If you are a Wisconsin worker with an unemployment application pending, you may have a phone interview or hearing coming up.  If you do, you will soon be answering questions from a legal authority in the unemployment process.

Before you have a phone interview or hearing– that is, before you start answering questions as a witness– please consider these Three Rules.

Rule 1: Listen to each question, very carefully.

Rule 2: Answer ONLY the question you were asked (without volunteering extra information, explaining yourself, or telling your “side”).

Rule 3: Tell the truth.

These rules sound simple, right? They are easy enough to understand.  But they are very hard to follow.

Once you are in the moment, and engaged in the question-and-answering process, your human instinct will urge you to violate these rules at every turn.

Here’s an example of how many workers fail to follow the rules (I probably would too, if I didn’t have the benefit of repeat experience with the process).

PHONE INTERVIEWER (or JUDGE): What did the employer tell you was the reason for your termination?

EMPLOYEE: They told me I yelled and talked back to my boss and that I was “insubordinate.”  That wasn’t true.  I have never talked back to my boss or so much as raised my voice.  HR never even asked me for my side of what happened.  If HR had just talked to me and my coworkers, they would have known I never talked back to anyone.  My boss was the one constantly harassing people; he yelled at lots of people.

Notice this is the kind of response that human instinct will WANT to say. But the answer given does NOT answer the question presented.  This kind of answer– no matter how true its components may be– is exactly the kind of answer that makes witnesses lose credibility (and at times, their unemployment benefits) in the determination of the questioning unemployment official.

An employee following the 3 rules would realize that the first sentence of the answer above (“They told me… I was ‘insubordinate’”) is the only information needed to answer the question that was asked (“What did the employer tell you…”).

Employees commonly get into trouble by hearing the question as they WANT to hear it, e.g. hearing the unemployment official’s question above as if it were this: “What did the employer tell you, and explain to me why the employer is wrong and you’re right?”

All that extra stuff– the need to give an explanation of your “side”– is what your instincts will want to spill out of you.  You’ve got to keep a lid on that.  The easiest way to keep the lid on is to listen carefully to the question.  If you listen to exactly what is asked of you, then you’ll know that any information beyond what’s asked is too much.

Thus the Three Rules.  If you’re going to be an attentive and effective witness, then it’s critical that you listen to each question carefully, respond with exactly the information you’re asked for (and no more), and respond truthfully.

And telling the truth, by the way, is more than just not lying.

In a way, the response above is not truthful, even if  its volunteered/excessive facts (e.g. “My boss was the one constantly harassing people”) are true and supported by evidence.  While it’s not a “lie” to volunteer your side of the true facts, it’s nonetheless not being straight-forward.  That is, telling your story– when the question did not ASK you to– is a way of being evasive and defensive.

Much of my unemployment legal work involves helping employees internalize the Three Rules.  It is common for employees to violate the rules, left and right, and often it takes me a good deal of practice and question-and-answer role play with employees until they internalize the rules and adopt the function of a witness.  Employees often tell me, “yeah, yeah, I understand the rules, let’s move on”– but then we practice with some questions, and once on the hot seat, the employees realize that the Three Rules aren’t so easy to adopt in real-time.

There are of course other important things to know and prepare for before you attend a phone interview and hearing.  It’s important to know which facts and issues are important, which ones are not, and which ones may annoy your questioner or even lose your benefits on the spot.

But the Three Rules come into play before you even think about the facts of what occurred.  The Three Rules are a matter of discipline, and understanding your place as an employee-claimant within the unemployment system.  Your role is that of a witness.  And the essential function of a witness is to listen to each question carefully, and to answer it precisely and truthfully.  If you do not properly understand and accept that role, then you could run into problems with the unemployment process, regardless of the merits and factual circumstances of how your job ended.

Legal Services- WI Unemployment

Employee Rights attorney (and blog author) Michael Brown provides legal representation for Wisconsin workers in unemployment hearings.  No legal fees are owed unless you win your unemployment benefits.  To learn more, contact Employee Rights assistant Joy Sisler at 920-831-0300 or jsisler@pbclaw.com, or click this picture link .

Dogs and Cats Living Together!

Recently I was at a legal hearing.  It was the same old drill in most respects.  Two parties opposed each other.  A boss had fired an employee.  The boss’s testimony opposed the employee’s testimony, and vice versa.  Neither side changed any beliefs when the hearing was over.

But after the hearing, a great thing happened.

After the hearing, I saw my client, the employee, approach the boss that had fired him and now testified against him.  The two men proceeded to shake hands.  Then they stood and talked for awhile.  From the two persons’ body language, I could tell that they liked and respected each other.  I also knew that neither person had changed his mind about the hearing, or about feeling right about his position on the job termination.

