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 assistance from attorney-author Michael Brown of DVG Law Partner for your Wisconsin unemployment matter, please contact us here:
The information below is intended to supplement information from the State of Wisconsin’s Department of Workforce Development (DWD), the agency that administers unemployment benefits. You can also review DWD’s “Handbook” here, which has detailed information for employee/claimants, and DWD’s FAQs here.
Below is additional information 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 when DWD determines one of the following occurred: (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) Substantial fault: this is when DWD finds an employee violated a requirement of the employer, to a degree more severe than just a minor rule infraction, inadvertent error, or failure of the employee to perform work because of insufficient skill, ability, or equipment; (3) Quit: this occurs when DWD found that the worker quit, and did not meet any exceptions to the quit-ineligibility rule; (4) Refusal of Work: when DWD finds a worker had refused a bona fide offer of work from an employer; or (5) 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.
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; and (3) be truthful. These rules are easy to understand, but many workers fail to follow one or more of 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 following 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 either party appeals, you and the employer will then be scheduled 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 report to DWD (via phone or internet), to inform them if you are still unemployed during that week and confirming if you’ll need the weekly benefits. Second, you have an ongoing requirement (for as long as you receive UI) to contact employers to make job inquiries, and to keep documentation about those inquiries– DWD will inform you of specific requirements as to numbers of weekly inquiries, etc.. 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 either submit an appeal online at this website, or appeal 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 process and 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 submit or mail 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 in 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 assert the employee was fired or quit, whether misconduct is alleged, etc.
- The ALJ explains the order of the hearing, and what will occur.
- The ALJ calls each witness, 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.
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.
With that said, a competent attorney can possibly help raise your odds of success. 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.
Also, 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.
Finally, if you are thinking about hiring an attorney, you should know that the timing of when you hired an attorney is very important. An attorney can make the greatest impact if retained before the hearing. If you lose the hearing and try to retain an attorney for an appeal after that point, it would be much more difficult for an attorney to help, and the odds of success would be much lower, at that point. This is because appeal decisions usually uphold the hearing decisions, and also because any appeal that occurs after the hearing has the case’s evidence limited to the “record” of information (i.e. the recording/testimony and exhibits) that was created at the hearing. An attorney can help the hearing go better, and help ensure a better “record” of exhibits, etc. is generated. If an attorney is contacted after a hearing with a deficient record having been created, the attorney’s hands would be tied by having to rely only on that record in any further appeal work.
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 can consider doing these things to prepare for your hearing.
- After you receive the notice of hearing, you can promptly call DWD (using the phone number on the notice documents), and ask them for a copy of your complete unemployment file.
It is helpful to get the file copy and review it before your hearing. 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 can personally travel to DWD to pick up the file document copies.
The file information will likely include these important documents: (1) notes DWD took during their phone interviews with the employer and you; and (2) documentation the employer sent to DWD (letters, witness statements, policies, etc.) that support the employer’s reasons claiming you shouldn’t receive benefits (e.g. why they say you violated policies or committed misconduct).
These UI file documents, especially information from the employer, will usually give a good idea of information the employer intends to present 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 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, and consider whether you want to bring copies to use at the hearing (e.g. as exhibits).
You should consider reviewing the UI file documents (e.g. employer letters to DWD, policies, etc.), reviewing your own documents (e.g. your employee handbook, termination letter, etc.), and locating all documents that are important to your UI hearing.
If you choose, you may want to bring important documents to the hearing to possibly use as exhibits. (If so, consider bringing three copies of each: one copy for the ALJ to use and keep as the official exhibit, one copy for you to read, and one copy for the employer’s representative to read).
For any documents/copies you bring, it could help if you organize those documents, e.g. by using binders to separate them, by using numbered tabs, notes, or an exhibit list, etc.
- Contact witnesses who have information that supports you, and see if they can attend the hearing with you.
If there are witnesses who observed events and facts important to your matter and whose observations validate or support your factual position, you could contact those persons promptly after you receive notice of your hearing date, and see if they can attend the hearing with you.
You should only consider 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. A witness who would not be helpful is a “character witness” who did not observe any illness-related issues, and merely intends to testify “this employee is not the kind of person who would fake being sick, that is not his character.” Again, only witnesses with firsthand factual observations could potentially be useful at a hearing.
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 the claimant appear as a witness for his or her “side”, and for the employer to have only one or two witnesses appear for the employer’s side.
- Prepare questions for witnesses.
In preparing, consider writing down questions that could be asked of each witness you expect to be at the hearing. Using the example above (employee fired for alleged violation of attendance policy), that employee may wish to ask a witness: (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.
It may take a good amount of brainstorming and time to think of questions to ask each witness, and to write those questions down.
Keep in mind that the employer’s witnesses will be adverse to you– they will oppose you, and at the hearing could potentially be negative or unfriendly, etc.
However, 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.
If you want to learn more about unemployment laws and standards, you could review DWD’s legal “digest” 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 may 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 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 could appeal the hearing decision. The employer could 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.
I hope this article was helpful to you in providing information about Wisconsin’s unemployment process.
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: