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April 4th, 2010 
James PetersThe New York Times recently published an article about the increased use of companies that specialize in contesting unemployment claims for employers.
We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers. This is both as a precautionary measure and a chance to obtain vital information at the outset of a case.
These hearings are conducted in front of an administrative law judge and under oath, so anything either side says can be used against them in later litigation. If you think that your termination was illegal and that you might pursue claims against the company, I urge you to contact an attorney as soon as possible before the hearing.
If you testify at an unemployment appeal hearing without being prepared you could cause severe damage to your claims without even knowing it. On the other hand, giving your attorney a chance to question the people who terminated your employment under oath without an attorney there to advise them is a tremendous opportunity.
I only started noticing companies like those mentioned in the NYT story in the last five years or so, but it is true that I have run into them more and more since the start of the country’s economic downturn. The most disturbing aspect of these companies is that they seem to contest every single claim filed against an employer, knowing that some employees simply will not appeal a denial of their claim or will not show up at the hearing to fight the employer’s appeal.
Whenever I see a case where an employer contests an unemployment claim without any reasonable basis for doing so, there is almost always one of these companies on the other side pulling the strings.
However, one interesting thing I have noticed is that these companies almost never attend the appeals hearing if they find out the claimant has a lawyer. To me this suggests that they do not even look at the merits of an unemployment claim unless they absolutely have to, which is a terrible thing to do to a former employee.
In some counties, these appeals do not go to a hearing until months after the paperwork is filed. Forcing an employee to go through a meritless appeal of their unemployment is a serious disruption in their life. Instead of focusing on finding a new job, they have to worry about whether they will not only lose their benefits, but also have to pay back the unemployment they have already received.
Many states have passed laws that curtail some of the abuses these companies engage in, but California has yet to pass such a law. Until then, employees should be vigilant in fighting for their unemployment and should not be intimidated if their employer tries to contest their claim.
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I don't know if its the same in California, but in New York they do show up at some of the hearings. This being said, we have been successful in contesting these cookie cutter denials. There is definitely purpose to the denials/ objections for even the smallest and pettiest of issues (or even completely fabricated issues). It's a numbers game. Some large fraction of claimants just will not file their appeal within 30 days of the denial.
The large companies listed in the Times article above (we link to that article on our website FAQ too) at least have the decency to back off the super-frivolous stuff once it gets to a judge. What I have noticed is more and more small employers using increasingly desperate tactics to attack claimants. In several cases they have presented contradictory reasons for challenging a claimants benefits (i.e. we offered the job back & claimant was discharged for misconduct) in the same hearing! And with blatant perjury!
Employers hold all the cards: The records, the witnesses, and all of the money. These cases are really David v. Goliath in the truest sense.
It is unfortunate that more attorneys won't consider taking some of these claimant's cases for issues such as defamation, etc. That would change the economic calculus that is being used in all of these bogus, and slanderous, challenges. Just one viable slander case, even if it didn't win, would give employers pause before making up bogus and petty charges against the claimants.
The biggest problem I have found is that companies do not know what qualifies or disqualifies claimants for benefits. They rely soley on cost management firms to make the call. As a result, they routinely contest benefits for things such as layoffs or an employees inability to do the job. These are examples of instances where the law is clear (at least in California) that the former employee qualifies for benefits.
I used to work at a company where the managers would actually falsify disciplinary action forms, get another manager to "witness" it, and then claim that the employee refused to sign the form.
At another company, they tried to tell people right in the handbook that "because we are an at-will employer, you will be ineligible for unemployment benefits if your employment is terminated for any reason, regardless of whether you terminate or the company does." That is actually not correct in ANY of the 49 at-will states.
I am speaking from a business point of veiw. I am against being unfair to employees and I feel that employers should always practice ethical behaviors. However, employees do not always practice ethical work habits. There are some employees who are not doing everythig they know to do, to be the best at their jobs. They are only doing enough to get a check. Even after giving several chances to improve, they continue to not put forth any effort. Then when they are terminated, they quickly file an unemployment claim. Unemployment is for when a person becomes unemployed at "no fault of their own". When you are not doing what you are suppose to do and you are terminated, then it is your fault why you have become unemployed. Therefore, businesses should contest a claim. Especially when they know that a former employee does not deserve unemployment benefits.
Clearly there are not many individuals with any small business experience creating policy in this country. It is almost impossible to win an unemployment hearing as an employer. I own a small business and every general manager I have ever employed has stolen large sums of money from my family by manipulating the cash handling records and procedures. In a recent case I was able to prove this with transaction records, video footage, and even a confession, among other very carefully prepared evidence. The hearing officer acknowledged that the employee was clearly stealing from the company. Because it took me several weeks to put together the evidence and find a suitable replacement, they ruled in favor of the employee. If anyone has ever had to support their family thru the operation of a small business they understand that it is not realistic to simply terminate key members of a small staff one day and continue to run effectively the next. The laws that exist effectively hold me hostage as an employer regardless of whether my employees commit criminal acts against me. I have resolved to simply let my employer rating soar thru the roof and pay thousand of dollars in additional taxes so that entitled, unappreciative, sociopaths can take an extended paid vacation.
We have a system that encourages poor performance by the masses and that stifles the entrepreneurial spirit that this country was built on. I treat my employees incredibly well and inevitably the more i give them the more they expect. This country has become about figuring out how to best work the system. Those who take the risk and create the jobs are left wondering why they don't fire their entire staff and join the "poor under-appreciated" masses in the hand out lines. If it was slightly more difficult to get unemployment the countries entitled lazy work force would work harder where they are employed and search harder for new opportunities to better themselves when they are transitioning. This would vastly improve the quality of our productive ability as a country.
But instead educated capable individuals such as those writing this blog are so far removed from the reality of this that they don't realize that they are actually helping to create and perpetuate a wide spread sentiment that will leave their children a country where there are no natural consequences, no jobs, and no future. The lower class workforce needs to be babysat and disciplined and they need a system that provides consequences.
It is the essence of what is wrong with this country.
Luckily we will all eventually suffer the natural consequence of this and enough damage will be done that policy makers will have no choice but to recognize that we have the worst labor pool in the world and it is the direct cause of the economic problems we are having.
So I have been denied 2 times for my benefits. My ex employer flat out told me that if I could not get there that he considers me quit and not to show up. I at the time was out of state about 4 to 5 hrs away. So I did not and tried for a yr to get a job. I had a family member on their death bed and a few days later after this incident she sadly passed away.... I admit i was there a short time but to fire me for a death in the family and then to lie about it beyond me.... What should I do?
@ Sweetpea - you should have filed a claim and if it were an immediate family member, you would have been covered under the FMLA act. Not sure if that would help now...but they wouldn't be able to fire you