Once you file for unemployment insurance benefits and learn the employer is contesting your claim, it is your responsibility to follow the progress of the case carefully.

Tip: Consider whether you require representation by experienced counsel at the hearing (especially if you are considering suing the employer in court over other issues and do not wish to lose the first battle). If you are anticipating receiving the maximum benefits allowed (which in some states can exceed $325 per week) and expect to be unable to find gainful employment for a long period of time (e.g., six months), it may be advantageous to hire a lawyer when the amount of money being contested is significant.

Many people do not know how to act at unemployment hearings. Claimants are often told by unemployment personnel that a lawyer or other representative is not required and that prehearing preparation is unnecessary. They then attend the hearing and are surprised to learn that the employer is represented by counsel who has brought witnesses to testify against their version of the facts. Some are unprepared for the grueling, possibly humiliating cross-examination lasting several hours that they are subjected to. Other claimants lose at the hearing because they don't understand the purpose of their testimony or what they must prove to receive benefits.

Plan on being able to attend the hearing on the date in question. If you cannot be present, speak to a representative responsible for scheduling, explain your reasons, and ask for another convenient date. This should preferably be done in person. Include future dates when you know you can appear. Call that individual the day before the old hearing date to confirm that your request has been granted.

An unemployment hearing is often no different from a trial. Witnesses must testify under oath. Documents, including personnel information, warnings, and performance appraisals, are submitted as exhibits. The atmosphere is rarely friendly. Thus, you must prepare in advance what you will say, how you will handle tough questions from the employer, and what you will try to prove to win the case.

When preparing for the hearing, be certain that all your friendly witnesses (if any) will attend and testify on your behalf. If necessary, ask a representative from the unemployment office to issue a subpoena compelling the attendance of key disinterested witnesses (e.g., co-workers) who refuse to testify and voluntarily attend. If the unemployment representative has no power to do this, wait until the first day of the hearing. Explain to the judge or hearing examiner the necessity of compelling the appearance and testimony of key witnesses. The judge may grant your request depending on its relevance and reasonableness.

Organize the case the day before the hearing to maximize your chances of success. If you have a lawyer, meet with him or her to learn the correct way to testify and what you must prove to win benefits. Collect all evidence so it can be produced easily at the hearing. Practice what you will say. Prepare an outline of key points to be discussed and questions to ask each witness and employee of the ex-employer.

The hearing

Arrive early on the hearing date and advise a scheduling clerk of your appearance. Bring your evidence and come properly attired (preferably in business clothes). In some states you can review the entire contents of your file before the hearing; don't forget to ask for this if appropriate. When your case is called, all witnesses will be sworn in. Show the judge your evidence and never argue with the hearing examiner. Listen to the judge's or your lawyer's questions before answering. Avoid being emotional and arguing with your opponent at the hearing.

After the employer finishes testifying, you will have the opportunity to cross-examine the witnesses and refute what was said. If the employer is represented by an attorney and you feel intimidated because you are not represented by counsel, tell the judge you are not familiar with unemployment hearing procedures. Ask the judge to intercede on your behalf if you feel your opponent's attorney is treating you unfairly.

Obtaining a decision

Decisions are not usually obtained immediately after the hearing. You will probably be notified by mail (sometimes two to four weeks later). Be sure to continue filing for benefits while waiting for the decision. Many people forget to do this and lose valuable benefits.

Should You Appeal?

If you are notified that you have lost the decision, read the notice carefully. Most judges and hearing examiners give specific, lengthy reasons for their rulings. If you feel the ruling was incorrect or disagree with the judge's opinion, you may want to file an appeal and have the case reconsidered. However, it is best to speak with an experienced employment lawyer to get an opinion before doing so. You may discover that your chances of success with an appeal are not as good as you think. Appeals are not granted automatically as a matter of right in many states. If the judges on the Appeals Board believe that the hearing judge's decision was correct factually or as a matter of law, the decision will go undisturbed.

Tip: The odds of winning an appeal are not in your favor if you lose at the initial hearing. The amount of time needed to review the transcript or tape of the proceedings, prepare an appeal brief, and reargue the case often makes it expensive and time-consuming. Depending on the particular facts of your case, appealing the hearing may not be worth it. However, if new material facts come to light, if relevant witnesses are willing to come forward and testify at an appeal hearing, or if the success of another case (such as a discrimination lawsuit that was previously filed) depends on a successful outcome of the unemployment matter, this could make a difference.

Typically, you have only a specified period of time (say 30 days) to file the appeal, so do this timely to avoid having the appeal dismissed due to a technical error.

Tip: Speak to an employment lawyer if you have already received benefits and now are being asked to return the money because you lost the hearing. In some states, the failure to return benefits is a crime and you can be prosecuted. The author has structured settlements for many clients with a small payout over time (and often no interest charges imposed) to diminish the burden of having to pay all the money back immediately. Women out of work with insufficient funds can do this with a lawyer's assistance, so inquire about this where appropriate.