If you’ve ever had to terminate an employee in California, you know that the Employment Development Department (EDD) often defers to the employee’s position and grants unemployment compensation. Most employers fail to challenge these rulings but should know that an estimated 50% of unemployment awards are overturned on appeal. The unemployment tax rate you pay is based on the amount of unemployment claims against your account. It’s in your interest to challenge claims that you feel are undeserved.
When an employee is terminated in California, by law he or she can file an unemployment claim with EDD. That claim application is then sent to the employer with the employee’s statement of reasons for the termination. The employee’s recollection of the events may differ from the employer’s view (see our post on employee recollection) and the employer is given the chance to rebut the employee’s claim. The completed form is then reviewed by an EDD staff member who makes a determination about granting or denying unemployment compensation.
As mentioned above, EDD often defers to the employee’s position — it’s not uncommon to see an unemployment claim granted even when your version of the facts supports denial. If either party believes that the claim has been granted or denied in error, it can appeal the decision. If you decide to appeal an unemployment award, there are some tips you can follow to improve your chance of a more favorable ruling.
1. Read the documents provided for the appeal process both by the EDD and comply with all filing deadlines. In our experience, the employer must adhere to the deadlines — miss one and you lose — while employees are provided more leeway.
2. Understand that the appeal will be held before an administrative law judge and will be recorded. The process is similar to a court hearing but will likely be held in a conference room or office. You and the other parties will be sworn is; all statements will be made under oath.
3. Organize your facts and supporting documents. Develop a timeline of the circumstances surrounding the termination, including key events, persons involved, acknowledgements and counseling forms. You will be provided the employee’s view of the events in advance of the hearing and will likely see claims by the employee you will need to address — “I was never warned”, “They allow others to do what I did”, “There’s no policy…” etc. Make sure to collect the policies, acknowledgements, counseling forms, etc. that debunk the employee claims.
4. Consider bringing witnesses. In our experience, EDD appeals judges limit the number of participants but if there’s a compelling witness (co-worker or manager directly involved in the final incident), bring them. Make sure the witness knows what his/her role is and limits his/her commentary to relevant facts.
5. Outline your thoughts. Even though it’s less imposing that a courtroom, it’s easy to be nervous or intimidated by a judge asking for your version of events. Outline your thoughts in advance and have supporting documents arranged for easy reference.
6. Present your exhibits to the other side. Prior to the appeal hearing, you’ll be asked to provide the employee with any documents you intend to use. Have copies for him/her, but limit the documents you intend to use to the ones most compelling and supportive of your case. In our experience, less is more.
7. In the hearing, present the facts as they occurred and answer the judge’s questions. Do not embellish to support your position. Reference your exhibits where appropriate.
8. In your commentary, avoid generalizations and hyperbole like “They always….”, “She never…”, etc. and reference hard documents. Nothing ruins credibility like generalization which won’t hold up to scrutiny. “We warned Ms. Jones about her attendance issues on Jan 18th, May 3rdand April 5th and confirmed her understanding of our time/attendance policies…” is more compelling than “She was always late…”
9. Be respectful. Address the judge as “Your honor” and all parties with courtesy. You’ll likely be given the opportunity to ask questions of the employee and the employee of you. Be polite in all questions and answers even if the other parties seem abrasive or confrontational. Contain your inner TV prosecutor — your “gotcha” moment won’t be as effective as you might think. Just present facts and documents and point out how the employee’s behavior conflicts with your policies and procedures.
10. Summarize your position. At the end of the hearing, the judge may ask you if you have anything else to add. This is your opportunity to summarize your position. Have your points listed for easy reference. Take advantage of the opportunity to recap your case but keep it brief and factual.
Once the parties have presented their positions, the judge will take the item for consideration and contact both parties with the ruling within a couple of weeks. Trust that your presentation and documentation have done their work, but manage your expectations. In California, the burden is almost always on the employer to rebut the employee claim and prove its position.
Conclusion
You’ll dramatically improve your chances for a favorable result with a solid timeline of events and supporting documents.
HR PaperTrailprovides employers with an easy-to-use set of tools to maintain employee records and document incidents and contact. All entries are presented in the employee’s record in reverse chronological order to provide an easy reference point. In the eyes of the court, if it’s not documented, it didn’t happen. On the other hand, when you have a chronology of relevant incidents that was prepared real-time…
About the author
Kyle Kirkland is President of Brick HR, Inc., the developer of HR PaperTrail documentation software. As owner, President and General Manager of Club One Casino in Fresno, California, Mr. Kirkland has extensive experience managing employees in gaming, food and beverage, facilities, security, administration and managerial positions. He has direct experience in dealing with the challenges California employers face and how to mitigate the related risk. Mr. Kirkland is also the president of the California Gaming Association, a non-profit trade association which represents California cardrooms.
Prior to joining the gaming industry, Mr. Kirkland served as the chairman of Steinway Musical Instruments, the world-renowned musical instrument manufacturer, a position he held for 17 years. Earlier in his career, Mr. Kirkland worked at Bain & Company, an international management consulting firm and Drexel Burnham Lambert, an investment bank specializing in high yield securities. Mr. Kirkland has served on the boards of several public and private companies and non-profit organizations.
Mr. Kirkland holds an A.B. degree from Harvard College magna cum laude in Economics and an MBA degree from the Graduate School of Business at Stanford University.
He can be reached at kyle@hrpapertrail.com.
