Are you anxious when faced with an unemployment hearing? Are you not exactly sure how they work? What if you could feel more comfortable before you are in that situation again? We recently held a Mock Unemployment Hearing webinar where our appellate team acted out a hearing that featured an employee who was dismissed for using marijuana on company property. You can access the webinar here. After the main presentation, there was time for a few questions and answers that provided some valuable insight into the hearing process that we wanted to share.
1.Are claimants ever represented by attorneys?
They are allowed to, but In most cases, the claimant shows up on their own. This may put them at a disadvantage. If the employer is using a hearing representative the employer may be more likely to win the case.
2. On average, how long do hearings usually take?
A good rule of thumb is around 45 minutes, but that can vary depending on the case. If there are many witnesses, exhibits, or even video, then the hearing might run longer. At times, the judge may need to end a hearing and the parties would have to return another day.
3. What do we do if our first hand witness is no longer with the company?
This can be common, especially in high turnover industries. It highlights the importance of documentation. Without a first hand witness, the case will rely more on witness statements, pictures, video, or anything else that can be shown to help illustrate facts surrounding the case.
4. How long does it typically take to get the decision back?
This, like many aspects of the unemployment process, varies by state. They are sent out in the mail and we typically see most returned about 2 to 3 weeks after the hearing takes place. The pandemic has obviously slowed some of these processes down, so if the parties have not received a decision in a month to a month in a half, they can reach out to the state to get the status.
5. Do potential exhibits have to be sent to the claimant?
Here is our favorite answer to most things dealing with unemployment - it depends. Most states require you to provide the claimant with the proposed exhibits, but some states want you to send them directly to them or upload them into a portal where all parties can access them. Before any hearing, the parties will get a hearing notice that usually provides all the instructions you need, so be sure to read it carefully.
6. What happens if the appealing party fails to show up for the hearing?
In most cases, if it is a claimant appeal and the claimant doesn’t show, or an employer appeals and the employer doesn’t show, judges will issue what’s called a default or dismissal decision. That means there will be no testimony taken on record, the judge will explain to everyone that the appealing party did not show, and that the previous determination will be affirmed without any testimony. The appealing party will always have the right to request the case be reopened if they give the judge just cause as to why they were unable to attend the hearing.