Articles

Re-employment Insurance 10 Tips for Claimants and Employers at Re-employment Appeal Hearings

Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 612.339.4295
FAX: 612.339.3161

2000 Mansfield, Tanick & Cohen, P.A.

Claimants

1. Resignation Realities. Quitting, generally, is very dangerous in regards to claiming re-employment benefits. Even in the face of diminishing options, it is often better for purposes of collecting re-employment benefits to let the Employer take the step of terminating the Claimant's employment. If the Claimant resigns and still hopes to collect benefits, the record must be clear that he or she had no other reasonable available option other than to quit. "Good reason" to quit will only be found in rare situations (e.g., sexual harassment, or serious illness). Peppi v. Phyllis Wheatley Comm. Center, 614 N.W.2d 750 (Minn. Ct. App. 2000). See also Minn. Stat. § 268.03 (benefits to be applied to "individuals unemployed through no fault of their own"), and § 268.095 subds. 1-3.

2. Settlement vs. Severance. When negotiating a Settlement with an Employer, get legal counsel. Failure to properly characterize the actual end of employment, and phrase the terms and language of the Agreement could be fatal to a claim for re-employment insurance benefits. Elements to be included in a Settlement Agreement on this point are:

   1. Omit any language to the effect that the employee has resigned if it is clear that the employment's termination was unilaterally controlled by the Employer;

   2. Omit the term "severance";

   3. Make any payment a one-time, lump sum;

   4. Include language that the Employer agrees not to contest the application for re-employment benefits;

   5. Include clear language that the employee is receiving the payment in exchange for waiving any legal rights he/she may have against the Employer, and that the Agreement was the result of negotiations between the parties.

      See Minn. Stat. § 268.085, subd. 3(1) ("severance" not defined). Compare with Carlson v. Augsburg College, 604 N.W.2d 392, 394 (Minn. Ct. App. 2000) (severance is a "sum of money usually based on length of employment for which an employee is eligible upon termination").

3. Flying Solo. The Claimant should at least consider appearing at the appeal hearing without legal counsel. Usually it is a bad idea for anyone to appear in any type of legal setting without the assistance of able counsel, but re-employment hearings may be the exception, under the right circumstances. If the Claimant is reasonably articulate and knowledgeable about the issues involved, and there does not appear to be the likelihood of further legal issues/action beyond the appeal hearing, this might be best. Also, appearing without counsel may provide for the maximum amount of equity to flow the Claimant's way, even if the Employer arrives with legal counsel (maybe better still). Of course, legal help may still be necessary to prepare the Claimant for the Hearing, regardless of whether the attorney makes an appearance or not.

4. Bring Backup. Conversely, while a Claimant may want to explore the possibility of appearing without legal counsel, it is almost always never a good idea for a claimant to rely solely on his or her own testimony. If possible, the Claimant should appear with at least one other, helpful witness, preferably someone not under the current control of the Employer. A helpful witness here may be some type of health care provider if there is a health issue involved relating to the termination. Ex-employees may also be useful. The point here is to have at least one other witness testify who can credibly corroborate the Claimant's main point(s). If such a witness is not in the cards, the Claimant may appear with a spouse or close friend to simply lend needed support (but this person may not testify). Usually most Reemployment Insurance Judges (RI Judges) will allow such a person to sit in during the proceedings.

5. Subpoena Synergy. It may be unavoidable to call a witness who is still employed by the Employer or who is an outside party. This can be done only through a subpoena from the Department. Make sure that a proper and timely request for a subpoena is made to the Department. Subpoena requests are handled internally, and are not guaranteed, so be sure to have a short and articulate reason to explain the necessity of compelling the witness(es). If more than one is needed and granted, sometimes the Employer may back off in the face of losing a number of employees from being productive at work. A Claimant should also strongly consider calling a customer or client of the Employer as a witness if he/she has pertinent information. This, too, may have a chilling effect on the Employer's strategy. See Minn. Stat. §§ 268.105, subd. 4, and 268.188.

6. Decline the Charges. Avoid telephone hearings - these do not allow for RI Judge to get a good evaluation of the witnesses or the Claimant. However, if the Employer is located out of state or a lengthy distance, the Claimant may not have an option. Another problem with such hearings is the handling and use of the exhibits; a lot of time is eaten up trying to get everyone "on the same page," as well as marking, submitting and evaluating each document. Minn. Stat. § 268.103.

