The Second Part Of Unemployment Claims By Sam Schlein, A Top Columbus Employment Attorney
When we left things in Unemployment Claims in Ohio Part 1), a re-determination of your benefits has been made on paper. If either party appeals this decision, your case will be set for a hearing in front of a hearing officer from the Unemployment Review Commission (“URC”). These hearings will typically be by telephone, but at times will be in-person.
A hearing can seem intimidating at first. At this point, you may feel as though you have made your case to Unemployment endless times. You have already made an initial application for benefits, appealed an adverse decision (or your employer has appealed), and made a second appeal. However, with careful preparation you can obtain successful results. The following is an explanation of how I prepare my clients for this step in the oftentimes frustrating unemployment process.
The first thing you need to do to prepare for a hearing is to request your complete file from the URC. The file contains all of the information that both you and your employer have provided so far, as well as documents generated by Unemployment employees. This file will also be submitted to the hearing officer, who will use it to craft questions for both you and your employer’s representative. The simplest way of obtaining a copy of your file is to send an e-mail to Filecopy@jfs.ohio.gov. State your name, the date of your phone hearing, and the docket number found in the upper right hand corner of the hearing notice, and ask for the complete unemployment file. Although the URC typically responds within 72 hours with a link to your complete file, you should request a copy of the file as soon as possible to make sure you have it in time to prepare for your hearing.
If there are documents that are not in the file that would help you, such as positive performance reviews or awards that you may have won, it is important that you supply them to the URC ahead of your hearing. You can present documents as exhibits by labeling (marking the first page with a letter or number) and sending them to your employer and the URC. If these documents are received ahead of your hearing, they will become part of your file. You may want to send the documents by overnight or certified mail to confirm that they have been received. You should submit these documents as soon as possible, because if your employer and the hearing officer have not been given adequate time to review them in advance of the hearing, the hearing officer may refuse to consider them
You also have the right to request documents from your employer through the use of a subpoena. The subpoena will compel your employer to provide documents ahead of the hearing to both you and the URC. This can be done by sending a fax to the URC (614-387-3964) which includes your name, the hearing date, and the docket number. The fax should outline what documents you are looking for, such as your performance review from 2016, or your 10 year service award. You should be as specific as possible when requesting documents so that your employer knows exactly what to provide.
You also have the right to call witnesses to your hearing. There are two ways of doing this. The first is to simply ask former co-workers and others to appear on your behalf. You can also compel unfriendly witnesses and current company employees, such as your former supervisor, to testify by sending them a subpoena. Even if a witness agrees to appear voluntarily, it is best to send them a subpoena in case they change their mind. A subpoena may also help them in getting time off or work to attend the hearing. Subpoenas can be sent using the same process used for documents as described above, but you will need to include the witnesses’ name and contact information.
After you have received the file and all of the documents you requested, it is important to review them very carefully prior to your hearing. The hearing is an adversarial setting where you are presenting your side of the story to the hearing officer in the hope of persuading them that you are entitled to benefits. Your employer will present their argument that you are not entitled to benefits, for example that they had cause to terminate you. As an award of benefits impacts your employer’s unemployment insurance premiums, they may come to the hearing well prepared with information about why you should have been terminated. It is also possible that your employer will be represented by an attorney or unemployment expert.
The hearing itself generally lasts about 45 minutes and is conducted under oath. The hearing officer will start by questioning the party that brought the appeal, either you or your employer. For this example, we will assume that you brought the appeal, meaning that you go first. The hearing officer will begin by questioning you. At that point, you will be given to opportunity to give testimony and present exhibits. If you are represented by an attorney, your attorney will guide your testimony by asking you questions. Finally, your former employer will have the right to ask you questions.
You will then be allowed to call witnesses to testify. Before each witness has the chance to testify, the hearing officer will ask them a few questions to determine whether their testimony will be helpful to the hearing. Just because you have brought a witness to the hearing does not necessarily mean that the hearing officer will allow them to testify. If the witness is allowed to testify, both you and your former employer will be permitted to ask them questions.
Once you have called your witnesses, your former employer will make their case. They will offer witnesses, the hearing officer will question them, and then you will be allowed to ask questions.
After all of the witness testimony has been taken, both you and your employer will have the chance to make a brief closing statement. If you are represented by an attorney, your attorney will make the statement on your behalf. This is your opportunity to make your final argument as to why you are entitled to benefits.
At this point, the hearing will end. The hearing officer will then issue a written decision, which you will usually within two to three weeks. Although appeals can be made of the hearing officer’s decision, they are exceptionally difficult and rarely successful. Your best chance to win is at the hearing level.
The unemployment hearing process can seem daunting. Oftentimes, the party that wins the hearing is the party that was the best prepared. If you think that you need assistance, you can retain an attorney to represent you who knows what to expect at each stage of the process and who can properly prepare you.
Sam Schlein is an associate with the law firm Marshall and Forman LLC. He represents individuals in a wide range of employment issues, including unemployment claims.