Recently, unemployment appeal hearings have become an increasingly large part of our litigation work load. One reason for that increase is Congress has extended the amount of time an unemployed person may receive unemployment benefits. As a result, the recently unemployed are more willing to pay a lawyer to appear at the Employment Development Department (EDD) appeal hearings. On the one hand, if the EDD initially denies the former employee unemployment, those former employees have an incentive to pay a lawyer to fight for their right to win unemployment benefits that may last for four years. On the other hand, if an employer appeals the EDD’s initial eligibility finding, the former employee may want the help of a lawyer to convince the EDD Administrative Law Judge to affirm the initial grant of eligibility.

In our experience, employers have always been willing to retain attorneys to appear at EDD unemployment appeal hearings, and we have represented many of our employer clients at those hearings. However, because of the increased stakes, we are now representing more former employees who are willing to pay for legal services. In turn, an increasing number of employer clients have turned to us for representation before the EDD.

Unemployment appeal hearings are not nearly as formal as hearings in Court. First, the EDD holds them in conference rooms or in the administrative law judge’s office. Second, the judge records the hearing but does not have a court reporter present to make a stenographic record. Third, all hearsay evidence is allowed into evidence, so all declarations and documents are made a part of the record. However, the parties may attack the credibility of the hearsay evidence with the goal of showing that it is not reliable enough to support a determination. Fourth, administrative law judge’s tend to take a more active role in evidence presentation. In fact, the judge may even take it upon him or herself to cross-examine a witness.

Even though the rules of evidence are more relaxed in unemployment hearings, credible evidence is still very important. In most cases, the main issues are: one, did the employee quit for good cause, and , two, was the employee discharged for misconduct? At a recent hearing appealed by our client, the employee, the employer tried to prove that our client stole a telephone by submitting reports written by other employees who were eye witnesses to the alleged misconduct. In part, the employer lost the hearing because it elected not to have those eye witnesses testify. We were able to cast doubt on the credibility of the statements. Because the witnesses were not there to contradict our statements and were not available for the administrative law judge to evaluate, the testimony in the written statements lacked credibility.

Do not take unemployment appeal hearings lightly. The stakes are greater than they ever were. Consider speaking to an experienced lawyer before appearing at your hearing unrepresented.

uld be used to impeach statements later made in Court at the Trial de novo.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)