7. Co-opting Cross-examination. If it is known what questions the Employer will ask, don't wait for them. Take the sting out of potentially harmful testimony by dealing with the subjects of the questions the Employer may ask. Claimants generally feel more comfortable answering and putting forth their version of the events; this will reduce the amount of "dramatic impact" such questions may have had upon cross-examination by the Employer.

8. Careful Crossing. Again on the subject of cross-examination, the Claimant will usually gain little in trying to elicit admissions from the Employer on cross-examination. In fact, the Employer is usually so confident and sometimes strident in its position that a question on cross may only lead to a damaging soliloquy. Limit the amount of cross of the Employer, and consider avoiding it altogether (unless there is an obvious point to exploit or a misstep by the Employer).

9. Judge On the Job. Unlike other legal or administrative forums, the RI Judges in these appeal hearings often actively participate in the questioning of witnesses. The Claimant should be fully prepared to handle not only questions from opposing counsel which are designed to damage his/her testimony, but those of the RI Judge, which tend to be more focused on establishing events and facts with great clarity.

10. Closing Time. Claimants and their counsel often mistakenly forego the opportunity to give a closing statement at the conclusion of the hearing. Such a summation, if short and to the point, can usually help underscore important points as well as remind the RI Judge of points that were made sometimes hours beforehand. Closing arguments can have a positive impact. A theater director of mine once remarked that an audience rarely remembers anything more than the opening and closing numbers of a show; this has an analogous application to appeal hearings. Claimants and their counsel often mistakenly forego the opportunity to give a closing statement at the conclusion of the hearing. Such a summation, if short and to the point, can usually help underscore important points as well as remind the RI Judge of points that were made sometimes hours beforehand. Closing arguments can have a positive impact. A theater director of mine once remarked that an audience rarely remembers anything more than the opening and closing numbers of a show; this has an analogous application to appeal hearings.

Employers

1. Misconduct Matters. Document poor performance/misconduct that has led to the demotion/termination. Most companies cringe when presented with advice to document yet another workplace activity. However, the documentation need not take over your business. In the performance/misconduct context, make a notation in the employee's file at or near the same time of the event. A long narrative is not needed, just the basic facts. Keep emotions out of it, or editorial comments. Notes made long after the fact, or after termination will be very suspicious looking, and may cause the Employer's reason for termination to have been manufactured, despite what may have actually happened. Facts discovered after the termination which could have led to the termination may be attacked on the grounds that the Claimant was not informed of these at the time of termination.

2. Misconduct's Meaning. Make sure the perceived problem fits the statutory definition of misconduct. Minn. Stat. § 268.095, subd. 6.

   Misconduct means: "intentional disregard" of a) the Employer's interest; b) Employer's standards of behavior; or c) duties and obligations. Negligent conduct will be considered misconduct if there is evidence of a "substantial lack of concern" on the employee's part. Most acts of misconduct will fall under this negligence standard, so make sure there is plenty of evidence of showing the employee's disregard for the Employer (e.g., consistent unexcused tardiness/absence, numerous instances of ignoring Employer's directives, etc.).

   Misconduct Does Not Mean: inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity.

   Good grounds for termination do not always equal misconduct.

3. "Take This Job And ----." Document any action that would indicate the employee has voluntarily resigned; when making an offer of reassignment, make sure that an offer of adequate training is made at the same time. When deciding whether to make an offer of reassignment, determine whether the re-assignment requires less skill than the employee currently possesses, more skill, or no skill. More skill or no skill means that adequate and good faith training must be made, because if the employee accepts, and the training is non-existent, the employee may have good reason to quit. Likewise, an employee may have good reason to quit if the job is of lesser skill requirements than he or she currently has. See e.g., Peppi v. Phyllis Wheatley Comm. Center, 614 N.W.2d 750 (Minn. Ct. App. 2000); Edward v. Sentinel Management Co., 611 N.W.2d 366 (Minn. Ct. App. 2000); Hein v. Precision Assocs., Inc.) 609 N.W.2d 916 (Minn. Ct. App. 2000); Mbong v. New Horizons Nursing, 608 N.W.2d 890 (Minn. Ct. App. 2000);Williams v. Right Step Academy (Corp), 607 N.W.2d 482 (Minn. Ct. App. 2000); Erb v. Commissioner of Economic Security, 601 N.W.2d 716 (Minn. Ct. App. 1999).

