Most Common Mistakes At The Hearing
 
  1. The Employer Has The Wrong Witness
    The testifying witness did not see or hear the event but heard it from others.  This is hearsay and such evidence will be given little or no weight at the hearing.  The exception is when the case depends entirely on documents (such as in a clock-in clock-out scenario that involves employee time records.  In that case you will need someone familiar with how these records were prepared or maintained) .  

    See
    Subpoenas  When The Witnesses Are No Longer With The Company.

     
  2. Employer Tries Too Late To Postpone The Case
    Don't wait until you learn of the hearing to ask for a postponement. Find out all possible unavailability dates immediately once the appeal for the hearing is filed. This means immediately learning who your witnesses are and checking for the days they'll be on vacation, at business meetings, or in seminars, training, etc.
     
  3. Attendance Problems Are Poorly Documented
    Reasons for the absences or tardies should be documented even if the employer has a no fault attendance policy.  Employers come to the hearing not knowing why the claimant was absent and the claimant then says the problem was due to illness.  Since the employer has the burden of proof in a
    Discharge, the claimant wins.

    See  Types Of Documents
     

  4. Employer Does Not Have Documents Readily Available
    Have your records arranged so you can testify from them with a minimum of searching. Hearing officer's have an extremely high case load and are under great pressure to hear cases swiftly. Don't infuriate them with your lack of organization.   An angry hearing officer can cost you the hearing.
     

  5. Documents Without The Witness Who Prepared Them
    Submitting the document is not enough. You must have the witnesses at the hearing to explain the documents or itĺs hearsay.  One exception is for business records that were prepared at or near the time of the event in question.  If the record was prepared routinely and in the normal course of business, you will still need a witness familiar with how these records were prepared or maintained.  For other exceptions

    See Document Exceptions

    See
    Subpoenas

     

  6. Claimant Never Warned Their Job Is In Danger
    Absent gross misconduct like theft or sabotage, the claimant should always be warned their job is in danger.  Failure to give such warnings will often cause the employer to lose the case.
     

  7. Employer Waits Too Long To Do The Discharge
    Absent extraordinary circumstances, the employee should be fired within a week of the final incident.  Otherwise it will look like the employee was fired for a hidden reason or allowed to work at the employer's convenience.  Failure to fire promptly may result in the employer losing the case.  Note: the employer should avoid keeping the employee for an extra few days as it will appear like this is solely for the employer's convenience.  Hearing officer's are instructed to rule against employer's if this is found to be the case.

    Also, final warnings must be final! Don't keep warning an employee they're about to be discharged.  Instead, give them one more chance and then fire them.  If employers allow the bad conduct to go on for too long, they will lose  the right  to cry foul at the hearing.
     

  8. Employer Proves Inability Not Fault (Poor Performance Cases)
    The employer must show that the employeeĺs poor performance was due to circumstances within his control.  Emphasis is wrongly placed on the employeeĺs poor performance and not on the specific rules and policies violated.


    Donĺt flood the hearing with evidence of only the claimantĺs poor performance.  Instead, show how the claimant met the standard in the past and then slacked off.  Or, show how his performance was due to a problem that was within his control.  Examples include goofing off, poor attendance not due to illness, failure to prepare for the exam or certification, or any other failure to perform set, non-discretionary duties set by the employerĺs rules or policies. Note: If you can show the claimant lied on his resume, it will only help if your rules indicate such could result in immediate discharge.
     

  9. No Signed Job Description From The Claimant
    This is especially important in
    poor performance cases where the claimant says the disputed task was never in his job description.
     

  10. The Employer Keeps Adding To Why The Claimant Was Fired
    Every hearing officer hates a witness who can't make up his mind. A waffling employer has no credibility.   So stick to the reasons you give at the start of the hearing and don't add more as you go along! Tacking on more reasons just shows  insecurity about the case.  Either that or the employer is extremely forgetful.  And an employer who "forgot to mention it", probably didn't fire the claimant for that reason anyway.

    Instead, be organized and concise. For example:  "The claimant was fired for reasons "X" "Y" and "Z" and for events "P""D" and "Q."  Get the common themes, important events and dates out all at once. You'll have time to fill in the details later.
     

  11. Temp Agency Says The Claimant Quit But The Claimant Is Still On Their Roster
    The employer loses all credibility when they say one thing and do another.  If the claimant really quit, be consistent and remove him from your availability list.  
     
  12. Employer Handbook Has No Chain Of Command
    Very Important For Quits. The employer needs to have one in place and explain that the claimant quit without following it.
     
