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Protesting an Unemployment Claim Notice

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Protesting an Unemployment Claim Notice Powered By Docstoc
					Multiple unemployment insurance
claims mean higher taxes…
but a few minutes on future claims may save big bucks later




                   Dear E
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Protesting an Unemployment Claim Notice
x Do not miss a protest or     x Be as specific and fact-          claims or lawsuits.            delivery to any TWC
  appeal deadline. A late        oriented as possible.             Employers who want to          office. Recommended:
  protest means the              Your protest can help             defend against UI claims       Mail a copy by certified
  employer forfeits appeal       the claim examiner                and other claims and           mail, return receipt
  rights, including the          determine what ques-              lawsuits should take care      requested, and fax a
  right to protest benefits      tions to ask the claimant         how and under what             copy to any TWC office.
  or chargebacks to the          during the claim investi-         circumstances they reply.
  employer’s account.            gation. You can attach                                        x Respond to calls from
                                 additional sheets on          x Find out about the              the claims examiner. A
x What if a claim notice         your letterhead if              claim. Call the local           call from a claims
  arrives when I am away         needed. Be careful to           office, identify yourself       examiner indicates the
  from the office for an         include only what you           as the employer in the          examiner thinks there
  extended time? If you          can prove with either           case and ask for copies         may be a good reason to
  are going to be unavail-       eyewitnesses or credible        or printouts of the             disqualify the claimant
  able when a claim notice       documentation.                  statements of fact the          and that evidence from
  might arrive, designate a                                      claimant has made. This         your company can finish
  trusted person to check      x When protesting a claim,        kind of documentation           the case. Put the exam-
  your mail for you and          document your case. If          can be extremely                iner in touch with your
  file a quick response that     you fired the claimant          valuable in preparing           firsthand witnesses, the
  will preserve your             for a policy or warnings        your claim protest or           ones who have personal
  appeal rights.                 violation, attendance           appeal, or in preparing         knowledge of the
                                 problems, or customer           for an Appeals Tribunal         situation that preceded
x What if you do not re-         complaints, submit              hearing. If the claimant        the claimant’s discharge
  cognize the name of the        copies of the policy,           changes his or her story        or resignation.
  claimant? Search all of        attendance records,             at the appeal hearing, let
  your records thoroughly,       warnings or complaints.         the hearing officer know      x Follow up. If you do not
  ask others within your                                         the specifics.                  get a ruling within two
  company, or call TWC         x Be consistent with your                                         weeks of filing your
  for help. Never delay          explanations! Explain         x Make sure that TWC has          protest, call your
  your response just be-         the situation correctly         your correct address. If        nearest TWC office or
  cause you cannot locate        the first time. If you give     the address is incorrect,       local workforce develop-
  records. If nothing else,      one account on the              note the correct address.       ment board workforce
  respond timely with,           protest and something           If you want subsequent          center and ask them to
  “We are unable to locate       else at the hearing,            mailings to go to a part-       check the computer. Be
  records on this claim-         conflicting statements          icular address, note that       prepared to give the
  ant, but we wish to            may lose the case for you.      in your protest. Failure        claimant’s name and
  preserve our protest                                           to let TWC know of an           social security number.
  rights. More informa-        x Consider other types of         address problem will
  tion will follow later.”       claims or lawsuits when         work against you if you
                                 responding to a claim.          miss a hearing or miss an
x Take prompt action if a        Many plaintiffs’ lawyers        appeal deadline because
  protest or appeal              use UI claims as a              you did not receive
  deadline is near. Simply       strategy to determine           notice or ruling.
  mail, fax, or hand-            how good their clients’
  deliver a quick written        cases are. They may use       x How to file the protest:
  response stating, “We          evidence discovered             As long as you protest in



