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Tim's Missouri Employment Law
By Attorney Tim Willoughby
St. Louis Missouri employment lawyer
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ARTICLES:

Demystifying Missouri Unemployment Claim and Appeal Process

This article is a companion to my Missouri Unemployment Appeals Tips article.

Here is the flow of an Unemployment Claim, as it works its way through the intake process and then through the three types of Appeals

Update - FIRST AND FOREMOST —– DO NOT “RESIGN” WITHOUT GETTING LEGAL ADVICE

The Division of Employment Security is strapped for cash due to the depression, and they are looking for any way possible to deny benefits —- Sorry to be so blunt but it is true — Do not “resign” in lieu of termination, unless you have spoken to a lawyer first. — And everything you say, and don’t say, will be used against you.

THE INITIAL CLAIM

  • START: Start your claim on the internet. Answer some basic questions on the web. The Unemployment Office will then send you some forms to fill out.
  • EMPLOYER NOTIFICATION: The unemployment office will notify all the companies you worked for over the prior couple of years. All those companies contributed to your unemployment insurance benefits, and so they are notified of your claim.
  • EMPLOYER PROTEST: Any of those employers can protest your claim within 30 days of being notified. If an employer protests your claim, a Deputy will probably investigate.
  • A DEPUTY DECIDES TO INVESTIGATE: You might not get benefits immediately. Instead you might get a letter setting up a telephone appointment with the Deputy. The Deputy might have received a Protest from the employer, and wants to ask you some follow up questions. If the employer has NOT protested, the Deputy might not be sure of your entitlement, and just wants to clarify some things.
  • WHAT DO YOU SAY IN YOUR CLAIM OR IN THE INVESTIGATION? : If you might have a potential legal claim, as well as an unemployment claim, you need to be aware that your unemployment file will be an important source of evidence against you - the statements you make will be used against you if possible. So be careful what you say.
  • A DEPUTY MAKES A DECISION: If the employer has protested, it might take eight weeks before your benefits start, or before you get a Denial. If the employer has not protested, you might get benefits within about 5 or 6 weeks of filing the initial claim.
  • A FRIENDLY EMPLOYER CAN HELP: If your employer would be so kind, your employer could write a letter to the Unemployment Office and tell them that the employer chooses NOT to protest your claim.

THE FIRST UNEMPLOYMENT APPEAL - This is where someone appeals the Investigator’s initial decision and requests an appeal hearing, to be conducted by an unemployment judge

Someone might disagree with the Deputy’s decision. Maybe the Deputy denied your claim. Maybe the Deputy approved your claim, and the Employer thinks you should have been denied.

  • TIME LIMIT TO APPEAL - Both you and the employer will have 30 days to Appeal the Deputy’s decision.
  • HOW TO START THE APPEAL: The Deputy’s decision letter contains instructions for how to appeal. For a long time now, Appeals can be started by sending a Fax or Mail to the Unemployment Appeals Division (see the Decision Letter for the address and fax number).
  • WHAT TO SAY IN THE APPEAL REQUEST LETTER: Ahh, that’s the $64,000 Question! See my article on Unemployment Appeals Tips and Info. If you might have a potential legal claim, as well as an unemployment claim, you need to be aware that your unemployment file will be an important source of evidence against you - the statements you make will be used against you if possible. So be careful what you say.
  • SCHEDULING OF THE APPEAL: Soon after you or the employer files an Appeal Letter, the Unemployment Appeals Division will schedule the appeal and notify everyone.
  • AN UNEMPLOYMENT JUDGE (called a “Referee”) will conduct a hearing.
  • THE APPEAL HEARING will be by telephone UNLESS you or the employer requests the hearing be “in-person”. I recommend you request an in-person hearing.
  • WHAT HAPPENS AT THE HEARING: See my Unemployment Appeals Tips and info article for details.
  • REFEREE’s DECISION: Within a week or two of the hearing, the Referee issues a decision.

THE SECOND UNEMPLOYMENT APPEAL - This is where someone appeals the unemployment judge’s decision after the first hearing.

You and the employer will have 30 days to appeal the Referee’s Decision.