4. Look ahead. Conversely, if there is threatened or potential legal action beyond the appeal hearing on the horizon, it may be appropriate to use the appeal hearing as a test of your legal strategy. This is especially true in cases involving claims of sexual harassment. It may also help to evaluate the strength and weaknesses of the Claimant as a witness, and to observe and learn more about his or her position. Also, it will give you a guide map for potential discovery requests.

5. Know the rules - sometimes large companies, or those with headquarters out of state, will utilize counsel or a professional firm based outside of Minnesota for the appeal hearing. This can be a potential pitfall unless such agents are fully aware of the practice and procedure here. I once had out-of-state opposing counsel charter a private flight from Green Bay for an appeal hearing. He was unaware that the initial hearing was only scheduled for an hour. When he learned this, he promptly entered into settlement discussions so as to avoid a second, expensive air trip.

6. Excluded Evidence. Be aware of the evidentiary exclusionary statute. Minn. Stat. § 268.105, subd. 5(c): "No findings of fact or decision issued by a reemployment insurance judge or the commissioner may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, except proceedings provided for under this chapter, regardless of whether the action involves the same or related parties or involves the same facts." Some Employers (and Claimants) make the mistake of believing that what was said on the record can be used in a subsequent proceeding. This statute clearly says "no," and it is very possible that such evidence cannot even be used to impeach the credibility of the witness. However, the hearing may turn up evidence that can be sought after in a subsequent proceeding. While the statute makes the party seeking such information to take extra steps to obtain or re-obtain it, the upside is that presumably the party will know what it are looking for (and that it is there).

7. Emotional Rescue? Leave the emotions out of the hearing room. Make sure that the effusive or emotive supervisor or witness is not in charge of the appeal hearing. Consider not using this person as a witness if possible. If unavoidable, make sure this witness is carefully prepared to avoid an emotional outburst from occurring. Again, the point here is to avoid looking vindictive and abusive. The Employer should always present itself as a reasonable organization that made a rational business decision in terminating the Claimant from employment.

8. "Piling on" Pitfalls. This can be interpreted different ways. The re-employment process is weighted toward the Claimant, which is more of an aspiration than a reality sometimes. See Minn. Stat. § 268.0121. Nevertheless, if the Claimant shows up without counsel, and the Employer is there with its attorney in a 3-piece suit and six or more witnesses testifying to the same thing, the hearing judge may start to sway toward the ex-employee to provide at least the appearance of fairness. Avoid this situation altogether. Determine ahead of time if counsel will represent the Claimant. If not, evaluate the strength and weaknesses of the Claimant's ability to present his/her case, and decide at that point whether counsel for the Employer is appropriate. Also, do not bring more witnesses than necessary. Obviously, there is an incentive not to disrupt the workplace any more than is necessary by bringing superfluous employees who ought to be working. Also, the hearing judge usually disallows repetitive testimony anyway. Plus, you may run the additional risk that of causing the equities to flow more to the Claimant.

9. Mind Your Manners. Sometimes the appeal hearing can appear and seem very informal. The room is a little dingy, perhaps no one present is in formal business attire, and there seems to be a very easy give-and-take between you, the witness and the RI Judge. Do not become lulled by this into hurrying, interrupting or cutting off the RI Judge. Also, the informal setting may cause you not to raise certain objections, which may be irretrievably lost on appeal if not raised. Stay aware of what is happening.

10. Control the documents. Make sure your documents are adequately copied and that you have brought a set each for the RI Judge and the Claimant. At the Hearing, keep track of your set and make sure everyone is looking at the same document when you are using or referring to it. Sometimes, the documents get all mixed up in the middle of the table as it's being passed back and forth. Make sure your documents are adequately copied and that you have brought a set each for the RI Judge and the Claimant. At the Hearing, keep track of your set and make sure everyone is looking at the same document when you are using or referring to it. Sometimes, the documents get all mixed up in the middle of the table as it's being passed back and forth.

Resources

1. Minnesota Department of Economic Security's web site:

   www.mnworkforcecenter.org/

2. Other materials for re-employment cases can be found at the following web site:

   www.probono.net/mn/

At the site, select "Civil Law" under the Practice Areas section. Then, sign up for the web site. Once you have a password, re-enter the site and go back to the Civil Law section, and select "library." Scroll down, and you will see re-employment related articles. Some are out of date concerning the law (and have not been substantively updated for a few years). However, the practice tips articles are still useful.

Click here to go to Employment Law.