WI Employee Rights Lawyers, Wages, Sexual Harassment, H1B

If you are a Wisconsin employee seeking unemployment benefits, you may wish to consider the information and tips below.  (Please note the following information is for Wisconsin employees only, and is not legal advice; if you want legal advice, you should contact an attorney about your specific circumstances).

You can click here to learn about WI unemployment legal services of the blog’s author, Employee Rights Attorney Michael Brown of Peterson, Berk & Cross.

The information below is intended to supplement information from the State of Wisconsin’s Department of Workforce Development (DWD), the agency that administers unemployment.  You should review DWD’s website information, “”How To Use Unemployment Insurance Services,” “For Workers,”starting here.  DWD also has a web-based “Handbook,” with detailed information for employee/claimants, here.  You can also read DWD’s FAQs here.

Below are additional tips for employees about the unemployment process.

A. Are You Eligible for Unemployment Insurance?

If you are thinking of filing for unemployment insurance (UI) benefits, the first question you may ask is, “Am I eligible?”  In my view, you should not assumeyou are, or are not, eligible.  You can apply for UI regardless, and have nothing to lose but your time.

As a very general matter, most employees who were terminated (fired or laid off) from their jobs are eligible for benefits.  Also as a general matter, most employees who quit their jobs are not eligible for unemployment benefits.

However, there are several exceptions to those general rules.  In my observation, the most common reasons for unemployment being denied are (1) Misconduct: that is, the employer claimed the worker was fired for “misconduct” and DWD agreed; (2) Quit: DWD found that the worker quit, and did not meet any exceptions to the quit-ineligibility rule; or (3) Medical Inability to Work: DWD found the worker was medically-unable to work.  There are also several additional, less common reasons that DWD may deny UI to an employee.

I mention the general eligibility issues so you get an advance idea of what obstacles or issues you may face.  Again, however, you should not assume that you’re ineligible for unemployment, and it doesn’t hurt to apply.

B. Filing the Application.

DWD describes in step-by-step detail, here, how to apply for benefits.  It is important you review that information carefully, and it will not be repeated here.  As you will see, you can apply for UI by phone or via internet.

During the initial application process, you will be asked to answer a series of questions.  Soon after you have completed this process, DWD will send you documentation about unemployment.  Also, DWD will probably call you for a phone interview.

C. Phone Interview.

A DWD representative will likely call you for a phone interview, to discuss your employment termination in specific detail.  During the phone interview, you should of course answer all questions accurately and honestly.

You should also take care to speak in polite and factual terms.  It can be easy to get upset about what happened with the employer, and tempting to use charged words like the employer “lied,” was “unfair,” etc. when you describe what happened.  While it is understandable to be upset, getting angry or using charged language like this can only hurt your matter.  Be polite and objective.  Describe the facts without judging- let the phone interviewer come up with their own judgments after hearing the straight facts.

D. Initial Determination, and Obligations if UI Benefits Are Granted

After the phone interview, you will receive an initial determination, telling you whether you have been awarded UI benefits or not.  If you are denied benefits, you can appeal the denial (discussed more below).  If you are granted benefits, the employer may appeal that decision, as the employer has the right to do.  If the employer appeals, you will have to participate in a hearing. This is described more below.

If you are granted benefits, you will receive weekly UI payments, assuming you follow a few simple requirements.

First, each week you must call DWD (or report via the internet), to inform them you are still unemployed during that week and confirming you’ll need the weekly benefits.  Second, you have an ongoing requirement (for as long as you receive UI) to contact at least two employers per week to make job inquiries, and to keep documentation about those inquiries.  Please note: after you apply for UI, you should continue making your weekly phone or internet reports, regardless of which way the initial decision goes, and regardless whether you or the employer has an appeal pending. After any appeals are all said and done, at the end of the day you will only receive benefits for those weeks that you reported in for.  So you should not stop making your weekly calls/internet reports because you lost the initial decision, or because there is an appeal going on.

E. If Initial Determination Denies UI, and You Wish to Appeal

If you’re denied UI benefits in the initial determination, you have a right to appeal.