These two dynamics– having a big dispute with an opponent, yet liking that opponent– are not contradictory.  Not if disputes are recognized for what they are: a conflict between two views, not a conflict between two persons.

As is often written, it’s important to recognize there’s a distinction between a person and his views.  Between a person and his conduct, or a person and his misconduct, e.g. “hate the sin, love the sinner.”

It’s easy to note these distinctions, and their surface logic that it’s best to be polite and not personalize matters.  But these oft-spoken standards usually go out the window after a legal dispute starts.  More often than not, legal proceedings are made personal and taken personally.

But not this time.  Which is more than good.

Legal Services- WI Unemployment

Employee Rights attorney (and blog author) Michael Brown provides legal representation for Wisconsin workers in unemployment hearings.  No legal fees are owed unless you win your unemployment benefits.  To learn more, contact Employee Rights assistant Joy Sisler at 920-831-0300 or jsisler@pbclaw.com, or click this picture link .

If you are an employee seeking unemployment benefits, and you will be talking to an unemployment agency phone interviewer and/or administrative judge, please avoid a common pitfall: don’t assume that the unemployment representative will identify with you, and will be receptive to you complaining about your former employer.

An unemployment representative isn’t your friend.  That representative won’t be receptive to complaints or adjectives,  e.g they won’t want to hear you saying your former employer was “unfair,” “wrong,” “lying,” etc.  A friend or acquaintance (especially one who knows and trusts you) may well be open to accept your opinions, labels and conclusions at face value.  But again, an unemployment interviewer or judge is not your friend.  They don’t know you from Adam, and don’t know the employer from Adam.  You DON’T want their first impression about you to be “This person is a complainer who is telling me what to think without telling me the facts.”

While an unemployment interviewer or judge isn’t your friend, they are not your enemy either.  They don’t want to hear the employer hand-feed them a bunch of conclusions either.  If the employer does the things I am telling you not to– and the employer tells the unemployment representative long-winded sentences with negative labels and conclusions– then that will likely serve to your benefit, because the unemployment rep won’t view that as credible coming from the employer either.

An unemployment interviewer and judge want the facts.  As such, they will ask you factual questions: who, what, where, when, why, how.  If you respond to these factual questions with factual answers — and you discuss persons, places, statements, and actions in factual terms (“My boss stated the sky is green”) rather than opinionated terms (“My boss is a liar”)– then the unemployment representative will better appreciate your information, better be able to perform their job, and will more likely view you to be credible and reasonable.

I have covered most of the suggestions above within other posts.  But these issues are worth repeating and isolating as the topic of this post, because it is instinctive and common for an employee- claimant to treat an unemployment decision-maker as if they have a sympathetic ear that’s open to adjectives.  If you stick to the facts, and let the unemployment decision-maker decide the labels and conclusions that apply, it is more likely the issues will be decided in your favor.

Legal Services- WI Unemployment

Employee Rights attorney (and blog author) Michael Brown provides legal representation for Wisconsin workers in unemployment hearings.  No legal fees are owed unless you win your unemployment benefits.  To learn more, contact Employee Rights assistant Joy Sisler at 920-831-0300 or jsisler@pbclaw.com, or click this picture link .

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Stepping back from those detailed issues, there is another, more fundamental issue to consider: attitude.

Your attitude is important, and can make or break your hearing.

The most effective approach and attitude, in my opinion, are discussed as follows.

Leave Your Adjectives at the Door; Talk in the Language of FACTS

If you walk into your unemployment hearing ready to explain that your former boss “lied,” and that he is a “hothead,” “unreasonable,” “disorganized”– or any other adjective– then you have just lost half the battle.

Here’s a little secret that most attorneys know, and most employees don’t:

Judges hate adjectives and conclusions that are provided by anyone other than judges.  After all, it is the judge’s job– not the employer and employee witnesses’ job– to make conclusions and decisions about who was right and wrong.

If you are answering questions as a witness should, you will NOT answer like this example:

Unemployment Judge: What did your boss tell you when you were fired?

You: He told me that I “falsified documents.”  That’s just like him to make up something like that.  If what I did was “falsifying documents,” then ten other employees should be fired for doing much worse things.  That management is just ridiculous. I didn’t commit misconduct- they did, if anyone.

Please know this: it is not your place, as an employee-witness, to provide adjectives, labels or conclusions at an unemployment hearing.

Your job, rather, is to answer questions with  FACTS: who, what, when, where, how.

