Representing Yourself in an Unemployment Appeal
What evidence should I present at the hearing?You can present evidence in the form of testimony, documents, and recordings. The ALJ will consider all the evidence presented during the hearing as long as it is relevant, reliable and important to the outcome of the case. The ALJ may exclude evidence that is irrelevant, unreliable, or should be excluded on constitutional or other legal grounds.
Firsthand (Eyewitness) TestimonyGenerally, eyewitness testimony is the strongest evidence of a fact. Firsthand testimony is gained by actually seeing or hearing events as they occur. An eyewitness can describe what he or she actually saw and heard. And, she can answer questions from the other party, called cross-examination, that test his or her ability to perceive, remember, and communicate his or her story. Testimony from witnesses who did not see or hear the events they describe is called hearsay and is not as strong evidence.
Likewise, written statements from individuals who do not appear at the hearing are not strong evidence and are considered to be hearsay. The ALJ will give more consideration to testimony of witnesses who appear at the hearing over written statements because the ALJ (and the other party) may ask questions to test the witness's knowledge and recollection of the facts.
Firsthand (Eyewitness) Testimony Continued.Make arrangements for your witnesses to participate in the hearing. It is your responsibility to notify your witnesses of the date, time and place of the hearing so they can participate. Be sure to notify your witness how to call in prior to the hearing. Before you ask someone to be your witness, talk to them first. Generally, you should choose witnesses who have firsthand knowledge about the events.
If you decide you need witnesses to help explain your case, contact them as soon as possible. Be sure they are available at the time set for the hearing. Your witnesses may appear by telephone even if you are appearing in person. If a witness will simply repeat what you or others will say, or knows little about your case, the ALJ may choose not to allow the witness to testify. The ALJ may ask you to explain the testimony of your witnesses in order to determine whether to allow them to testify during the hearing (offer of proof).
DocumentsOAH mails numbered copies of documents called "exhibits" to you along with the Notice of Hearing. You may need additional evidence in order to properly present your case. Additional evidence may include correspondence, time cards, medical reports, cell phone records, maps, charts, photos, etc. You may also submit video or audio recordings if they help explain the facts of your case.
Make sure you are able to explain who prepared the evidence, its purpose, and how it helps your case.
Submitting additional exhibitsIf you have additional exhibits you want to use in the hearing, you must provide copies to the opposing party and the ALJ before the hearing. Their names and addresses are shown on the Notice of Hearing.
If you do not provide copies of your additional documents or evidence before the hearing, the ALJ may not consider your evidence, or may have to reschedule the hearing so that all parties have a chance to review the evidence.
RecordingsIf you want the ALJ to consider an audio or video recording during the hearing, you must provide a copy of the recording to the opposing party and the ALJ before the hearing. It should be playable using Windows Media Player; if the ALJ cannot play the recording, it will not be considered. If the recording is admitted as evidence it becomes part of the permanent file and will not be returned to the party that provided it.
Job Separations Discharge Cases - RCW 50.20.066 and RCW 50.04.293A claimant who is discharged or suspended for misconduct or gross misconduct is not eligible for unemployment benefits. The employer has the burden of proving at the hearing that the claimant was discharged or suspended for engaging in work-connected misconduct or gross misconduct.
How do I present my case at a discharge hearing?The employer should be prepared to present a witness or witnesses with firsthand knowledge to explain how and when the claimant engaged in misconduct and how the employer's interests were harmed or potentially harmed by the claimant's actions.
The claimant should be prepared to explain why he or she did not act in willful disregard of, or harm the employer's interest. The claimant should also present any witnesses with firsthand information.
What is Misconduct?Misconduct. "Misconduct" means conduct that harms or potentially harms the employer's interest, including but limited to:
(1) willful or wanton disregard of the employer or a co-worker;
(2) violations of reasonable standards of employee behavior;
(3) carelessness or negligence that does or would cause serious bodily harm; and
(4) carelessness or negligence so severe or frequent as to show an intentional or substantial disregard for the employer's interests.
Willful or Wanton Disregard. Examples of "willful or wanton disregard" are: (1) insubordination, (2) repeated and inexcusable tardiness after warnings, (3) work-related dishonesty, (4) repeated and inexcusable absences, (5) deliberate provocation of violence, (6) deliberate violation of the collective bargaining agreement, (7) violation of reasonable employer rules, or (8) law violations within the scope of employment.
