At its June meeting this week, the Tulsa Area Employer Council hosted Ed Evans, chief hearing officer for the Appellate Division of the Oklahoma Employment Security Commission (OESC). He explained the agency’s process for considering and deciding unemployment claims.
At any one time, there are approximately 22,000 pending claims for unemployment benefits in Oklahoma. Roughly 20% of OESC’s initial determinations for unemployment benefits are appealed, which means 80% of the time a decision about a claim for unemployment benefits is decided at the initial stage by the OESC without any telephone hearing. Continuances or delays for hearings and deadlines are rarely granted. The U.S. Department of Labor, which funds state unemployment programs, imposes time guidelines that the OESC must fulfill — 60% of all unemployment claims must be resolved within 30 days, and 80% of all claims must be resolved within 45 days.
Employers who do their homework and properly prepare will be more successful in opposing unemployment claims. Here are a few quick points to keep in mind:
- Making a timely objection is key. Employers face relatively short time fuses. You have 10 days after receiving the initial notice of an unemployment benefits application to object. You also have just 10 days to appeal after the initial determination was mailed.
- Making a specific objection is also key. It’s not enough to simply state: “We protest.” Your objection and appeal should include a detailed summary of the reason why the applicant should not receive unemployment benefits.
- Get all the information that supports your opposition to the unemployment application into the hands of the OESC from the get go. That means relevant documents and offering witnesses who have firsthand knowledge. The OESC disregards “hearsay” testimony and written statements, if you don’t provide the firsthand participants’ accounts of the employment termination decision.
- What is and what is not “misconduct” — It is the most common basis cited for objection. Although inefficiency, unsatisfactory performance, errors, mistakes, inability to do the job, or isolated incidents may justify an employee’s discharge, those reasons for termination generally do not rise to the level of “misconduct”, such that an employee would be disqualified from receiving benefits. In order for conduct to constitute “misconduct” sufficient to deny unemployment benefits, the employer must demonstrate the employee acted intentionally and deliberately, as opposed to carelessly and negligently.
Like most things in HR, an employer’s likelihood of success is directly related to the effort it puts into preparation.
Editor’s note: In an article for the July issue of Oklahoma Employment Law Letter, Charlie includes some additional information as well as suggestions offered by Evans on how an employer can have the most effective presentation during a hearing.
About the author
Charlie Plumb is a labor and employment attorney with the McAfee & Taft law firm. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.
As part of his labor practice, Charlie represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts. He also represents employers who seek to maintain a non-unionized workforce by counseling management on union avoidance strategies and by providing training and advice to management and supervisors. His clients include numerous municipalities throughout Oklahoma and companies engaged in the manufacturing and distribution, construction, energy, public utility, technology and business services industries.
Charlie is a member of the American Bar Association’s Labor and Employment Law Section and the Oklahoma Bar Association’s Labor Council. He is also the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers.
Charlie is a frequent speaker and author on workplace issues. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.
Charlie’s achievements have earned him inclusion in The Best Lawyers in America (labor and employment law), Oklahoma Super Lawyers (employment and labor, civil litigation defense), Benchmark Litigation and Chambers USA Guide to America’s Leading Lawyers for Business, where he has been lauded as “an impressive public speaker who utilizes his vast experience to effectively defend clients.” Researchers at Chambers & Partners also quoted market observers as admiring him for his “practicality of advice and specialized knowledge of complex legal issues,” with sources commenting that he “immediately commands respect, is always up to date and knows how to handle a problem.”