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Dealing with the UI claim and appeal
process
BY CHAIRMAN TOM PAUKEN
TEXAS WORKFORCE COMMISSION
As chairman of the Texas Workforce Commission and the commissioner who represents employers at TWC, I have been invited to respond to the articles in the January 2009 issue that highlight the troubles some employers have had with the UI claim and appeal process. The articles detail so many difficulties that it is impossible to respond to all of them in the short space available here, but I think it will be helpful to cover the most important things that employers can do to protect themselves in a complicated process. Most of these rules are dictated by federal and Texas law and court cases.
1. Maintain good documentation of problems noted and corrective action taken, include such records with your claim response, and use the critical documents as exhibits at the appeal hearing.
2. Document the fact that you responded to the claim notice, and any adverse rulings, in a timely manner.
3. Let your firsthand witnesses talk to the claim investigator at the initial stage, and present them at the appeal hearing. More cases are lost due to lack of firsthand testimony than for any other reason.
4. Claim responses should be as specific as possible and focus on the final incident and final warning.
5. Study the claimant’s statements in the documentation packet for the appeal hearing and try to anticipate what the claimant will say in order to justify benefit payments. Be ready with witnesses or documentation to counter such arguments.
6. Always emphasize the fundamental things that an employer must prove in any discharge case: a) the discharge resulted from a specific final act of misconduct that happened close in time to the discharge (final incident); and b) the claimant either knew, or should have known, he or she could be fired for such a reason (final warning, or else a clear policy warning of discharge).
7. If the claimant gives unexpected (surprise) testimony that involves a witness you do not have ready, ask the hearing officer for an opportunity to get the necessary witness on the line. Ask for a continuance if necessary, and explain that you could not have anticipated that the claimant would say such a thing. Point out that it is only fair that you get a chance for rebuttal.
8. Keep the testimony of you and your witnesses as brief, concise, and factual as possible – hearing officers appreciate parties who are well-organized and in command of the facts. Do not cover the same ground twice. In a close case, that can really help.
9. Before claims arise, and even before you fire someone or an employee resigns, protect your company as much as possible by calling my legal staff at 1-800-832-9394. My attorneys have decades of experience in helping employers navigate the UI system, understand which claims are winnable and which may not be, and prevent risky situations from getting worse.
10. Finally, employers should take advantage of the resources available through my office: particularly the book Especially for Texas Employers, online at
www.twc.state.tx.us/news/efte/tocmain.html, which covers in detail not only the best strategies for dealing with UI claims and appeals, but also state and federal employment laws addressing all phases of the employment relationship; the quarterly newsletter Texas Business Today (subscribe via
employerinfo@twc.state.tx.us); and the Texas Business Conference seminars we hold throughout the state each year for employers.
Keeping the above in mind should make a real difference in how UI cases turn out. My office stands ready to help employers in any way possible under the law.
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