GOOD testimony is something like this: “On June 1, 2009, Mr. Jones stated ‘Handle a hundred calls today or you’re fired.’”

BAD testimony: “Mr. Jones was blatantly unfair and made unreasonable demands.”

Three Rules for Testifying/Answering Questions

Another issue of attitude concerns discipline in answering questions.  Are you going to walk into the unemployment hearing and wing it, relying on your instincts and everyday conversation style when you answer questions?  Or, are you going to walk in disciplined, and prepared to handle questions in the way the administrative law judge wants?

If you want your testimony at the hearing to be credible and effective, there are three rules you must follow: (1) listen carefully to the question; (2) answer the question you are asked (AND NO MORE); and (3) tell the truth, owning up to hard truths without being defensive or evasive.

These rules sound simple, right?  They are, but I guarantee you’ll forget these rules if you don’t internalize them and follow them with discipline.  Your instinct and emotion will egg you on to do differently, pushing you to tell “your story” for 5 minutes in response to a yes or no question.  I know I personally would violate most of my suggestions in this article if I didn’t have the job and experience with the legal system that I do.  Many of these suggestions run counter to human instinct, which compels us to explain ourselves and justify why we’re “right”, give our opinions, etc.

However, the judge (and opposing party) are only going to ask you questions about facts.  Who said or did something?  What occurred?  When? How?  You are not going to be asked about your opinions or legal conclusions.

Listen to the question as it is (a request for facts)– not as you want it to be (an invitation to explain yourself and to convince).

If you are asked a yes or no question, respond “yes” or “no.”

If you are asked for a date, respond with a date.  Do not take an extra step and volunteer your explanation or story when you’re not asked for it.  And if you’re asked a question that requires you admit to a hard truth, then do it.  Own up.  Don’t be defensive, try to downplay what you did wrong, or try to blame others.

Be Polite (Especially When Your Questioner Isn’t)

At the hearing, you may feel that a questioner– especially if it’s your former boss or another employer representative– is being rude, cute, unfair, etc.

You should always be polite and factual in response to questions, especially when the questioner is not.

Remember, you are at the hearing to state facts: X did Y on Z date.  That type of information does not need to be accompanied by any anger, defensiveness, tit-for-tat zingers, etc.  To the contrary, if you state your facts genuinely and politely, keeping your cool and not taking the bait when baited, your testimony will be all the more credible.  You will be the person with the level head in the communication, with the other person showing the anger, sarcasm, or pettiness, etc.

Don’t Hate Your Opponent

You may find it hard to get over hard feelings toward your employer, especially if they fired you and are challenging unemployment benefits that you need to survive.

But keep in mind there is a distinction between a person and the person’s conduct.  Even if a manager’s actions toward you were objectively unfair, that does not diminish the value the manager has as a person.  He or she is someone’s child, someone’s parent, someone who you may have had positive interactions with in the past.  It is good to remember this bigger picture so you don’t get consumed in negative aspects of legal proceedings.

You don’t have to hate your opponent/employer representatives to do what you have to do, i.e. to state facts.  If your attitude is one of respect to your opponents, they will pick up on that, and on some level will (unconsciously and/or consciously) appreciate it.

Best of luck with your hearing.

Legal Services- WI Unemployment

Employee Rights attorney (and blog author) Michael Brown provides legal representation for Wisconsin workers in unemployment hearings.  No legal fees are owed unless you win your unemployment benefits.  To learn more, contact Employee Rights assistant Joy Sisler at 920-831-0300 or jsisler@pbclaw.com, or click this picture link .

According to the U.S. Department of Labor (DOL), “If you were offered Federal COBRA continuation coverage as a result of an involuntary termination of employment that occurred at any time from September 1, 2008 through February 16, 2009, and you declined to take COBRA at that time, or elected COBRA and later discontinued it, you may have another opportunity to elect COBRA coverage and pay a reduced premium.”

Please know there are several specific and detailed eligibility rules to get the new COBRA subsidy, so the purpose of this post is not to tell you that the COBRA subsidy money is guaranteed for your situation.  Rather, this is a heads up that the COBRA subsidy may be available, depending on a laid off worker’s circumstances, and as such is worth you looking into.

As a first matter, you can review information about the new COBRA benefit at this web page of the Department of Labor (DOL), which describes general information about the COBRA subsidy benefit.  From this web page, you can link to more specific information, such as DOL “Fact Sheets” for employees and employers, FAQs, etc.

DOL describes specific employee-eligibility requirements (e.g. required date range that layoff occurred, required formwork, etc.) at this web page.  DOL has answers to employee FAQs here.