                                                                                                xxxx
  protest. More informa-         during the claim and            writing, you may file by
  tion will follow later.”       appeal process in other         mail, by fax or by hand-
x
x
x
x
x
x
x
x
x
x
            Appealing the Initial Determination
     x          Appeal on time and in writing. You have only        your witnesses and find out what they know. x      You must fully document what you are trying
                14 calendar days from the date TWC mailed           Assemble your documentation. Outline your          to show. If you fired the claimant for a policy
                the decision to you to file. If you want a          presentation. Practice presenting the case.        or warnings violation, attendance problems
                hearing sooner, appeal immediately. If you          Decide who will be the primary representa-         or customer complaints, you should submit
                want as much time as possible to prepare for        tive during the hearing. Decide what               copies of the policy, attendance records,
                the hearing, wait until the 14th day. Try to        questions you will ask the claimant during         warnings or complaints.
                appeal within 10 days. Your appeal can be as        cross-examination.
                simple as, “We disagree. We would like an                                                        x     Follow the instructions on the hearing notice
                appeal hearing to discuss the matter.” Save x       If you do not get a notice of hearing within       exactly regarding evidence. Send copies of
                your energy and preparation for the appeal          four weeks of filing your appeal, call any         any documents you wish to enter into the
                hearing.                                            TWC office and check on the appeal status.         record to both the claimant and the hearing
                                                                    Do not let up until you get a clear answer!        officer prior to the hearing. If you fail to do
                If you file a late appeal, the Appeals Tribunal                                                        that, you run the risk of being unable to use
                will have no choice but to dismiss it. If you   x   If you cannot participate in the hearing, call     such documents on your behalf. Send the
                file late due to late receipt or non-receipt of     in and let the hearing officer know. Docu-         copies to the claimant by certified mail,
                the initial determination, or because of            ment the call and make sure the hearing            return receipt requested.
                misinformation from a TWC representative,           officer or receptionist makes a record of your
                highlight that fact in the first paragraph of       call. If you have a good reason for missing    x   Call in on time for the appeal hearing. Follow
                your appeal. That can get you a hearing on          the hearing, simply file a timely written          the instructions exactly. Note that you have
                the timeliness problem, where you can prove         appeal. State the problem. TWC will                to make the first call. State that you are
                the receipt or misinformation problem.              schedule a new hearing, where you can              calling in for a particular hearing, and make
                                                                    show you had good cause for missing the            sure the person answering the phone takes
     x          Make a copy of your appeal and carefully            first hearing.                                     your phone number correctly. Get that
                note when you sent it. If you send it by                                                               person’s name and record the time.
                certified mail, request a return receipt.      x    Good cause to miss a hearing includes
                Whether you mail, fax or special deliver it,        business emergencies; traffic accidents;       x   Have all your witnesses ready. Tell your
                keep receipt documentation.                         illness of a major witness; and a witness          company receptionist to watch for the
                                                                    being out of town and unable to call from a        hearing officer’s return call and to give that
     x          Use the time between your appeal and the            remote location, on a prearranged business         call priority. If the hearing officer fails to call
                appeal hearing to get copies of the                 trip,or on a prearranged vacation. Calling the     around the time the hearing is due, call the
                claimant’s statements to TWC. This will help        hearing officer to notify them you will not be     toll-free number on the hearing notice again
                you know how to rebut the claimant’s                able to participate will help you prove good       to be sure they know you are still waiting.
                contentions. Research the case. Line up             cause for missing the first hearing.               Document that call as well.




  xin the Appeal Hearing
                  x                                                                  x
Participating




                       Be prepared for the unexpected. If the claimant says                       You can get time to prepare an appeal for the Commis-
                       something unexpected, get an appropriate witness to a                      sion by waiting until the 14th day to file. If you think 14



  x
                       telephone. If the witness is not at the office that day, tell              days is too short for a good appeal, simply state, “We
                       the hearing officer how they might contact the witness. If                 disagree. More information will follow later.” Then take
                       the problem is an unexpected need for certain documents,                   an additional week or two to research and write your
                       ask the hearing officer and ask for a “continuance” so you                 appeal. Commission appeals take four to six weeks to
                       can send copies to the claimant and the hearing officer. If                process, so a week or two after filing should not be too


  x
                       the continuance is denied, register your objection so it will              late to submit additional comments.
                       be on the record for your appeal to the Commission.
                       Explain why you think the evidence is important enough x                   At the appeal hearing, present testimony from firsthand
                       to continue the hearing on another date.                                   witnesses. Firsthand testimony is by far the strongest
                                                                                                  evidence. Affidavits or secondhand testimony are not


  x
                  x    Let the hearing officer know if the claimant gives                         worth much in the face of a credible claimant’s denials.
                       conflicting or wrong information. In addition to bringing                  Hearing procedures allow witnesses to participate by
                       it up at the hearing, mention it in your appeal letter to                  phone, which should make testimony from even the
                       the Commission.                                                            busiest witnesses more practical.



