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Unemployment claim denied, can I win an appeal?

Memphis, TN |

Recently fired from a company for violatin code of conduct. I worked for the company for 4 years, never had any write-ups or warnings. Deposited a check in my associate account that turns out to be fradulent, I was fired a week later. I did not spend the money.

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Attorney answers 1


I take it you received a letter from the Tennessee Department of Workforce and Labor Development titled "Agency Decision". Therein, I will presume you were informed that you were ineligible to receive UI Benefits under T.C.A. 50-7-303(a)(2) which is work related misconduct.

Am I right thus far?

In any event, to answer your question - yes - you can win an appeal before the Appeals Tribunal. However, you must timely appeal the Agency Decision to the Appeal's Tribunal. Retaining an attorney - while optional - is advantageous for the reasons stated below.

The Appeals Tribunal is simply a hearing officer and an adversial administrative proceeding between you and the separating employer. The rules of civil procedure apply somewhat; i.e., notice as to documents you wish to use must be supplied to the opposing party, general testimony is elicited as it is in General Sessions and Circuit Court. The rules of evidence generally apply although hearsay is typically admitted; i.e., your personnel records can be admitted even if not corrobarated by a testifying witness.

Accordingly, it would be wise to retain an attorney. Again, you can represent yourself, but if you do not know the rules of procedure or evidence as they apply to proceeding before the Appeals Tribunal it may be difficult to represent yourself.

Moreover, the burden of proof is on the separating employer to prove work related misconduct. Misconduct is generally defined as a willful breach of a duty you owed your employer and one that is reasonable for an employer to expect. The operative term here is "willful". Your employer must show that you intentional took some action to intentionally harm their legitimate business interest. A single "mistake" or inadvertance does not rise to the level of being culpable of misconduct.

Still, you must know how to frame the argument that what you did was not intentional. Your employer will likely try to confuse the issue by stating you violated their policy. That isn't enough unless you did it willfully. I don't see that here.

Be mindful though that sometimes the hearing officer will turn their decision on a violation of an employee policy. This is why having counsel which can clearly apply the authority defining misconduct to the facts of your case.

In short, yes, you can win. However, it can be difficult without an attorney and even with an attorney, it can be difficult. Of course, that is why if the Appeal's Tribunal affirms the Agency Decision you can appeal to the Commissioner's Designee. That is where memorandums and briefs can be submitted. Nevertheless, if the underlying record taken before the Appeal's Tribunal is sorely lacking, there will not be much from which you can appeal. Therefore, it is important to do it right from the start.

Finally, if you do represent yourself I would advise you to request a telephone hearing rather than in person. There are tactical advantages to this and some hearing officers prefer telephone hearings.

Jason Barnette, Esq.
Barnette Law Offices
309 Hollow Tree Court
Nashville, Tennessee 37221



Thanks for your response. My appeal hearing will be over the telephone. Hope this hearing will be success.