To appeal, you must write a letter to DWD.  You must include specific types of information in the letter.  Please review the appeal letter instructions on the back page of the determination, which tells you the exact information to include. The information is simple, and the appeal letter is easy to write.  Also, be sure you mail the letter before the appeal deadline stated on the front page of the determination.

F. Notice of Hearing.

If you or the employer sends in a timely appeal letter, then a hearing will be scheduled.  You will receive a notice letter in the mail, confirming that an appeal was submitted.  Soon after, you will receive a Notice of hearing, which will tell you the time and place where the UI appeal hearing will take place.  Usually, the hearing is within a short time, often a week or two, from when you receive the notice.

G. What Happens at the Hearing (Procedure)

Please read DWD’s webpage titled “Attending a UI Hearing.”  This page provides detailed information about the hearing process, and how to prepare for a hearing.

Also, DWD has FAQs about the hearing procedures here.  These FAQs answer common employee questions about what happens before, during, and after a hearing.  You should review DWD’s information for a complete description of the hearing process. I’ll offer some additional information as follows.

1. Hearing Location/Environment. A UI appeal hearing usually takes place in a small conference room in a governmental building.  Sometimes, the hearing is scheduled as a phone conference.  (If you are scheduled for a phone hearing but prefer an in-person hearing, you should contact DWD and inform them of that).

2. Administrative Law Judge. The hearing is conducted by an administrative law judge, also called an “ALJ.”  The ALJ makes a digital/audio recording of the hearing, and this recording is kept as the formal record of proceedings.  The ALJ conducts the hearing, and directs the order of how things will proceed.

The ALJ’s main functions are: (1) to control and direct how the hearing will proceed; (2) to accept into evidence documents that you or the employer bring; (3) to ask questions of the parties and their witnesses; and (4) to make legal decisions.

3. What Happens at The Hearing. As mentioned, the ALJ controls what happens at the hearing.  In my experience, a UI hearing usually proceeds as follows:

• The ALJ introduces herself or himself, and asks the persons present to introduce themselves.
• The ALJ asks the parties to state their positions.  For example, in a misconduct case, the ALJ will ask the employee whether s/he denies s/he was fired for misconduct, and the employee will answer yes.
• The ALJ explains the order of the hearing, and what will occur.
• The ALJ calls each witness (often, the employee-claimant is first), swears them in, and questions the witness.  Then, the ALJ allows each party’s attorney or representative a chance to question the witness.
• The ALJ allows the parties’ representatives to introduce documents as exhibits, and to question witnesses about exhibits.
• Sometimes, a party’s representative will “object” to a question or document presented.  The ALJ will then make the legal decision whether the objection should sustained (allowed) or overruled (denied).
• The ALJ  will conclude the hearing after all the witnesses and documents have been presented for the ALJ’s consideration.
• Sometimes, the ALJ will allow each party to make a “closing argument,” in which the party can summarize the facts (from witnesses and documents) and summarize the law that is in their favor.

4. Hearing Decision. After the hearing- and usually within a week or two- the ALJ sends the parties a written decision whether the employee has won the hearing (and won UI benefits) or not.

H. Should You Bring an Attorney to the Hearing?

You may be considering the idea of retaining an attorney for a UI hearing.  (I personally feel an employee does not need an attorney for the steps above that occur prior to a hearing).

Whether you should get an attorney to help with the hearing depends on several factors.  As a first matter, I should note that many employees (and employers) go to UI hearings without bringing an attorney.  UI hearings are less formal than court proceedings, and DWD’s ALJs deal with many unrepresented persons.  Employees certainly can, and many have, won UI hearings without having an attorney.

An attorney can, of course, help you raise the odds of success more than they are already.  If you feel the odds of success are already very high (based on documents, witnesses or other factors you feel are in your favor), then you may not find an attorney necessary or worth the cost.

The cost of an attorney is obviously an important factor to consider.  Most attorneys will charge, for their legal fees, 10% of your maximum UI benefits.  For example, if you are to receive the maximum UI benefit of $355 per week, 26 weeks at this amount would be $9320, and an attorney would likely charge you 10% or about $923.

