Texas Employees Tips on Appeal of "Misconduct" Unemployment Denials

Posted about 5 years ago. Applies to Texas, 12 helpful votes

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Look at the "Appeal Precedent Manual"

I want to direct your attention to the Texas Workforce Commission's Appeal Precedent Manual, which can be found at http://www.twc.state.tx.us/ui/appl/vl.pdf . Please click on this (on the left side of the page) and click on the word Misconduct , then scroll down to the find the section that best fits your situation. For example, sections 125.35 and 135.35. These discuss the situations where an employee quits, or is effectively fired, when given the choice of being fired or quit. The basic direction to the Appeal hearing officers is that every case is different. In your case, you have to prove you had no choice, as being terminated in the middle (beginning) of your contract term would injure your reputation and kill chances of getting other work, and that you were given no choice at all about staying on - if you didn't quit, it was a certainty you'd be fired immediately. The real issue in your case, if you first prevail on the "forced to quit" issue, is whether the terminat

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Prepare for the hearing - getting the employer's documents

Well before your hearing date, you need to contact the hearing officer (you'll get notice of who it is, and a contact fax number for them) and request in writing that the employer make available to you prior to the hearing the names of all other teachers with the same alleged misconduct , and whether each was forced to quit or be fired, or given additional opportunity to pass the exam and their contracts continued. Send a fax copy, or walk a copy to their office, to the employer's HR director , so they have it at the same time, and show in your fax to the hearing officer that you copied the employer . You may not get this request for the district to produce documents granted, but it needs to be in writing and sent to the hearing officer and the employer soon after you get the appointed hearing officer's contact info. ( If it's a public employer, you can also request this under the Texas Public Information Act (PIA), by your written request delivered to the employer,

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Preparing for the hearing - getting your witnesses and documents ready

Also, remember that any statements made at the Appeal Tribunal telephone hearing are going to be available and useable in any subsequent proceeding (like a lawsuit or EEOC investigation) , if you write the TWC Office of Hearings and Appeals after the hearing and ask for the CD with the audio transcript that will be made of the sworn testimony by the administrators and you at the hearing). You are also required to submit copies of any documents and witnesses names and phone numbers you intend to call and want to rely on to both the hearing officer and the employer prior to the hearing, by fax at least one full day prior to the hearing. You need to designate any managers and co-workers who are still with the employer in time for the employer to have them available at the hearing.

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Participation in the hearing

The hearing officer will generally ask some broad questions of the employer at the beginning, and then will get into the facts. They will ask you if you have any questions of the employer/witness they've just questions, so if you have questions for your employer or any of their witnesses, write them down ahead of time, and ask them clearly and plainly. If there are documents in the packet you want the witness to refer to, you'll need to quickly be able to say what page of the pre-hearing packet (any documents submitted prior to the hearing by you or the employer, including those that were provided when the original claim was decided, which each have "packet" page numbers on the top). When it's your turn, be organized, and clear, and always reference the specific documents you're referring to. Remember the employer representative at the hearing will be able to ask you questions too, so be prepared to defend your position, and don't make any "uh-huh" type admissions. BE POLITE!

Additional Resources

http://www.twc.state.tx.us/ui/appl/app_mant.html (TWC hearing officer's manual) http://www.twc.state.tx.us/ui/appl/app_man2.html#212 (Hearing offficer's manual section on getting documents by subpoena) http://www.twc.state.tx.us/ui/appl/app_manual.html (TWC Precedent Manual)

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