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Unemployment and Appeals – Practical tips
FYI – For official general information about Missouri unemployment benefits and appeals, visit the website of the Missouri Division of Employment Security. See also General info about the Unemployment Claim process.
Thanks to your “family-friendly” Missouri legislature that took over in about 2002, fired workers and their families are now much closer to eviction and hunger than they were before the family friendly movement took over. (How “Family-friendly” does that sound?)
Effective with firings that occurred January 1, 2005 and afterward, the concept of “penalty weeks” died. Now, if you are fired for any form of “misconduct connected with work” (however minor), you are COMPLETELY DISQUALIFIED for unemployment benefits.
Before 2005, you COULD STILL GET BENEFITS after serving a few “penalty weeks” if you did something that got you fired. The unemployment department would issue the penalty depending on how severe the alleged misconduct was.
Doesn’t the OLD WAY sound fair — the worse the offense, the worse the penalty? For serious misconduct, you could be completely disqualified. But for minor infractions, you’d only get a few penalty weeks. And you would then start collecting benefits after serving your penalty weeks.
But now, you are completely S.O.L. if the employer trumps up a “misconduct case” against you. No unemployment at all. Starve. Get evicted. Oh, by the way, you’ll have a much harder time getting the State to provide any welfare or other assistance, due to the cutbacks in a lot of social safety net programs in the last few years. (Someone’s gotta pay for all the political tax relief promises, and it looks like the unemployed have to do your part, sorry).
I wish people would flood Jeff City with letters and calls about this dramatic change in unemployment benefits. Here’s how to find your Missouri Legislator – Missouri Legislator Lookup. Tell your family-friendly Missouri Legislator how you feel about being told you and your family deserve to starve over an incident of minor misconduct.
END OF RANT, I mean end of “History Lesson”
First, for the basics of the process, see The Missouri Unemployment Claim Process. Then return to here for tips about how to do an appeal.
An unemployment appeal is what occurs when either the employee or the employer is unsatisfied with the determination made by the first unemployment clerk to process the claim. The unsatisfied person then requests a “hearing” with an unemployment “referee.” I like to refer to the referees as “unemployment judges.” They really are judges in every meaningful sense of the word except their title, when it comes to deciding the fate of your unemployment issue.
The Missouri Division of Employment Security will give you some brochures talking about the appeal and the hearing process. Those brochures accurately explain that you do not have to hire a lawyer to assist you. But those brochures also do you a disservice: They seem to encourage you not to get a lawyer. So people do not usually get lawyers. That hurts a lot of people.
Just as in a real trial setting, the unemployment appeal is a trial. It is a trial regarding your claim for benefits if you are the claimant. If you are the employer, it may be a trial regarding whether your account will be charged for the benefit claim (or perhaps some tax-related issue). But the hearing is like a trial nonetheless.
Just like in a real courtroom trial, legal elements of proof have to be satisfied, and witnesses testify, documents come into evidence (or don’t come in, according to the rules of evidence). The person who requested the hearing has to prove the legal elements required by the nature of their appeal.
The loser of the appeal has a very tough row to hoe in getting the Labor Commission to overturn the decision of the unemployment judge. As a general proposition based on my experience with appeals, it is easier to win an unemployment appeal than it is to get the Labor Commission to reverse a decision of the unemployment judge.
The party who loses before the Labor Commission must appeal to the Court of Appeals or else drop the matter. It’s expensive to hire lawyers to go to the Court of Appeals for you. For employees, there is not enough money at stake in an unemployment matter to justify paying a lawyer to go to the Court of Appeals. Employers may find it cost-justified because of the increase in their unemployment tax rate if an unworthy claim gets approved, and for other reasons.
The Missouri Division of Employment Security has continued to build up their website, and now has put up a list of common types of appeal issues and some info about the legal standards that may apply to each issue, in determining whether you can get benefits. Check out Common appeal issues, and the legal standards required to be proved, from the Missouri Division of Employment Security website.
Testimony at unemployment appeal hearings is under oath. If there is a later legal dispute between the employee and employer, the testimony given at the unemployment hearing can be used against the party who gave the testimony. So if you think a legal dispute is in the works, be extra careful with unemployment hearings, because the things said could have a serious effect on your litigation later.
The main issue at unemployment hearings might, for example, be whether the employee was terminated for misconduct connected with work. The termination might possibly also be the subject of a potential Wrongful Termination claim, perhaps for some form of Retaliation or Discrimination.
Employees can use unemployment hearings to get discovery of what information the Company has against them. Companies can use unemployment hearings to learn what evidence employees have against them. Everything said by either party can be used against them later. Everything that was not said could be used against the party later. See my Complaints article for more info about how things said, and not said, can be used against you in court.
You get a lot of bang for your buck much of the time when you have a lawyer assist with the first appeal hearing. It’s relatively cheap considering how much money is at stake. For example, if you are a fully insured worker entitled to about $8,000 – $9,000 in benefits, and your claim was denied, your hearing will be like having a trial over a lawsuit of that amount. That’s a significant legal claim. Do you really think you could do as good a job as a lawyer could in fighting for your money?
If you lose the first hearing, it’s much harder to win on appeal to the Labor Commission, and it costs you more to have a lawyer help you appeal to the Labor Commission. Having a lawyer does not guarantee success, but it often makes the difference between winning and losing.
NOTE: It is illegal for lawyers to take a “contingency fee” out of your unemployment benefits.
In a QUIT claim, where the Division decided you quit, or abandoned your job, if you were a fully insured worker your claim could easily be worth $8,000 +.
In order for you to get benefits if you really quit, it’s quite common that you must make a Constructive Discharge – type of proof. You’ll probably have an easier time making your case if you have a lawyer assisting you, because these types of appeals can get so difficult and fact-intensive, and even require legal research and comparable court cases to show the unemployment judge. If you fail to have a lawyer assist you, and you lose your appeal, it’ll cost you a lot more to have a lawyer appeal to the Labor Commission for you.
However, if you quit to take a better paying job that started right away then it’s unlikely that you would need to prove “constructive discharge”; it’s possible, but unlikely. It’s possible to have to prove constructive discharge because the employer may dispute that you quit to take a better job, and so you’d better be ready with a backup argument, such as Constructive Discharge.
I handle unemployment appeals. The fees vary by the nature of the problem. If I am handling only the unemployment appeal for you, the fee will probably be a set flat fee. Sometimes I handle unemployment appeals as part of representing someone in a larger legal dispute, such as a wrongful termination case.
I try to make my fees affordable, because I know you are strapped for cash during your unemployment. But the first appeal usually takes me on average about 4-6 clock hours from start to finish, in total time working with you. Simple cases take about 5 hours, and more complex cases take about 10 hours. I do a roughly equal number of simple and complex cases, so the average is about 6 hours. Sometimes it takes longer than that start to finish, but rarely less than 4 hours.
My involvement starts with a meeting with you in the office, just like a regular legal consult as I describe in Services and Fees. Then we put together our evidence, perhaps in other meetings whether in person or by phone, and I may perform legal research. Then we meet, probably several times, to prepare for the hearing. Then we do the hearing, which we will expect to last between 45 minutes to 2 hours (sometimes longer). Then we will debrief after the hearing. Then we will talk about the judge’s opinion when it’s issued a couple of weeks later.
The total time I spend will most likely be 4-6 hours. – Other lawyers may have a different process, but I use the process that I deem to be most effective for my clients, based on long experience, and I charge accordingly.
See Services and Fees (and click the Unemployment Appeals section) for a detailed description of how I do fees for unemployment benefit problems.
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).
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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