  x
                  x    Your demeanor during the hearing is important. In                    x     If there are criminal charges pending, let the hearing
                       general, stay calm and present an organized case.                          officer know that in your testimony.
  x APPEALING TO THE COMMISSION
           x Appeal on time! A late appeal must be dismissed. If you are appealing late due to late receipt or non-receipt of
             the Appeals Tribunal decision, or due to misinformation from a TWC representative, highlight that fact in the first


  x
             paragraph of your appeal to the Commission. That gets a hearing on the timeliness problem at which you can prove
             the receipt or misinformation problem.
           x Be brief and specific. Help the Commissioners understand your case by highlighting your specific points of
             disagreement with the hearing officer’s ruling. An item-by-item outline is best.


  x
           x Bring up new evidence. If after the hearing you discover new evidence, mention it in your appeal to the
             Commission. You might just get a rehearing!
           x If criminal charges are pending against the claimant, mention that in your appeal to the Commission and ask
             the case be held pending trial. Let the Commission know of the outcome.


  x
                 Responding to the claim and handling appeals with the above cautions in mind will decrease your chances of losing an otherwise winnable claim and help
                 you protect your company from unwarranted chargebacks. If you need more assistance, please check the employers section on TWC’s World Wide Web site
                 at http://twcdirect.twc.state.tx.us/employer.htm.




  x Special Things You Need to Know About the Law of Unemployment Claims
             “Inability” is not misconduct. Neither is “incompetence.” Do not use those terms in responding to a claim or
             testifying at an appeal unless the claimant truly had no ability to do the job. Instead, show how the claimant



  x
             failed to do the best he or she could.

           x Personal illness is not                x If possible, point out                 x If a claimant offered two                  such as an increase in
             misconduct. Tending to the               that before discharge,                   weeks’ notice of resigna-                  company benefits,
             illness of one’s minor                   you confronted the                       tion, and you accepted the                 decrease in commute,



  x
             children is not misconduct.              claimant with the reason                 notice early, the work                     transfer to a manage-
             Failure to give proper                   for discharge and gave                   separation remained a                      ment track, etc.
             notice of an absence can be              them a chance to explain                 resignation. Just make
             considered misconduct.                   their side of the story.                 sure to tell the employee               x If the claimant quits
                                                      If you told the claimant                 something like, “We’re                    and alleges you violated


  x
           x You will need to show how                an incorrect reason for                  accepting your notice                     wage and hour laws, be
             the claimant, before                     discharge, be prepared                   early,” or “You can make                  prepared to offer
             discharge, either knew or                to explain how you did                   today your last day,”                     evidence about the pay
             should have known their                  so to avoid anticipated                  instead of, “We’re termi-                 agreement, the hours
             job was in jeopardy. Show                violence or defamation                   nating you early.”                        worked and the amount


  x
             evidence of written or                   charges, or to spare                                                               of pay.
             verbal final warnings or of              the claimant’s feelings.               x If the claimant quit because
             policies warning of dismissal                                                     of alleged problems with
             for certain violations.                x If the claimant quit, be                 working conditions, rebut
                                                      prepared to demonstrate                  the allegations one by one.


  x        x Show the claimant was not
             singled out for discharge.

           x Show the discharge occurred
                                                      how a reasonable employee
                                                      would not have resigned
                                                      under the same circum-
                                                      stances.
                                                                                               If the claimant failed to
                                                                                               complain to anyone in
                                                                                               authority, point that out.
                                                                                               Show how you investigated
             when it did due to a specific                                                     and dealt with complaints


  x          act of misconduct that hap-
             pened close to the discharge.
             Too much time between the
             final incident and discharge
                                                    x Try to get the departing
                                                      employee to explain his
                                                      or her reasons for leaving
                                                      in writing.
                                                                                               from the claimant.

                                                                                  x If the claimant quit because
                                                                                    of a pay cut of 20 percent



  x
             can work against you.                                                  or more, there is a good
                                                    x If it is clear the claimant   chance they will get                                Equal Opportunity Employer/Programs. Auxiliary
                                                                                                                                        aids and services are available, on request, to
           x If you discharged the                    quit without any pressure     benefits. Benefits may be                           individuals with disabilities. Copies of this publi-
             claimant, show that you                  to resign, do not waste       denied if you show that at                          cation have been distributed in compliance with
                                                                                                                                        the State Depository Law, and are available for
             followed whatever progres-               time talking about miscon-    the same time, the job was                          public use through the Texas State Publications




  x
             sive disciplinary policy you             duct or poor work perfor-     favorably changed to                                Depository Program at the Texas State Library
                                                                                                                                        and other state depository libraries.
             have in your company.                    mance issues.                 become easier or better,


TWC-11A(0198)

				
DOCUMENT INFO
Description: If you are getting unexpected more number of unemployment claim notices, here is a way to handle thie situation.