  13. Claimant Fired For Mixed Reasons and Last Incident Either Petty Or Hard To Prove.
     
  14. Employer Fails To Appeal Each Decision
    The employer should never file a blanket appeal if there are two or more issues or two or more decisions from the claim's examiner. For example: If there was a decision against the employer on the discharge and a separate adverse decision on severance, the employer should appeal both decisions and reference both issues. If the decisions were issued on different dates, then two separate appeals should be filed.  A failure to do so may mean the employer could lose the right to challenge one of the decisions, i.e. the employer could challenge the severance or the discharge, but not both.
     
  15. Employer Has No Idea How To Behave At The Hearing
    For a good guide to conducting oneself at the hearing, see section IV On Hearings (page 15) at http://www.dtae.org/hr/handbook.doc

For Further Reference See:

Doing It Better Next Time (Employer-SOS)
Learn how not to lose at your next hearing.

Unemployment Insurance Appeals (GA Dept Of Labor)
A Must Read Summary of what employers should know before, during and after the hearing.

GA Employee Handbooks-Drafting and Enforcing Sound Procedures and Policies
What should be in every handbook.

The Unemployment Handbook (by Sheakley Uniservice)
See pages 6-17 for cost control procedures and what to do at the hearing..

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Order Of Testimony, Cross, Rebuttal And Closings (When Employer Is 1st)

  

EMPLOYER

ER REP  Hearing Officer  (IF ER Rep wonĺt be testifying, go to ER witness # 1)
              
ER REP (Asked if anything else to add relevant to the case)
              
CLAIMANT (Allowed to cross examine/ask questions)

ER Wit#1Hearing Officer
              
ER REP (May question his own witness)
              
CLAIMANT (allowed to cross examine/ask witness questions)

ER Wit#1Hearing Officer
              
ER REP (May question his own witness)
              
CLAIMANT (allowed to cross examine/ask witness questions)

(Repeat For All Employer Witnesses)
________________________________________________________________________

CLAIMANT

Claimant Hearing Officer
             
Claimant (Asked if anything else to add relevant to the case)  
             
ER REP (allowed to cross examine/ask witness questions

CT Wit#1Hearing Officer
              
Claimant (May question his own witness)
              
ER REP (allowed to cross examine/ask witness questions)

ER Wit#1Hearing Officer
              
ER REP (May question his own witness)
              
CLAIMANT (allowed to cross examine/ask witness questions)

 (Repeat For All Claimantĺs Witnesses)
------------------------------------------------------------------------------------------------------------
ER REBUTTAL
CT REBUTTAL
CLOSING STATEMENTS (Claimant first, then Employer)

Back To Discharge

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Order Of Testimony, Cross, Rebuttal And Closings (When Claimant Is 1st)

 CLAIMANT

 Claimant Hearing Officer
              
Claimant (Asked if anything else to add relevant to the case)  
              
ER REP (allowed to cross examine/ask witness questions

CT Wit#1Hearing Officer
              
Claimant (May question his own witness)
              
ER REP (allowed to cross examine/ask witness questions)

CT Wit#2
Hearing Officer
              
Claimant (May question his own witness)
              
ER REP (allowed to cross examine/ask witness questions)

(Repeat For All Claimantĺs Witnesses)

EMPLOYER

ER REP  Hearing Officer  (IF ER Rep wonĺt be testifying, go to ER witness # 1)
              
ER REP (Asked if anything else to add relevant to the case)
              
CLAIMANT (Allowed to cross examine/ask questions)

ER Wit#1
Hearing Officer
              
ER REP (May question his own witness)
              
CLAIMANT (allowed to cross examine/ask witness questions)

ER Wit#2Hearing Officer
              
ER REP (May question his own witness)
              
CLAIMANT (allowed to cross examine/ask witness questions)

(Repeat For All Employer Witnesses)
------------------------------------------------------------------------------------------------------------
CT REBUTTAL
ER REBUTTAL
CLOSING STATEMENTS (Employer first, then Claimant)

Back To Quit
 

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Rebuttal

The time when parties can comment on testimony they disagree with that is material to the case. While the other side is testifying you cannot interrupt them. Be sure to write down whatever you disagree with so you can bring it up during rebuttal.

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Closing
The time to make a summary statement on the strengths of your case. Your closing statement should comment on the evidence presented and explain why you should win. Pretend that the hearing officer has already written the decision and it came out just as you had hoped for.  Ask yourself  how this decision would sound.  That should be your closing argument.