What is Gross Misconduct?Gross misconduct means a criminal act for which the claimant has been convicted in criminal court, or has admitted committing, or conduct that demonstrates a flagrant and wanton disregard of the interests of the employer or a fellow employee.
Voluntary Quit Cases- RCW 50.20.050 (2)(a)A claimant who quit work does not qualify for unemployment benefits unless the claimant quit for good cause. In a voluntary quit case, the claimant has the burden of showing he or she quit for "good cause."
How do I establish "good cause" to quit?o show good cause, the claimant must show that the job separation was for one or more of the following reasons:
(1) The claimant received a bona fide job offer elsewhere;
(2) The claimant or an "immediate family member" suffered an illness or disability inconsistent with continuing work;
(3) The claimant accompanied a spouse or registered domestic partner when he/she moved for a job and remained employed as long as reasonable prior to the move;
(4) The claimant needed to protect him or herself or an "immediate family member" from stalking or domestic violence;
(5) The employer reduced the claimant's usual pay by 25% or more;
(6) The employer reduced the claimant's usual hours by 25% or more;
(7) The worksite was changed by the employer to a location more difficult to reach than the ordinary commute for workers in similar jobs in the labor market ;
Good Cause to Quit Continued.(8) Worksite safety deteriorated, claimant reported the deterioration to the employer who failed to correct in a reasonable amount of time after notification;
(9) Illegal activities occurred in the workplace, claimant notified the employer but the illegal activities continued after a reasonable time after notification;
(10) The employer changed the claimant's work to work that violates the claimant's sincerely held morals;
(11) The claimant quit to enter an apprenticeship program approved by the State and Department; and
(12) The claimant worked at the same time a full time job and a part time job. The claimant quit the part time job and later loses the full time job.
Where the claimant quit for medical reasons, safety hazards, or illegal activities, the claimant must also prove that he or she took reasonable steps to preserve his or her employment before quitting, unless it would have been futile to do so. See RCW 50.20.050(2).
How do I present my case at a quit hearing?The claimant should be prepared to provide details, including witnesses with firsthand knowledge about what caused the claimant to quit and what efforts were taken to preserve the job before quitting, including notifying the employer in some cases.
The employer should be prepared to respond with information and witness(es) with firsthand knowledge to explain why the claimant did not have good cause for quitting and/or how the claimant failed to take reasonable steps to preserve his or her employment prior to quitting.
How do I present my case when my job search/availability for work is an issue?Claimants who are required to search for work must prove that they are able to work, available for work, and are actively seeking suitable work during all weeks benefits are claimed. Claimants should be prepared to provide information such as the name and address of employers contacted, date(s), individual(s) contacted, outcome of the contact, etc.; you should also be prepared to report on job search activities such as employment workshops and training classes.
The ALJ may ask the claimant to submit a copy of his or her Job Search Log.
What are my job search requirements as a part-time worker?"Part-time workers" are workers who worked more than 40 weeks in their base year, but never more than 17 hours per week. Part-time workers who actively seek part-time work will not be disqualified for limiting their search to part-time work.
What tips can help me in the hearing?If you have written evidence you want to use in the hearing, you must provide it to the ALJ and the other parties involved in the hearing before the date and time of the hearing. Before the hearing, make a list of the points you want to cover at the hearing. Write down questions that you want to ask witnesses. Be prepared to talk about specific incidents. Be prepared to answer the questions: who, what, where, why and when.
*Decide if you need witnesses. Talk to your witnesses as soon as possible to be sure they will be available to testify and that their testimony will add to your case.
*If you want to be represented by an attorney or lay representative, take steps to retain a representative immediately upon learning that an appeal has been filed. Do not wait for the Hearing Notice to be sent.
Tips that can help continuedTestify only when it is your turn. Do not interrupt unless you have an objection to make. An objection lets the ALJ know that you believe the opposing party is offering inappropriate or unnecessary evidence. The ALJ will rule on your objection.
*Testify to what you know. Do not guess. If you do not know the answer to a question, say that you do not know.
*Avoid simply repeating what has already been said.
*During cross-examination, make your questions short and to the point. Ask only one question at a time.
*Present only evidence that is necessary to your case.
*Do not argue or get angry during the hearing. You will do a much better job of presenting your case if you stay calm.
*If you are not sure what to do during the hearing, ask the ALJ.