This document provides an overview of unemployment compensation claims defense presented by Ignacio Garcia. It discusses preliminary issues employers may face, such as independent contractors claiming benefits. It also summarizes strategies for contesting claims, including addressing employee eligibility, reasons for separation like layoffs or voluntary quitting, and proving willful misconduct. The document concludes with reasons why employers lose hearings and important points to strengthen an employer's case.

1. Unemployment Compensation:
Preliminary Issues & Claims Defense
PRESENTED BY:
Ignacio J. Garcia, Esquire
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
100 North Tampa Street
Suite 3600
Tampa, FL 33602
Phone: 813.289.1247
Fax: 813.289.6530
Iggy.garcia@odnss.com
www.ogletreedeakins.com

2. Preliminary Issues
 How to address employees opting for
unemployment compensation:
● Independent contractors
● Minimum wage position
● Consistent fighting

3. Preliminary Issues
 Stimulus effects:
 Extended benefits
 $418 million from 2009 American Recovery and
Reinvestment Act
 Begins on February 22, 2009
 Qualify
- Exhausted unemployment on February 22, 2009
- Retroactive
- Ends January 2, 2010
- Up to 20 weeks

4. When to Contest an Unemployment Claim
– General Principles
 WHY was the employee separated from employment
 WHAT documents do you have to substantiate the
separation
 WHO can testify about the separation reasons
 HOW likely is the former employee to bring some other
action against the employer

5. Claimant’s Eligibility
 Financial Eligibility
 Able for Work
 Available for Work

6. Separation Issues: Layoff/RIFs
 Lack of Work
 Employee’s Refusal of Suitable Work

7. Separation Issues: Voluntary Quit
 Basic Premise
 Burden of Proof – Claimant
 Voluntariness
 Good Cause
 Voluntary Leaving or Discharge?
 Voluntary or Forced Resignation?
 Revoking a Resignation
 Job Abandonment

8. Separation Issues: Voluntary Quit
 Domestic Circumstances
 Conditions of Employment
 Child Care
 Health Reasons/Disability
 Other Employment
 Relations with Co-Employees
 Transportation
 Spouse Military Transfer

9. Separation Issues: Willful Misconduct
and Poor Performance
 Basic Premise
 “Misconduct” is more than ordinary negligence
 Intentional or controllable acts or failures to take action,
which show a deliberate disregard of employer’s interest
 “Misconduct” is not the same as “poor performance”
 Poor performance usually not a disqualification unless it
constitutes violation of a company policy that the
employee was aware of

10. Separation Issues: Willful Misconduct
and Poor Performance
 Willful misconduct may be found in these
circumstances:
 Disregard of the employer’s interest
 Deliberate violation of the employer’s rules
 Disregard of standards of behavior
 Some action greater than “ordinary” negligence

11. Can You Prove Willful Misconduct?
 Consider what rule, standard of conduct or employer
interest is at issue
 Consider the employee’s actions, intent and history
 Consider how other employees engaged in similar
conduct have been treated
 Consider the reasonableness of the employee’s action in
light of “all the circumstances”

12. Other Requirements for Proving Willful
Misconduct
 Conduct was connected with work
 Conduct was material to employment
 Burden of proof is on employer

13. Willful Misconduct – Employer’s Burden
of Proof
 The employee intentionally engaged in conduct
 The conduct was detrimental to employer’s interest
 The conduct was material to the work
 The conduct violated a standard which was uniformly
and consistently applied by the employer
 The standard violated was reasonable

14. Proving Willful Misconduct – Other
Considerations
 Did the conduct result in immediate dismissal?
 Did the termination result from an accumulation of
warnings?
 Is there a grievance procedure in place?

15. Willful Misconduct – Specific Issues
 Absenteeism and Tardiness
 Attitude
 Carelessness
 Working Conditions
 Dishonesty or Falsification
 Licensure Issues
 Workplace Violence/Fighting

16. Willful Misconduct – Specific Issues
 General Incompetence
 Insubordination
 Use of Intoxicants
 Language
 Medical Leaves of Absence
 Refusal to Work Overtime

17. Willful Misconduct – Rules Violations
 The employer generally must prove:
 The existence of the rule
 The claimant was aware or should have been aware of the
rule, and that her actions would violate it
 The rule is reasonable
 The rule has been violated
 The rule has been uniformly enforced
 The claimant must justify violation of rule by
proving good cause

