Tag Archives: Unemployment

Be Careful About Saying “Discrimination” In a WI Unemployment Proceeding– That Word Usually Has No Place There

As an attorney with a practice in employee rights, I have represented many Wisconsin workers in unemployment proceedings.

It is common for me to read unemployment-related documents, and to see that my client has (before s/he retained me), used the word “discrimination” in talking about the employer’s actions to the unemployment office.

And almost always when I see that word “discrimination” used during an unemployment matter, it is a bad thing for the employee.

Usually, whether an employer may have discriminated or not is irrelevant for an unemployment proceeding.

For example, the most common type of Wisconsin unemployment dispute I see is about whether the employee (NOT the employer) committed misconduct prior to job termination.  In other words, the whole issue for the unemployment proceeding is whether the employee did something really bad or not.

If an employee goes into a hearing or phone interview, the purpose of which is to decide whether the employee did something bad– and then the employee proceeds to point the finger at the employer to accuse it of doing something bad (e.g. “discrimination”)– that does not go over so well with the unemployment office.  Nor should it. The purpose of the hearing is for the employee’s conduct to be reviewed, not the employer’s bad conduct such discrimination etc.

With this said, there are a few limited unemployment law issues and circumstances where a WI worker does need to address what an employer did wrong. But usually, workers are not aware of or addressing those legal issues when they’re calling an employer “discriminatory.”  Usually, when a worker states that, the worker just feels the employer did wrong, and feels that an unemployment interviewer or judge will want to hear about that and/or will agree with that.

These are dangerous assumptions to make. You should not assume it is okay to talk about the employer’s “discrimination” unless you have reviewed and understand the legal standards, and know that what you’re saying is important under those legal standards. For most unemployment law standards (including discharge-for-misconduct as mentioned above), it is not necessary to mention “discrimination.”

Here is a list of Wisconsin unemployment legal issues and standards, at Wisconsin’s Department of Workforce Development’s website.

If you have a WI unemployment hearing coming up, chances are the hearing will cover one or more of these listed legal issues/standards.

Please consider reviewing the legal standards (or having a WI unemployment attorney brief you about them) before you decide to tell the unemployment office that your employer was “discriminatory”, or before you otherwise bring up topics concerning what you feel the employer did wrong.

While it is understandable that such things may be on your mind– and may well be true in some instances– you do not want to be offering up information that the unemployment office will find unnecessary and/or harmful to your own case.

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:

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Don’t Play the Blame Game in Unemployment Proceedings

Workers involved in Wisconsin unemployment proceedings are often tempted to play the “blame game.”

Human instinct may tell you that it’s important to tell the unemployment interviewer or judge your opinions about what the employer did wrong.  For example, say a worker was fired because the employer said the worker was “falsifying formwork,” and the employer is challenging unemployment, claiming the worker was fired for misconduct.

If the worker is playing the “blame game,” the worker may tell the unemployment representative these types of opinions/blame-statements:

  • The employer was at fault for not training the worker how to properly complete the formwork
  • The employer was at fault for not investigating the situation properly before flying off the handle and firing the worker
  • The employer was at fault for not firing other people who did the same thing (or worse) with formwork
  • The employer/manager/etc. do much worse things themselves — they set the building on fire, etc.

Okay, I’m exaggerating, but I hope you see the point.  Playing the blame game looks bad.

While there are times in an unemployment proceeding that a worker may be asked for FACTUAL information about what the employer did wrong– e.g. an administrative judge could ask a question like  “Did the employer train you how to complete that type of formwork?”, to which a worker could respond  “No,” if that’s the truth– this is a very different scenario than the worker being given an open-floor to rattle off instances where the employer dropped the ball.

It’s understandable that, if you’ve been fired or had your unemployment challenged for reasons that seem unfair, you FEEL the employer is to blame. But if you SPEAK to an unemployment representative from that mindset, i.e. if you’re playing the blame game, that is usually a losing game for workers in unemployment proceedings.

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:

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Appealing WI Unemployment Initial Determination– Be Careful When Stating “Reason” in Your Appeal Form/Letter

If you are a Wisconsin worker who lost your initial determination for unemployment benefits, the next step is to submit a timely appeal.  An appeal can be submitted online here, or via a letter.  When submitting the appeal, you should be very careful to follow the instructions closely, and to submit the appeal before the deadline.  The initial determination form you received will state the deadline, and the instructions for filing an appeal via internet or letter.

One mistake I see many WI workers make, is that they will state the reasons for their appeal in too much detail, and often volunteer details that are unnecessary or even harmful for their case.

For example, I have seen some workers’ appeal letters (or internet form boxed like that above) state something like this for reasons for an appeal : “Appeal Reason: My employer lied, and targeted me for a discriminatory termination… [followed by paragraphs or pages of explanation about why the employee is in the right, the employer is in the wrong, etc.]…

Usually, statements like this are irrelevant and a bad idea.