  • STARTING THE SECOND APPEAL: The Referee’s Decision Letter will tell you how to file another appeal. You can typically start the second appeal by fax or letter.
  • WHOEVER APPEALS, THE OTHER PARTY WILL GET NOTICE OF THE APPEAL: If the Employer appeals, you will be given a chance to submit arguments. If you appeal, your employer will get notice and be allowed to submit arguments.
  • THE SECOND APPEAL IS ACTUALLY A REVIEW OF THE REFEREE’s (judge’s) DECISION: You had your hearing, presented your evidence, and a judge decided your case. The facts are pretty much “set” now. The Second Appeal does NOT typically include a right to another hearing. So the Second Appeal is a review of the legal accuracy of the Referee’s (Judge’s) Decision, under all the circumstances.
  • EVIDENCE AT THE SECOND APPEAL: The Transcript of the First Appeal Hearing is the main piece of evidence used. The Labor Commission usually prepares the transcript when you file for a Second Appeal. The Facts supporting and opposing your claim are already determined (for the most part) because of the First Appeal Hearing. New facts (those that were not presented at the First Appeal), are not typically allowed to be used at the Second Appeal. But new evidence might be allowed if the Unemployment Referee (Judge) wrongly excluded the evidence at the hearing. Also, if there is Newly Discovered evidence, sometimes the Labor Commission might allow you to use it.
  • ARGUMENTS AT THE SECOND APPEAL: You have the right to submit written arguments. These written arguments will be considered. “Written Argument” means reasons why the Appeal Referee’s (Judge’s) decision should be overturned. All manner of legally-appropriate reasons can be argued.
  • TYPICALLY, NO HEARING OCCURS: The Labor Commission decides the Second Appeal based of the Transcript of the First Appeal Hearing, AND the legal arguments you make. If you submit evidence that is not “in the record” of the First Appeal Hearing, you need to also submit arguments about WHY the Labor Commission should consider the new evidence, or else the Labor Commission will probably not consider your new evidence.
  • LABOR COMMISSION DECISION IN THE SECOND APPEAL: Eventually the Labor Commission will issue a decision. The Decision will tell you how to Appeal further, if you are unhappy.
  • POSSIBLE DECISIONS: Overturn the Referee, Uphold the Referee, Modify the Referree’s decision, or Order a New Hearing. The most common decision will be to Uphold the Referee’s decision -that’s the nature of appeals throughout the law. You get your best shot at the First Hearing. If you lose the First Hearing, you’re at a disadvantage.

THE THIRD APPEAL - TO THE MISSOURI COURT OF APPEALS

The Labor Commission’s decision in the Second Appeal will contain instructions on how to make a further appeal to the Missouri Court of Appeals.

The Court of Appeals job, in this Third Appeal, is to review the legal appropriateness of the Labor Commission’s decision. All manner of legitimate legal arguments can be used, as with any appellate court case.

BUT - Appellate Court Practice is quite difficult and time-consuming. Few Unemployment Claimants can justify the expense of hiring a lawyer to fight an Appellate Court battle over the value of unemployment benefits. Even if you win, you can’t get your attorney fees reimbursed.

No one has ever hired me to fight a Court of Appeals unemployment battle. And my bias is to discourage people from spending the money. The cost-benefit analysis is just too lopsided in favor of dropping the matter.

CONCLUSION

  • Your best shot at benefits is to Say the Right Things when you make your initial claim.
  • If you get denied, then your best shot is to Fight Hard at the First Appeal Hearing.
  • If you lose the First Appeal, your chances diminish sharply. Your Last Chance (for practical purposes) is the Second Appeal.
  • Frankly, you have little hope as a layman trying to fight a Third Appeal in front of the Court of Appeals, and the high costs prohibits you from hiring a lawyer to fight a Court of Appeals battle.
  • See my Unemployment Appeals Tips article for much more.

Getting help with your unemployment appeal

I represent people at unemployment hearings. I explain the services and their cost in my Services and Fees article.

If you lack funds to hire a lawyer, you could try contacting your local Bar Association (look in the phone book), or contact a “Legal Aid” - organization if one exists in your area.

Here in the Eastern part of Missouri, our “Legal Aid” is called Legal Services of Eastern Missouri (LSEM).


***** END OF ARTICLE *****

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).

Tim Willoughby, Attorney
(Licensed in Missouri)
11414 Gravois Rd., Suite 203
St. Louis, MO 63126
ph:    314-729-7750
fax:   314-729-7799

1.6 miles North of I-270 on Gravois.
... Near I-270 and I-44

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