationary plan which applies to all employees or a specific group of employees and does not exceed ninety (90) calendar days from the first day a new employee begins work. The employee must be informed of the probationary period within the first seven (7) work days. (Section 3-106G5) 2. The claimant became separated from work for compelling family circumstances (Sections and 3-106G7). Some examples of what represents such circumstances are: A. the claimant was separated from employment with the employer because of the illness or disability of the claimant and, based on available information, the Oklahoma Employment Security Commission finds that it was medically necessary for the claimant to stop working or change occupations, B. the claimant was separated from work due to the illness or disability of an immediate family member, C. if the spouse of the claimant was transferred or obtained employment in another city or state, and the family is required to move to the location of that job that is outside of commuting distance from the prior employment of the claimant, and the claimant separates from employment in order to move to the new employment location of the spouse, SHRM Presentation February 15, 2017 Page 5

6 D. if the claimant separated from employment due to domestic violence or abuse, verified by any reasonable evidence, which causes the individual to reasonably believe that the individual s continued employment would jeopardize the safety of the individual or of any member of the individual s immediate family, or E. if the claimant separated from employment to move with the claimant s spouse to a new location, and if the spouse of the claimant: (1) was a member of the U.S. Military, the U.S. Military Reserve, or the National Guard, (2) was on active duty within ninety (90) days of the date of discharge, (3) has a service-connected disability, (4) was discharged under honorable conditions from the military service, and (5) takes up residence at a location more than fifty (50) miles away from the claimant s former employer for the purpose of reentering civilian life. SHRM Presentation February 15, 2017 Page 6