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Postponing A Case
Too many cases are lost because the employer couldn't get a postponement. And the sad thing is, that if the employer acted sooner their request could have been granted.  Most requests occur (and are denied) because they were  made only after the hearing had already been scheduled.  However, the best approach is to tell the DOL of your blackout dates before the hearing is scheduled.  In other words, immediately after you learn an appeal has been filed.

A typical employer gets notice of the hearing, wakes up from their coma, and suddenly realizes their key witness will be on vacation or at an important seminar or business meeting. They then file for a postponement; usually on the basis that they have an important business engagement. This is way too late. The DOL almost never grants a postponement once the date of  hearing is set,.  Especially when the reasons are based on something the employer could have anticipated such as a scheduled business meeting, training seminar or planned vacation.

When  Postponements Will be Granted

Note: The mere filing of a request means nothing.  Too often employers think they'll get a postponement if the request is filed by their lawyer. This is a tragic mistake. If you don't hear back from the DOL, assume the case will go on as scheduled. 

Also, the parties must clearly demonstrate that it was beyond their complete control to be able to come to the hearing. In other words, there must be providential reasons for their failure to participate.   

Further, itĺs not enough that the employer notified the DOL in advance of a conflict.

GA Dept Of Labor Rule 300-2-5.02(5)  says:

A postponement of the hearing may be granted upon request showing providential cause will prevent the attendance of the party or essential witnesses.  A request for postponement must be made at the earliest practical time and must be made in writing or by facsimile transmission. In the absence of very unusual circumstances a business engagement will not constitute good cause for postponement.  Such requests may be granted or denied at the discretion of the Chief Administrative Hearing officer.

 *Business Reasons

Conflicts should be mentioned to Appeals within 4 weeks of receiving notice of the other sideĺs appeal.  When an appeal is filed, the Department sends the other side notice of such within a week or less.  Sometimes itĺs within 2 days.*

 DOL Rule 300-2-5-.02 (2) (a) states:

 If any party anticipates a conflict with any possible hearing dates within the next 4 weeks after the receipt of notice from the Department that an appeal has been filed, that party should immediately notify the appeals tribunal of the date(s) of unavailability.  Once a hearing has been scheduled, postponement or continuation of the hearing is within the discretion of the Chief Administrative Hearing Officer.*

See Witnesses Who Cannot Be Present For The Hearing

See Notice Of Hearing

See Most Common Mistakes At The Hearing  

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Poor Performance-Lying About Prior Credentials

Don't allege misrepresentation unless you're seriously ready to back it up. Otherwise, the employer just looks mean and you'll lose all credibility.

And again, you won't win unless you show the claimant knew about the rule, i.e. it was clearly established in the employer handbook or employment application.

Clear Cut Cases Of Misrepresentation
The employer's strongest case is when the employee's prior credentials give him no excuse for not being able to do the job.

For example: certain forms or methods of doing a job are standard throughout the country. Procedures for ordering Medicaid forms, tax forms, or college transcripts are unlikely to vary much from employer to employer.

On the other hand, some positions sound identical in name
but may in fact involve different job duties, skills or abilities.   For example, the duties of a marketing director, loan processor or paralegal may vary from company to company or state to state. Thus, without more, the employer has a weak case if they try to show the claimant lied and really never held this position.

Proving Misrepresentation On a Resume
The key is showing the claimant never had the skills in the first place and would have had them if he was telling the truth about his prior experience. The employer always has the burden of proof and must be prepared for any excuses raised at the hearing.  Common excuses range from  "I didn't have enough training" to "I had trouble with the employer's computer system."

Counter "lack of training" excuses with testimony from the claimant's trainer or a signed log in sheet showing the claimant attended the training seminar or received the appropriate instructions.

If the the claimant performed poorly in other areas unaffected by your computer problems, be sure to mention them.  Show the hearing officer that anyone with the claimant's prior experience should have been doing fine.

What To Bring For The Hearing

bullet

The standard form (Medicaid,  Insurance, trademark form, etc.) that the claimant had trouble with; (Show how this form or procedure is standard throughout the country);

bullet

A copy of the employer's rule on misrepresenting credentials;

bullet

The claimant's resume and/or cover letter (if available);

bullet

The job description presented at the time of hire;

bullet

Testimony from the person who interviewed the claimant for the position;

bullet

Testimony from the people who trained the claimant to do the job;

bullet

Signed acknowledgment forms showing the claimant received the proper training or instructions.

Poor Performance

Most Common Mistakes At The Hearing  

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