Multiple unemployment insurance
claims mean higher taxes…
but a few minutes on future claims may save big bucks later
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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
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-
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
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
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
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 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 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
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 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.
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
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
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,
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 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
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-
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
from the claimant.
x If the claimant quit because
of a pay cut of 20 percent
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
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,