Obviously, you must consider whether $923, or whatever the attorney charges, is worth paying.  If, for example, you expect to pick up a new job in a few weeks (ending your UI benefits at that time), then it is probably not worth paying an attorney $923.  This is because the value of UI benefits at issue- UI benefits for 2-3 weeks- will be less than, or not much more than, $923.  If, on the other hand, you feel it is very likely you will be unemployed for a long time (i.e. for much or all of the 26-week UI period), then it may make more sense to you to invest in an attorney from that perspective.

Finally you should consider your own comfort level.  Some people simply feel more comfortable with an attorney assisting them, and feel the investment in legal fees is worth this comfort.

If you consider the factors above, that will help you in making the decision whether you should or should not hire an attorney for a UI hearing.

I. Preparing for the Hearing

You should do several things to prepare for your hearing.

• After you receive the notice of hearing, you should promptly call DWD (using the phone number on the notice documents), and ask them for copies of your complete unemployment file.

If you do not have much time before the hearing, and DWD may not be able to mail the documents to you before the hearing, you should personally travel to DWD to pick up the file document copies.  Make sure you receive and review this documentation before your hearing.

The file information will likely include these important documents: (1) notes DWD took during their phone interview with the employer; and (2) documentation the employer sent to DWD (letters, witness statements, policies, etc.) that support the employer’s reasons why you shouldn’t receive benefits (e.g. why they say you violated policies and committed misconduct).

It is important you review these UI file documents, especially information from the employer, which will usually give you a good idea of what the employer intends to say at the hearing.

• Identify the most important issues that you and the employer will discuss at the hearing.

Well in advance of the hearing, you should brainstorm about what all the most important issues are.

Consider the following example.  Say there was an employee who became ill, called in sick to work, and the employer fired the employee because the employer believed the employee was “faking” his illness.  The employer tells the employee that the employer believes faked his illness, that he violated the employer’s attendance policy, and that he is therefore fired because he committed “misconduct.”  The UI file documents from the employer similarly state that the employee was terminated for violating the employer’s attendance policy and he committed misconduct by doing so.

To prepare for a hearing based on this example, the employee would identify these issues as important: (1) what the attendance policy says; (2) why the employee did not violate that policy; (3) why the employee’s actions (even if they did violate the policy) were not bad enough to be “misconduct.”

You should look at your own circumstances and brainstorm ALL important issues- what the employer will allege at the hearing, and what is important for you to address.  You should write down the issues so you remember them all, and can prepare for them.  Usually, at the hearing the employer will repeat many of the criticisms that it made directly to you, or criticisms that it made in information it provided to DWD.

• Identify documents that are important for the hearing, make three (3) copies of each, organize them in numbered tabs, and make an Exhibit list.

You should review the UI file documents (e.g. employer letters to DWD, policies, etc.), and review your own documents (e.g. your employee handbook, termination letter, etc.), and locate all documents that are important to your UI hearing.

You should set aside those documents, and make three copies of each.  One copy for you to use at the hearing, one copy for the ALJ to mark as an Exhibit, and one copy for the employer’s representative.

You should organize the documents, and separate them using corresponding, numbered tabs.

You should then make an Exhibit List that lists: (1) a one-line description of each document (e.g. “Attendance Policy”); and (2) the number assigned to that document (”#1″).  This way, you will know right where the documents are, should you want to use them as Exhibits during the hearing.

• Contact witnesses who have information that supports you, and see if they can attend the hearing with you.

If there are witnesses who support your position, you should contact those persons promptly after receiving your hearing date, and see if they can attend the hearing with you.

You should only contact witnesses who have firsthand information about the important issues.

Consider the example above, where an employer says the employee “faked” an illness and committed misconduct by violating an attendance policy.  In this situation, a helpful witness would be someone who, for instance, observed the employee on the day he called in sick, and saw that the employee was visibly ill.  The witness’s testimony about this observation would help the employee prove that he did not fake an illness, did not violate the attendance policy, and did not commit misconduct.  This sort of witness- someone with firsthand knowledge of facts that support your position- is very helpful.

