August 2016 Briefly: An Unemployment Case Analysis
The claimant was discharged from his employment after a string of policy violations. He was disqualified from benefits upon a finding that he was discharged for misconduct connected with the work. He appealed, and a hearing was scheduled before an administrative law judge.
At the Hearing
The Employer’s Evidence: The claimant, a security guard, was discharged after a final incident in which he failed to call in or report for scheduled work. He was on final warning for an incident in which he left his post, which led to an unauthorized person entering the building and assaulting someone. The employer’s policies, which the claimant received at hire, notified him that any violation following a final warning could result in discharge. The policies also provided that if he was unable to report to work, he was required to personally notify his supervisor.
The Claimant’s Evidence: Regarding the final incident, the claimant testified that on the date of the final incident, he failed to call in or report for work because he was drowsy due to a schedule change and medication. Under cross-examination by the employer’s representative, the claimant admitted that he did not inform the employer of either of those reasons at the time of his discharge, and admitted that he had given two other responses – one, that he had called the employer but spoken to a coworker, and the second that he did not know why he failed to call.
The Hearing Decision
The Administrative Law Judge found that the claimant was discharged, but not for misconduct connected with the work, and allowed benefits. The ALJ found that the claimant’s medication and schedule change excused his failure to report his absence, and therefore misconduct could not be found. The employer disagreed and appealed, arguing that the ALJ’s decision was not reasonably based on the record of evidence. The claimant had never reported the same issues to his employer, so the claimant’s testimony could not be taken as credible. Without that evidence, the employer argued, the employer proved its case that the claimant violated the employer’s policy without justification after warning, and proved that the claimant was discharged for misconduct connected with the work.
The Board of Review Decision
The Board of Review disagreed with the Administrative Law Judge and reversed the decision in favor of the employer. The Board found that the ALJ’s determination that the claimant’s testimony was credible enough to result in a Finding of Fact in his favor was not supported by the record of evidence. Without that evidence, the Board found that the facts supported a finding of misconduct and a disqualification.
- Administrative Law Judges must hear the evidence and in cases where the evidence is in conflict, make a determination regarding whose testimony is the most credible. In this case, the ALJ originally found the claimant to be more credible, so was able to find that the claimant’s reasons for the final incident were essentially outside of his control, and the facts could not support a finding of misconduct. If a claimant has an excusable reason for the final incident, which proves that the incident was outside of his control to avoid, he may be allowed benefits.
- A professional representative can be invaluable in an unemployment hearing. In this case, the claimant’s admission, under cross-examination, that he gave the employer different reasons for the final incident was the factor that led the Board to reverse the decision of the ALJ. Representatives are familiar with the hearing process and have the relevant experience to cross-examine claimants under oath to highlight inconsistencies in claimant testimony. Representatives are also experienced with many types of separations and can assist with determining which witnesses and evidence are necessary to prove an employer’s case at the hearing. If you are concerned that a claimant might give inconsistent testimony, or if you would like assistance with proving your case, a representative can give guidance.
To learn how Equifax can help your organization with unemployment cost and claims management, contact Pete Krieshok at pete.krieshok@Equifax.com.
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