18. The Unemployment Hearing –
General Rules
 Subpoenas
 Conduct of the hearing
 Rules of evidence
 Telephone hearings

19. Employer’s Steps Before the Hearing
 Read the notice thoroughly
 Make sure of the phone number and the start time
 Review the file
 The hearing may not start on time
 If a key witness can’t attend, request a
postponement

20. Employer’s Steps Before the Hearing
 Subpoena necessary witnesses
 Review the case with your witnesses beforehand
 Provide copies of any documents you want to use

21. At the Hearing
 Listen to and follow the instructions given by the
Hearing Officer
 Speak only when called upon unless you have a legal
objection
 Present first-hand testimony only
 Be respectful to the Hearing Officer and the claimant

22. At the Hearing
 Offer stipulations
 Avoid irrelevant or cumulative testimony
 Do not ask your own witness leading questions (ok for
claimant’s witnesses)
 Make sure your witnesses and evidence are ready
 Don’t argue with the claimant; just present testimony,
ask questions

23. At the Hearing
 Don’t get overly concerned with the burden of proof
 Make your company the “more attractive” party
 Have witnesses with first-hand knowledge
 Have written documentation
 Show what you did to try to preserve the employment

24. At the Hearing
 Make sure proper issues are heard, and preserved for
appeal
 Beware of collateral concerns
 Credibility: the substance of a response and how made
 Make a closing argument connected to the hearing facts
 Remember the intent of the law

25. At the Hearing
 Limit cross examination to that needed
 It’s ok to say “no questions”
 Don’t offer cumulative/repetitive testimony
(rebuttal ok)
 Don’t argue with claimant or her counsel; direct
comments to the Hearing Officer
 Don’t argue with the Hearing Officer: accept rulings
made and move on

26. After the Hearing
 If you want to appeal, follow the instructions
provided and do so promptly – 20 days

27. After the Hearing
 Get legal help to file an appeal
 If employee has or is expected to assert additional
claims against the employer, ask unemployment
tribunal to preserve the recorded testimony

28. After the Hearing
 Determination/fact findings may be used, in some
states, against the employee in subsequent litigation
 Sworn testimony during unemployment proceeding
generally allowed for impeachment in all states

29. Important Points for the Employer’s Case
 Inability to perform to the employer’s satisfaction or
expectations is not willful misconduct
 The final incident in a discharge is pivotal
 Know when the final incident occurred and what
happened

30. Important Points for the Employer’s Case
 Have a written policy for infractions leading to
discipline; employee should sign acknowledgment of
receipt
 Follow the policy and administer it uniformly
 Have employees acknowledge receipt of updated
handbook
 Provide appropriate warnings: “Your job is in jeopardy”

31. Important Points for the Employer’s Case
 Document infractions at every step of discipline with
signed employee acknowledgment
 Discharge promptly after the final infraction occurs
 For voluntary resignations, address employee’s concerns

32. Reasons Employers Lose Unemployment
Hearings
 Opposing legitimate claims
 Not timely responding to notices from the UC
Service Center
 Assuming benefits will be denied just because of a
discharge
 Not attending hearing
 Not being prepared for hearing

33. Reasons Employers Lose Unemployment
Hearings
 Not knowing what the required showing will be
 Not understanding that the burden of proof is on the
employer
 Getting bogged down in immaterial details
 Failing to contradict claimant’s theory of the separation

34. Reasons Employers Lose Unemployment
Hearings
 Failing to anticipate issues which may come up at the
hearing
 Failing to have corroborating documentary evidence
 Focusing too much on “Right” and “Wrong,” instead of
“Proven” and “Not Proven”
 Failing to show what they did to preserve the
employment

35. Reasons Employers Lose Unemployment
Hearings
 Failing to show why other employees engaged in
similar conduct were treated differently
 Failing to recognize that the final occurrence is the
most important one
 Failing to present first-hand testimony
 Failing to have legal representation when the
employee does, or failing to have skilled
representation

36. Unemployment Compensation:
Preliminary Issues & Claims Defense
PRESENTED BY:
Ignacio J. Garcia, Esquire
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
100 North Tampa Street
Suite 3600
Tampa, FL 33602
Phone: 813.289.1247
Fax: 813.289.6530
Iggy.garcia@odnss.com
www.ogletreedeakins.com