Joel Dillard & Associates

Representing Working People

Unemployment benefits hearings:

A do-it-yourself guide

In Mississippi, employees who have worked more than six months likely qualify for unemployment benefits if they lose work. But winning them can seem intimidating - particularly after getting a denial letter from the unemployment investigator. That is not the end of the road. Many people successfully win their unemployment benefits after an initial denial, and they do it by themselves using the telephonic appeal process with the Mississippi Department of Employment Security (MDES).

The good news is that most people can successfully represent themselves in an unemployment appeal.

The law governing unemployment benefits

Employees who are fired are usually entitled to unemployment benefits unless the employer can prove that they fired the employees for misconduct. Layoffs, being left off the schedule, and even deep cuts in hours can trigger eligibility for benefits if sufficient pay is lost.

To prove serious misconduct, the employer's burden can be steep. The employer usually must prove either (1) that the employee did something obviously improper, like getting into a fist fight with co-workers; or (2) that the employee violated a written employer rule after clear and specific notice of the rule, as well as notice that termination was a consequence of violating it.

Employees who quit are usually not entitled to unemployment benefits unless they can prove that they left for good reason. This (usually) includes quitting in lieu of a demotion or termination. This (sometimes) includes quitting to avoid very serious harassment. The challenge in these cases is that it is up to the employee - rather than the employer - to prove the case.

For more information on the legal standards, this is probably the best source.

The procedure

There are three key procedural points.

First, employees are required to appeal a denial of unemployment very quickly. The appeal usually must be filed withing two weeks of the investigator's decision. Luckily the appeal request process is easy, and employees can appeal the decision by mail, fax, in person at any WIN job center, or even with a phone call. The instructions should be on the determination letter. Employees that do not timely appeal, usually cannot win benefits.

Second, showing up is half the battle. Both employee and employer will receive a written notice of a hearing date. The hearing is held by phone, and the employee and employer need to be ready to go when the time comes.

Many cases are won simply because one or the other side does not bother to show up for the hearing. Employees should always consider an appeal, even if winning is not certain, because there is a decent chance the employer will not show up to the telephone hearing.

Third and finally, note that anyone that wants to rely on documents in the hearing must send copies of the documents to both the MDES AJ and the other people listed on the hearing letter - and must do so in advance of the telephone hearing.

This is crucially important: if the employer tries to read from documents, testify about documents, or introduce documents into evidence at the AJ hearing and the employee didn't get a copy in advance, the employee can object - which just means telling the judge that the employee does not think the employer should be able to use those documents because the employer did not send them to the employee before the hearing. This includes documents that employer gave the employee at another time - if they didn't specifically give notice of using them at the hearing, then the employee can object.

The same is true for witnesses testifying about things they did not see, hear, smell, touch, etc. If an HR person tries to testify about misconduct that she did not personally witness, the employee can object to her testifying about hearsay, or without personal knowledge. Employees can point out to the judge if the witnesses for the employer did not actually witness the relevant events. This is also a common way these cases are won by employees.

By the same token, employees should be ready to go with their own witnesses testifying to what they saw and heard. This includes the employee's own testimony. If the employee did not get an employee handbook with notice that this was a fireable offense, it is possible that the employee could win the case by pointing that out.

No lawyer necessary

Employees should not be afraid to contest unemployment. Employees can represent themselves, and they often win for procedural reasons.


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