You, of course, are a witness for yourself.  If there are no other witnesses available, and only you are testifying on your own behalf, it is still certainly possible to win your hearing.  It is common for unemployment hearings to have only 1-2 witnesses for each party.

As a last note,  you should not bring “character” witnesses who do not have firsthand information about the important issues.  Only persons who observed or were involved with the employment actions at issue are acceptable witnesses.

• Prepare questions for your witnesses.

You should write down questions that should be asked of each of your witnesses.  Using the example above (employee fired for alleged violation of attendance policy), that employee may wish to ask witnesses: (1) to read and answer questions about the attendance policy document, which can be introduced as an exhibit; (2) to answer questions about why the employee was not “faking” his illness.

You should spend a good amount of time brainstorming questions to ask each witness, and write those questions down.  You should also think about all the important documents that that witness has knowledge of, and questions to ask the witness about each document.

• Think of all the witnesses the employer may bring, and prepare questions for them.

You should also anticipate what witnesses the employer may bring- this may include the supervisors and HR reps involved in your termination, for instance- and write down questions to ask those people.  Those witnesses will, of course, oppose you and be “adverse” to you.  You should keep this in mind when drafting questions, and consider ways to get them to admit important points, or to make their inconsistencies apparent.  Do not get “cute” or angry when formulating questions for adverse witnesses.  While you obviously have disputes with these persons and must ask them hard questions, you should always remain civil and polite.

• Review the legal issues.

The DWD has a legal “digest” found here which summarizes legal decisions about common unemployment law issues (e.g. legal decisions about what is and is not “misconduct”).  You may be able to find legal cases that involve facts similar to your own matter, and find legal standards that apply.  If you retain an attorney, she or he will likely perform the legal research for your matter.

J. Attending the Hearing (Presenting Your Planned Questions and Exhibits)

If you follow the steps above, you will have prepared documents and questions for the hearing.  When you come to the hearing, you must of course execute: that is, you will actually ask questions, and present documents, that you prepared.

As the hearing progresses, you may find there are several questions or documents you prepared that you do not wish to present after all.

You will also probably come up with new questions and ideas, that you think of on the spot.  This is all fine.  One can never prepare perfectly for a hearing, but preparation will help you anticipate most of the issues, and will help reduce anxiety because you will have visualized most of the issues and proceedings in advance.

At the hearing, your attitude is very important.  Be positive.  Be courteous to your opponent, and to the ALJ.  Remember that they believe in their perspective just as strongly as you believe in yours.

When you are a witness, state the FACTS (e.g. “The employer said I was fired for X”), do NOT state judgments (”The employer was being ridiculous”).   If you question another witness, be courteous and stick to the facts.

Do not get angry.  If your opponent gets angry, smug or difficult, do NOT respond angrily or defensively.  If you do, that reflects badly on you, no matter how correct you may be.  Take the high road.

If you read all the information above, including DWD’s referenced web information, you will be better prepared than the vast majority of UI claimants.  And hopefully, your preparation will result in you winning your UI hearing.

K. Appealing UI Hearing Decision

If you receive the ALJ’s written decision and learn you did not win your UI hearing, you can appeal.  The employer can appeal as well, although in my experience most employers who lose UI hearings do not appeal.

The appeal proceedings are conducted by an agency called the Labor Industry Review Commission or “LIRC.”

Appeals to LIRC are beyond the scope of this post, and will not be discussed in detail.  However, it is important to note that, if you lose your UI hearing and want to appeal to LIRC, you should pay close attention to the appeal instructions and deadline stated in the documentation you receive.

If readers would like more information about the LIRC appeal process, please feel free to leave comments or email me to that effect, and I can post separately about the LIRC appeal process.

Legal Services, WI Unemployment

You can click here to learn about WI unemployment legal services of the blog’s author, Employee Rights Attorney Michael Brown of Peterson, Berk & Cross.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.