Appeals on unemployment benefits skyrocket

How to make your best case

November 14, 2010|By Eileen Ambrose, The Baltimore Sun

It's a confrontation few people would want to face: The former security guard sat across the table from the employer who had pink-slipped him as they rehashed his firing. At stake was the payout of unemployment benefits.

Jobless workers are entitled to benefits if they lost a job through no fault of their own. In this case, the employer claimed that the man was discharged for absenteeism, while the guard admitted that he had missed work partly because of a drinking problem that he has been treated for since he was let go. Maryland had denied unemployment benefits, and the former employee appealed the case last week to a state hearing examiner.

Scenes like these are increasingly being played out in hearings across the state. Benefit appeals have soared in the past few years because of the weak economy and rising unemployment. For the year ended in June, the number of appeals in Maryland climbed to 55,744, more than doubling in three years.

To keep up with the workload, the appeals division has added 15 hearing examiners since last year, a 50 percent increase. And hearings are held six days a week instead of five.

Most appeals — 76 percent — are from workers. Workers can be out of a job for a long time, and benefits that run as high as $430 a week may be critical for putting food on the table or keeping up with a mortgage payment.

"In boom times … there are lots of jobs available, and you can reasonably expect to become re-employed in a short amount of time. You might skip the step of appealing if you are not initially paid," says Judy Smylie, director of the state's lower appeals division of the Department of Labor, Licensing & Regulation.

Not today.

The stakes are high for employers, too.

Employers fund the unemployment insurance pool based on sliding scale. The more layoffs they have or firings without good cause, the more they must pay into the system. Employers with little turnover contribute $187 a year for each worker earning $8,500 or more. That gradually rises to a maximum of $1,147.50 per worker annually.

"In these economic times, that could be the difference between making it and not making it" for a business, Smylie says.

Employers seem to realize this. "They are more engaged and more concerned about protecting their bottom line" than two years ago, Smylie notes.

Employers are usually more successful in appeals. For the year ended June 30, workers won 30 percent of their appeals; employers prevailed 42 percent of the time. One reason is that workers challenge more decisions, examiners say.

"If you're a claimant and not receiving unemployment insurance, why wouldn't you appeal every decision against you?" says Stephen Weber Jr., a hearing examiner. "Hopefully, you will prevail. And if not, what have you lost?"

But employers typically go through the time and money of attending a hearing only if they think they can prevail, examiners say.

Bruce Godfrey, an employment lawyer from Owings Mills who represents workers, says employers also have more success because they are familiar with the law, more comfortable with the process and usually can afford legal counsel.

You don't need a lawyer to appeal. But here are tips to help workers present their case:

It's uphill if you quit You will be denied benefits if you voluntarily leave a job, although there are a few exceptions to this rule.

You could qualify for benefits if you left a job for good cause. That would include cases in which your employer slashed your pay, transferred your job to the other side of the state or asked you to do something illegal or unethical, Godfrey says. But the burden of proof will be on you.

That's why Godfrey says he usually advises workers: "Don't quit, don't quit, don't quit."

Meet deadlines You have 15 days from the date of the denial to appeal the decision in writing. Wait too long, and you might forfeit your chance. The state allows leniency in limited situations, but the threshold is high, Smylie says.

Be on time If you're late by more than 10 minutes for your hearing, the case will be dismissed. You can petition for another one, but it's not automatically granted, Smylie says.

Again, you must have an exceptionally good reason for being late, such as you were in the hospital. Being late because you had trouble finding parking won't cut it.

Bring documents Don't forget to bring enough copies of documents supporting your claims for the examiner and anyone else who might attend the hearing.

Stick to the facts Hearings run about 45 minutes. Reciting every past grievance might make you feel good, but you can run out of time and your case may be continued to finish. That could mean waiting another three weeks before a new hearing is scheduled.

You need to focus on the reasons you're no longer with the employer and be able to tell your side of the story succinctly.

"Telling me, as unfortunate as it is, that you are getting evicted or you don't have health insurance, I'm not going to base my decision on that," Weber says. "I can't."

Try to leave emotions out of it. Yelling, name-calling or interrupting other speakers won't help your case.

Cross-examine There's a good chance when appealing, particularly if you were fired for misconduct, that your old boss will show up. You'll have a chance to cross-examine the employer, and you should take advantage of it.

For example, if you disagree with the company's charge that you were late 75 times, ask the employer to document that. If that's not possible, this could undercut the employer's claim and bolster your own position.

Also be prepared to be cross-examined.

Once a hearing is over, a decision will be issued in two to four weeks. And what if you lose?

You can take your case to the department's Board of Appeals, which usually listens to the recorded testimony from the hearing to make a determination.

And if you're unhappy with subsequent rulings, you can then appeal to the Circuit Court and on up — all the way to the U.S. Supreme Court.

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