Once you have read information from DOL, if you think your situation is such you may be eligible  in the COBRA subsidy, you could then contact the COBRA administrator as identified by your employer (usually, the employer will list a COBRA contact/phone number in its employee handbook, mailed COBRA materials, or other sources).

If you contact the COBRA administrator, they should be familiar with the new COBRA subsidy, whether you are eligible and if it can be applied to your specific situation, what you’d need to do, what your deadline(s) are, and how payments and COBRA benefits would work.

I wish you the best of luck, and hope the COBRA subsidy is of great assistance to many laid off employees.

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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If you get a chance, can you please post a comment on whether the unemployment posts were helpful to you, and how your unemployment hearings went?

(Please note: I’m not asking for your name or case details- I am just curious if the blog information was useful).

Thanks!

Michael Brown

Employee Rights Attorney/Blog Author

You may ask, “What does my job-search or new employment have to do with what my old employer did?”  The answer: for most common employment claims (e.g. a claim your termination violated discrimination law), the offending employer can be held responsible for wages you lost (or “back pay”) from the date of your termination forward.  An offending employer could try to legally reduce or eliminate the back pay it has to pay you by claiming that you didn’t look hard enough for a new job (or that you “failed to mitigate damages” in legal speak).

To avoid this potential argument that you failed to mitigate damages or look hard enough for work, you should keep documentation of your job-hunting efforts to remove any doubt that you made reasonable efforts to find work.

What Documentation You Should Keep

To keep good documentation of your job-search efforts, you should:

• Keep or record information about every prospective employer you contact (e.g. write down the prospective employer’s name, date of call/visit, what job position you inquired about, rate of pay, etc.).
• Save copies of job-application-related documents (e.g. job ads you reviewed, applications you sent, cover letters, resumes, rejection letters, etc.).
• Save copies of unemployment-related documents you have (e.g. Wisconsin’s Unemployment division requires that an unemployment claimant-employee contact at least two prospective employers per week, and to keep documentation to that effect).

If you keep these forms of documentation, you will be in a better position for any future legal claim against the employer who terminated your employment.

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 (and an employment attorney for employment matters).

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

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Unfortunately, WI workers have an additional concern: there are some employers out there who appear to challenge the unemployment benefits of most, if not all, of the workers whose employment is terminated.

A challenge-every-unemployment-claim employer may contract with lawyers or vendors whose sole job is to process unemployment challenges by the company.  Unemployment challenges thereby become a streamlined business function.

Apparently, some employers have decided that they benefit financially by challenging every (or many) unemployment claims; by winning some percentage of these challenges, they save money that would have been paid toward unemployment benefits.  And apparently the employer expects the money “earned” from defeating unemployment claims will be more than the money paid to the vendors and lawyers who work to defeat the employees’ claims.

The employers’ most common basis to challenge unemployment is to claim the terminated employee was fired for “misconduct.” If an employee is legally found to be fired for “misconduct” (defined by WI law to basically mean severe wrongdoing that goes above and beyond poor job performance), then they are not eligible for unemployment benefits.

I expect employers to make a surge of overreaching “misconduct” allegations, and a surge of unemployment benefits challenges, that coincide with the increased job terminations during the economic downturn.

For those Wisconsin workers who are laid off (or expect you may be), I have a post here about pursuing unemployment benefits and preparing for an appeal hearing, should there be a dispute over your unemployment benefits.

Please note: I don’t intend to be fear-mongering here.  Most employers do not challenge unemployment in an assembly-line fashion and reserve their allegations of “misconduct” only for a minority of their terminated employees (i.e. those employees who the employer truly believes committed misconduct).  But the assembly-line unemployment-challengers are increasing in number, and tough economic times will further amplify the trend.  Bottom line: in this day and age you cannot assume your employer will act fairly if you apply for unemployment benefits.

You should keep an eye out to make sure your employer is not one of those who treats unemployment proceedings as a business forum to save money, and who value that function over human rights and survival benefits.  If you are one of the unfortunate persons who are laid off or fired, you should ask around, to see if your employer has routinely challenged unemployment for most or all workers.

Regardless of your employer’s track record with unemployment, you should prepare for an unemployment challenge, and you should consider Plan B alternatives in the event that unemployment benefits are denied.  By being aware of these possibilities and planning to prevent them, you will increase your chances of receiving unemployment benefits.

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.

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.

To learn about unemployment legal services from the blog’s author, Employee Rights Attorney Michael Brown, you can click this link:

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

To learn about unemployment legal services from the blog’s author, Employee Rights Attorney Michael Brown, you can click this link: