Employee Tip: Filing for Unemployment in WI; Preparing for Appeal and Hearing

If you are a Wisconsin employee seeking unemployment benefits, you may wish to consider the information and tips below.

Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:

WI Unemployment - No Fees Unless You Win

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 assume you are, or are not, eligible.  You can apply for UI to find out.

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: this occurs when the employer claims a worker was fired for misconduct (bad conduct considered intentional or very reckless) and DWD agrees; (2) Quit: this occurs when DWD found that the worker quit, and did not meet any exceptions to the quit-ineligibility rule; (3) Refusal of Work: when DWD finds a worker had refused a bona fide offer of work from an employer; or (4) Medical Inability to Work: when DWD finds a 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 based on your own assumptions alone.

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.

During this call, follow three rules of thumb: (1) Listen carefully to each question; (2) Directly answer ONLY that question; don’t volunteer additional facts or “explain” your side of things, however true those unsolicited facts you want to volunteer may be; (3) Be truthful.  These rules are easy to understand, but few workers actually follow them.  Human instinct makes people want to hear questions as they want to hear them (rather than listening carefully to the actual question asked), and makes people want to explain their side of the story or advocate for themselves instead of answering with only the factual information requested.  I strongly recommend you role-play and have a question-and-answer session with a trusted person, and see how good you actually are at the three rules.  For most people, it takes them some thought and practice to follow the three rules and avoid the bad habits of volunteering and advocating for themselves when not asked.

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 submit an appeal online at this website, or by writing a letter to DWD.  You must include specific types of information in the appeal.  Please review and follow the instructions on the back page of the determination, which tell you the exact information to include in an appeal. The information is simple, and the appeal is easy to write and submit, especially if you do so electronically.  If you decide to appeal, be sure you mail or submit the appeal early, well before the appeal deadline stated on the front page of the determination.  If an appeal is after the deadline, it will be denied; while you could appeal a denial for untimeliness, the vast majority of people lose such appeals, and the vast majority of excuses offered for untimeliness are deemed not good enough by DWD.

F. Notice of Hearing.

If you or the employer sends in a timely appeal, 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.  If you do not receive a confirmation notice before the appeal deadline, call DWD to make sure the appeal was received.  If there was some mistake (e.g. mail delay), you want to find out about it and correct it before the appeal deadline passes.

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.

2. Administrative Law Judge. The hearing is conducted by an administrative law judge, also called an “ALJ” or “Tribunal.”  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 general positions, e.g. whether they agree whether the employee was fired or quit, or whether there was misconduct.
  • 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.
  • On occasion, 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- usually within a week to a month- 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.

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 believe an attorney is necessary or worth the cost.

The cost of an attorney is obviously an important factor to consider.  Attorneys will often charge up to $900 or more, win or lose, to represent a worker in unemployment proceedings.  While I charge employees on a pay-only-if-you-win basis, if someone wins, the fees often exceed $900.

Obviously, you must consider whether  the fees the attorney charges are 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 over $900.  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, $900.  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 angry or “cute” 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”, what is and is not a voluntary termination or quit, etc.).  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 could perform 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.

Last, remember to follow the “three rules” of thumb above.  This is extremely important.

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 many 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.

Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:

WI Unemployment - No Fees Unless You Win

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37 Comments

Filed under Employee Tip - Unemployment, Unemployment - Wisconsin

37 responses to “Employee Tip: Filing for Unemployment in WI; Preparing for Appeal and Hearing

  1. Excellent Blog. I’ve been reading along and just wanted to say hi. I will be reading more of your posts in the future.

    - Jason.

  2. Nice writing. You are on my RSS reader now so I can read more from you down the road.

    Allen Taylor

  3. What a wonderful, informative blog. This information will hopefully reach a lot of oppressed employees.

    Sue

  4. Hollie

    I won my appeal hearing, now I just want to know how long I have to wait for benefits

  5. Holly:

    I do not have access to that information. Usually, Wisconsin unemployment benefits will start within a short time of the hearing decision, but I can’t speak to your specific situation.

    You should call the unemployment division (their number should be on the top of documents you received from them).

    An unemployment representative should be able to tell you exactly when payments will start. In the meantime, make sure you make your weekly call-ins or internet reports to the unemployment division. You are only eligible to receive benefits for the weeks you report.

    Mike

  6. Rob

    Awsome blog. I’m getting ready for my appeal hearing. What happens if I lose will I recieve any benefits?

  7. Rob:

    Thanks for the kind words. Regarding your question, I assume you are asking about Wisconsin unemployment (the only State this article pertains to).

    If you lost the WI unemployment hearing, then you would not get benefits moving forward. (Unfortunately, you would also be ordered to pay back benefits, if any, that you had been paid leading up to the hearing).

    If you lose the hearing, you can appeal that decision to a second legal entity, called the WI Labor Industry Review Commission (“LIRC”). It is harder for a party, either employee or employer, to win at LIRC and overturn a hearing decision, but on occasion one can be successful.

    Hopefully, you win your hearing; if so, you would be in good shape.

    Best of luck.

    Mike

  8. Rob

    I’m in Indiana do you know if it is different? I’ve heard both.

    Rob

  9. Rob:

    I can’t speak as to Indiana requirements. You could call an Indiana employee rights attorney, finding someone from this webpage: http://www.nela.org/NELA/index.cfm?event=showAppPage&pg=members&membersAction=membersSearchResults&configid=105&showfullpage=1

    You can visit Indiana’s unemployment website here, and find contact information for someone to answer your questions.

    http://www.in.gov/dwd/2418.htm

    Hope this is of some help.

    Mike

  10. Rob

    Yes it was very helpful. I just have to serve a eight week waiting period.
    Thanks for your help.

    Rob

  11. Pingback: Employee Tip: Probable Cause Determination from ERD- Now What? « WI Employee Rights Lawyers, Wages, Sexual Harassment, H1B

  12. Michele

    This was very informative! I had my hearing today and my employer did not attend. Is that a good thing for me?

  13. Hi Michele:

    When an employer does not show up to a Wisconsin unemployment compensation (UC) hearing, that will usually help the employee.

    For example, many UC hearings concern the issue of whether the employee was fired for “misconduct.” It is the employer’s burden to prove misconduct occurred, and that UC benefits should be denied on that basis.

    If the employer does not show up or present evidence, then the only evidence available is the limited information in the case file (e.g. the limited information the employer submitted to DWD prior to the hearing). Under these circumstances, it would be very difficult for the employer’s burden to be met.

    While it is possible you could lose a UC hearing when the employer doesn’t show up, the fact that they didn’t can only help your chances of winning.

    Best of luck.

    Mike

  14. Pingback: Beware of the Employer Who Challenges All Unemployment Claims « WI Employee Rights Lawyers, Wages, Sexual Harassment, H1B

  15. Roger

    My friend graduated from law school but just moved to Wisconsin. If he is not licensed in WI can I have him represent me in a hearing? I really only want him involved in this.

    • Roger:

      This is a simple question with a simple answer (yes or no), but would take some leg work to answer. I’ve seen employers have non-attorneys act as representatives at a hearing, and many employees have represented themselves. The tricky part here is that because your friend is an attorney, certain laws applicable to attorneys become part of the equation, and those laws may or may not permit him to represent you.

      Whether an attorney can practice in a non-licensed jurisdiction can implicate at least three areas of law: the state bar’s attorney ethics rules in his licensed state(s) [e.g. rules about practicing other states' laws, what is an unauthorized practice of law, etc.], the WI ethics rules, and jurisdictional rules of the agency (DWD) that handles WI unemployment.

      I’d recommend your friend start the research by making three phone calls:

      (1) Call an ethics advisor or hotline in his licensed state, to see what their state’s ethics rules say about him appearing in a WI law forum and handling a WI law (unemployment) matter.

      (2) Call a Wisconsin State Bar ethics advisor or, if an WI advisor can’t/won’t talk to him, check out WI’s written ethics opinions and laws. Here is a link to WI State Bar ethics information, including ethics laws, opinions, and the WI ethics rules hotline.

      (3) Call the WI DWD’s unemployment division at (800) 494-4944, to see if they have any jurisdictional requirements that may affect your friend’s ability to represent you at a hearing.

      I hope the research yields a quick and favorable answer, and wish you the best with your hearing.

      Mike

  16. Anu

    Thank you so much for all the information. This was really helpful. I need to ask one question.

    If an employee is fired after 8 weeks of employemnet because of bad manager should they include that 8 weeks of experiance in the resume. If they do not include that 8 weeks experiance is it going to be shown as a crime when employers do background checks? Pleasse answer.

    Thanks in advance.
    Anu

    • Hi Anu:

      I am not aware of any laws that pertain specifically to resumes, although that’s not to say none exist. In general, if a job applicant provides false information or omits important information to a new employer (say a job application asks for all jobs in the last 2 years, and you omit the job you mention) that may violate laws (you should talk to an attorney about the specific situation before providing any false information or omission) and will almost certainly provide legitimate reason for the new employer not to hire you, or to later fire you, upon learning of the false/omitted information.

      I think it’s always the best policy to be forthcoming and truthful in responding to all requests you receive. If you are not asked or informed of any obligation to disclose information about the last employer, then there is probably no obligation. If you are asked or expected to disclose information about the last employer, then I think it’s best to disclose the employer and the circumstances.

      Whenever you discuss the circumstances with the employer/manager you mention, it’s best you do so in a manner that is polite and objective. You should mention the FACTS that made the last manager bad (e.g. if s/he had you work 80 hours a week, had high turnover and fired 10 workers every few months, etc.- whatever the facts may be). But if you don’t stick politely to the facts and take a negative tone, or you SAY the manager was “bad,” “unfair” etc., then you run the risk that the new employer will view you to be negative. People like to make their own judgments as to whether a manager was bad, whether your reasons for losing the last job were reasonable, etc. If you are polite and factual, you put yourself in the best position.

      A career counselor could opine on these issues as well.

      I wish you the best.

      Mike

  17. xina

    Good article – although I am in WA not WI I just wanted to say that my husband was fired in Jan and denied unemployment benefits for misconduct .He appealed the decision , had the Judge’s Telephone Hearing 2 days ago and heard today that the Judge had ruled in his favour. My husband prepared all night for the Hearing, had notes and kept his cool, whereas his supervisor was totally unprepared, was inexperienced, had obviously never had to deal with this kind of situation before and therefore failed to prove misconduct . Just want to say to ppl, if in doubt whether to appeal to GO FOR IT! As you said , the burden of proof is on the employer, and if their only evidence is hearsay thats even better…lol..

  18. Derek

    Best site I’ve come across! I’ve been told our plant is closing it’s doors. They have given us 60 days notice and we will receive a severence package (lump sum). My question is can I receive unemployment benefits right after I’m let go or is my severence package pro rated as a weekly paycheck according to wisconsin laws?

    • Hi Derek:

      Thanks for writing, and for your kind words. Regarding your question, if you are asking about unemployment in the State of Wisconsin, I recommend you call the WI unemployment folks directly (at 800-494-4944) to ask your question. The folks there are on the front line of these issues, and they can best tell you how your situation would be handled.

      Mike

  19. Kathy

    Considering filing an appeal, but unsure whether I can request documents from my former employer that are not directly related to my own personal employment. For example, I’d like to demonstrate to the ALJ that other employees were regularly tardy by presenting building key card entry reports for other employees as exhibits for the hearing. Can I legally request that my former employer provide the ALJ with these documents? Please advise. Thank you!!!

    • Hi Kathy:

      Thanks for writing. I should first note as a general matter that blog comment- questions about one’s own situation are questions I can’t provide legal advice for. For example, from your message, I cannot tell what State your unemployment is in (in my practice I only deal with Wisconsin law unemployment issues). If you emailed me back about the State you’re in, that would only answer 1 of about 50+ other questions I’d need to run through to get a good idea of your unemployment situation and what I’d think was advisable.

      I can say that, as a general matter, many legal proceedings allow a party to subpoena the opposing party to try to obtain documents. However, there may be several legal limitations (e.g. many employers would make an irrelevance objection to producing documents about employees other than the unemployment claimant) and practical limitations (e.g. in unemployment proceedings there may not be enough time to issue a subpoena and receive the documents on time).

      Your issues are ones you should run by an attorney directly, if you want legal advice and accurate answers for your own situation.

      Mike

  20. Jon

    I had a quick question? I was let go by my former employer and they are fighting me saying i quit. I already had a phone interview with ui and they told me they had to contact the employer to hear thier side and will go from thier. Well that company has gone out of buisness since then, am i automatically approved if that company no longer is around?

    • Thanks for writing. I should start by saying my response to your question is not legal advice- you would need an attorney from your State to discuss and evaluate your full situation, and your State’s unemployment law, before providing legal advice you could rely on.

      In Wisconsin, I am not aware of any law one way or the other that says an employer cannot contest unemployment if they go out of business. As a practical matter, if the employer is out of business, that increases the chances they will not participate in further unemployment proceedings (e.g. will not show up at a hearing, if you have one), and an employer’s failure to contest unemployment could increase the employee-claimant’s odds of winning. Some cases are tough for an employee to win no matter what.

      You may want to give your local unemployment office a call and ask your question, because your scenario is something the unemployment office is more likely to encounter more than an attorney would.

  21. Liz

    Dear Mr. Brown,
    Thank you, this website was very helpful to me in preparing for my unemployment appeal hearing. The situation is that I was terminated, received an initial determination to receive benefits – I filled out a UI Discharge Questionnaire, a phone interview wasn’t needed. My prior employer then appealled, there was a hearing and they lost. Now, they are appealling again, to the LIRC. As I understand it, from the LIRC website, this appeal process does not include another hearing, the LIRC reviews all the information previously reviewed by UI and the ALJ, then makes a decision. Am I understanding this correctly? I ask this because it seems as though my prior employer is attempting to manufacture more allegations to try to use against me for this appeal. Any imput would be appreciated, as I continue to live through not only losing my job but dealing with the uncertainty of my UI benefits – though it seems the LIRC rarely overturns a ALJ decision. Thank you for your consideration!

    • Hello Liz:

      Thanks for writing. I appreciate feedback about the blog post and your hearing.

      Regarding your questions, as always, I cannot provide legal advice as to your specific situation. In general, I can say that most UC hearing decisions are upheld at LIRC, so the statistics are in your favor, but of course each case is decided on its own merits. Also, if a party (your employer in this instance) tries to raise new evidence with LIRC (e.g. new reasons for termination not mentioned at hearing), LIRC is not supposed to consider that evidence, and they are pretty vigilent in excluding such new evidence in my observation. So, all things considered, hopefully things will go well for your matter.

      Best of luck.

      Mike

  22. Matthew Sauer

    I read through the information on appeals, but I would like to know the contact number for the department I am supposed to contact for the appeal. It has been over a month and I’ve heard nothing. The main office states they cannot help us. Thank you.

    • Hello:

      Thanks for reading the blog, and for your comment. From your message, it isn’t clear to me what level of appeal you are at (i.e. appeal to DWD with a hearing yet to occur, or appeal to LIRC after the first hearing, etc.). The type of appeal, as well as your location in Wisconsin, determine the specific contact and phone number you can best get information from.

      I recommend you get the latest document you received from the State for your unemployment matters, and call the main phone number listed on that letterhead. Someone should be able to direct you to the best party/phone number to answer questions about your particular appeal. If the first call doesn’t work, be persistent and try all the numbers you can find. It should not take many tries to get routed to someone who understands your situation and what you can do.

      Sorry I can’t be of more help.

      Mike

  23. Jack L

    First off, like everyone is saying, this is very informative. Thanks.

    My appeal is next week; but my situation seems impossible. I was getting benefits – and then returned to school, about 4-5 hours a day in the morning. I call the unemployment offices and explain to them that I’ve been in school, now they are stating that because I was in school, I wasn’t available for full-time work and now they request I pay my benefits back. I’ve done school and full-time before, so I thought it was ok. What should I do?

    • Jack:

      Thanks for your comment. Your situation would require legal advice, and more detailed discussion with an attorney. If you are in Wisconsin, you could (1) contact my firm at 920-831-0300 to discuss your matter (please note we would charge legal fees at some point); or (2) if you can’t afford any legal fees, you could contact the Marquette Law School’s unemployment assistance program, via the program’s representative Rebecca Salawdeh, rebecca@salawdehlaw.com, (414) 455-0117.

      If you are dealing with unemployment in a State other than Wisconsin, you will need to talk to an attorney licensed in that State’s law. You can conduct a by-State search for employee rights attorneys at this website: http://www.nela.org.

      I wish you the best.

      Mike

  24. Justin Prehn

    again, great article, very informative. i was fired about 4 weeks ago from a restaurant job i worked at for almost 4 years. no “good” reason was given for termination, they just said it seemed like i was unhappy there, and they were unhappy overall with my recent performance. they said they were “no longer comfortable having me represent the restaurant.” i asked for specific incidents, and management was unable to cite any at that time. i am still waiting for my fact-finding interview. assuming there were no specific conduct issues, can i expect to be granted compensation?

    • Hi Justin:

      Thanks for your message. While I can’t give you legal advice about your situation, based on what you describe it is probably unlikely the employer would challenge your unemployment or that you would be denied benefits. If an employee is laid off or fired, the employee is usually entitled to unemployment benefits, unless the employer challenges that the termination was for misconduct (or if there is some less common type of challenge to the benefits available to be made), and is successful with that challenge. Here, it appears the employer is not claiming that you committed misconduct- at least not to you. If you are denied after the phone interview (which again would surprise me), it’s certainly a situation you could appeal and/or talk to an attorney about if you wish.

      Best of luck.

      Mike

  25. Pingback: Attitude Matters at Your Wisconsin Unemployment Hearing « WI Employee Rights Lawyers, Wages, Sexual Harassment, H1B

  26. Pingback: Wisconsin Unemployment Info and Resources for Workers « WI Employee Rights Lawyers, Wages, Sexual Harassment, H1B

  27. Pingback: Wisconsin Unemployment Info and Resources for Workers | Peterson, Berk & Cross

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