Please consider the article information below before you write down reasons for your appeal…

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:

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Unemployment Advice– Good Times to Seek It (and Not Be Too Late)

If you are a Wisconsin worker seeking unemployment benefits, you may be considering the idea of getting an attorney versus not getting an attorney.

I am not writing this point to convince you to get an attorney like me– despite my self-interest in having people retain me, I understand that’s a decision for only you  to make.

However, I will say that the timing of when you make that decision (if you’re going to make it) is important.

Sometimes, workers will call me and tell me they are interested in retaining me, but they are at such an advanced point in unemployment proceedings and/or have had preventable problems occur that I tell them I can no longer give them my most beneficial advice and I should not be retained.

If you are considering whether or not to retain an unemployment attorney, please consider these points in time when it can be particularly helpful to get advice from an attorney:

  • Before you apply for benefits.

Most workers can apply for WI unemployment benefits and get the ball rolling without assistance from an attorney.

The State’s unemployment division has good, straight-forward website information here about filing an unemployment application.

However, on occasion a worker has discomfort or has issues (e.g. unusual circumstances and unemployment eligibility issue) that an attorney could be of assistance with.

  • Before you fill out written documentation that describes your job termination (e.g. a letter or discharge questionnaire where you describe your view of the facts about termination) and submit it to the unemployment office.

Employees often make mistakes on written formwork– e.g. write about irrelevant issues, cast blame or judgments about the employer– that contribute to a denial of benefits and make me cringe as an attorney when I read it later.

An attorney could often help with such formwork, although a worker’s errors in completing the forms are usually not fatal, and there are certainly later points the worker could win unemployment benefits and an attorney could be effective.

  • Before you have a phone interview with an unemployment representative.

The phone interview is common occasion where an employee often makes mistakes, and can benefit from legal advice.  With that said,  many workers do not seek out legal advice at this pre-interview stage, although some will read articles on the State’s unemployment website or on this blog.

Here are some articles I’ve written that are pertinent to preparing for a phone interview: Three Rules for an Unemployment Interview or Hearing , Unemployment: The Legal Decision-Maker Isn’t Your Friend (Or Enemy), and Employee Tip: Filing for Unemployment in WI; Preparing for Appeal and Hearing.

Also, there is a blog page here that lists links to all my unemployment-related blog articles.

These articles talk about factors to consider before a phone interview, but they do not provide legal advice (for which you’d need to talk to an attorney about your specific circumstances).  If you spoke to an attorney before your unemployment phone interview about your specific circumstances, an attorney could provide legal advice about which facts and issues are most important, and advice about how you should prepare for your particular phone interview.

  • Before your unemployment hearing.

If you are going to talk to an unemployment attorney, then the time to do it is definitely before you have a hearing.

Once an unemployment hearing has occurred, that event has locked into place the case’s  “record”– the recording of all the testimony and documents/exhibits for the matter.  Once this record is established at the hearing, the parties are stuck with it.  If a party loses and appeals, they must base the appeal on the record, and cannot introduce new evidence.

An attorney can be far more effective in helping a worker before the hearing, and before the record is created.  The attorney can help prepare for the hearing, and its anticipated witnesses, testimony and exhibits. An attorney can help a worker be sure that the hearing, and the record, contains the facts and evidence that are supportive of you.

It is common for me to get a call from a worker who has lost their hearing, did not like that result, and decides at that point an attorney could be of help with appealing the hearing result.  But at that point, the attorney is stuck with the record and with whatever problems occurred leading up to it.

Of all the stages above, the unemployment hearing is a critical juncture.  If you are going to talk to an attorney, best to do so before the hearing.

With that said, a worker can always contact an attorney at any time (never say never), and workers can and have won appeals of hearings that were lost.  But the more time that passes, and the more events above that come and go, the less assistance there is that an attorney could potentially offer.

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:

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Three Rules for an Unemployment Interview or Hearing

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: Be truthful.

These rules sound simple, right? They are easy enough to understand.  But it can be very hard to follow
them all.  For example, being truthful (#3) involves not lying.  Should be simple enough not to lie.  But if you volunteer extra information you weren’t asked for (violating #2), the legal authority may think you are lying or being evasive, because you’re not giving the information requested.

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

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 above does NOT respond directly to the question presented.  This kind of answer– no matter how true its components may be– is 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 (rule #1).  If you listen to exactly what is asked of you, then it’s easier to precisely answer only what’s asked (rule #2) and to be truthful (#3).

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 thought and practice until employees 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 follow 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.

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:

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Polite Hearings, and the Distinction Between the Person and His Conduct

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.

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Unemployment: The Legal Decision-Maker Isn’t Your Friend (Or Enemy)

Angry judges and steadfast court reporter
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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.

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:

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