Unemployment Appeal (TN) - Must Employer Stay on Topic at hearing?

[TNScribe]

What is the name of your state (only U.S. law)? Tennessee

My simple question is this - At an appeal hearing, must the employer stick to proving/disproving the reason for firing; or can they introduce new topics at the hearing?

Background is below.

I was "fired" from my job as a reporter for a small local paper the day after Christmas 2012. The separation notice stated "Missed deadline. Warnings given."
The company is an "at will" employer.
I did not file for U/E benefits immediately, as I thought being fired automatically precluded me from receiving benefits. A friend encouraged me to apply anyway, and I began receiving benefits a few weeks ago. My former employer has appealed the approval.

I had covered a contentious public meeting, which ended after 8 p.m. on a Tuesday. The topic was a 'hot' one and I wanted to cover it properly. I spoke with the copy editor early the next morning, seeking direction for the story. I filed a story which covered the main administrative points, noting that a more thorough report was upcoming in a subsequent issue. I did not 'miss' a deadline, and I can easily document this with copies of the paper. Regards "warnings given" there was a scheduling snafu a year before (Dec 2011) and mis-communication caused me to miss covering an event personally. I took the company's warning without spending too much time arguing/documenting what had occurred. (go ahead, spank my hand)

As always, there were underlying nuances which led up to the firing. My reporting was hugely popular with the community, and I won 11 press awards in 2012, including one for investigative journalism. I had been pressing the publisher and editor for promotion/raises/evaluation. We just weren't all in love with one another, and the 'missed deadline' was a good excuse to end our relationship.

Preparing for the appeal hearing is easy if we are sticking to the issue -- I just have to produce copies of the paper for the days/stories in question. At the time of my phone interview, the reviewer read their complaints which I could easily respond to. She was unconcerned about a missed deadline a year prior (warnings given), as they had continued to employ me a full year after that infraction.

I'm concerned that the employer will deviate from what was stated in the separation notice, and in their initial protest of the UE claim. (As in now raising other issues like attendance, schedules, personality conflicts). Should I prepare for "new" topics to be raised, or will the Appeals Officer hold their feet to the "fire" and make them stick to the topic at hand?

 

[commentator]

If the appeals referee is worth their salt, they will have already picked out the germinal issue in this termination. And that will be the reason that was given by the employer for your termination. "Missing deadlines" seems to be their issue. And in the initial appeal it has already been determined that you were not guilty of missing deadlines, you were given no warnings and no opportunities to change your behavior which you chose to disregard, continuing to miss deadlines, ignoring the anticipated consequences, until they finally fired you.
So it is determined initially that they did NOT have a valid misconduct reason for the termination. All you have to do is stick to your original facts. You've already won the first round.

This is all you need to deal with in the appeals hearing. You present your facts quietly and firmly and professionally, showing that you did not miss deadlines, you did not receive warnings which you chose to ignore, you ALWAYS DID YOUR JOB TO THE VERY BEST OF YOUR ABILITIES, and you were discharged unexpectedly, completely unaware that you were in danger of being terminated.

You may want to add that you received several awards for excellence, and that you had, on several recent occasions, asked your employers for a promotion or a raise based upon your good performance, and that you suspect this may have had some bearing on their sudden desire to fire you.

If your employer comes into the hearing and begins to bring up irrelevant behavior, such as, 'and in addition to this, this person was told three months ago to write a story about.....and they failed to do so" or "and this person, in addition to missing the deadlines, was always late to work and never kept his desk neat, and we caught him going through someone else's email, and we think he was stealing from the coke kitty in the break room" it will do nothing but help YOUR presentation of the case.
It is certainly not necessary for you to refute everything including that you failed to wash your hands after using the restroom at work.

Usually, the referee/appeals officer will stop this sort of rambling and say, "I determine relevance here, and what we are discussing is whether the claimant missed deadlines and received warnings for this." But even if they don't, responding to these new charges and allegations would be very weakening to your case, as they are not going to be considered anyway, and being defensive will not improve your image. If the employer produces new and malicious and even untrue things about you, and you stand up and scream, "That's a lie, and you take that back you so and so!" you have done nothing but hurt yourself. You do not have to argue with every point they decide to try to make.

The only issue that is supposed to be considered in this hearing is whether or not you failed to meet the deadlines, were warned that this was not acceptable, were given the opportunity to change the behavior and chose not to do so. Even if they try to do the "kitchen sink" argument, and throw in everything they can think of including the kitchen sink, the appeals officer is going to seek to keep the hearing on the important issue, which is the actual original reason they offered for your termination.

Your brevity and professionalism, your firm brief stance that you did nothing wrong, that you always did your best and that your job performance involved no voluntary misconduct of any kind, particularly missing the deadline, the reason you were supposedly fired is all you need to show. Be brief, be on fact, and then stop talking.

Listen carefully to the questions that are asked, be very brief and succinct in your answers, and YOU stay on target. Don't worry about what the employer does.

 

[justalayman]

a very small addition:


if additional reasons are allowed (which would not be appropriate at this juncture), if you are not prepared to address/defend them, do not do an off the cuff defense unless it is appropriate. If it requires gathering information to defend the claims properly, object to them adding additional reasons and seek a continuance to be allowed to properly gather information to rebut their claims.

 

[commentator]

This is probably not going to be allowed to happen here. Bringing in a whole new kettle of fish, even if it is definitive proof of dramatic on the job wrongdoing by the claimant, such as theft or embezzlement is not going to be admitted to this hearing on this decision to grant benefits. Going all legal on them and objecting and requesting a continuance to gather evidence about a new allegation isn't something that commonly happens in agency hearings of this type. It is not going to be necessary. As I said, a good appeals referee isn't going to let this go very far.

What would be very relevant, and what they would allow would be say, actual copies of written warnings that were not presented in the initial inquiry that showed that the employee was given written warnings for missed deadlines. The classic example of additional information is actual video of the person committing the misconduct that they were accused of and that was given as the reason for their termination. It isn't even uncommon for the employer to create such warnings (that the former employee has never seen before) and bring them in to the hearing. If this happens, the claimant should simply state, "I have never seen these warnings, I was never given these warnings, I did not sign these warnings. That is not my signature." Remember there is the expectation that either party may be lying.

But if you canned Joe Blow for sleeping on the job, and then after he was gone you found that he was actually embezzling company funds, you still couldn't bring that up on appeal of his unemployment benefits, and have them deny him because he was embezzling. The original reason is the reason that they use in the whole unemployment appeals process.

 

[justalayman]

commentator;3167277]This is probably not going to be allowed to happen here. Bringing in a whole new kettle of fish, even if it is definitive proof of dramatic on the job wrongdoing by the claimant, such as theft or embezzlement is not going to be admitted to this hearing on this decision to grant benefits. Going all legal on them and objecting and requesting a continuance to gather evidence about a new allegation isn't something that commonly happens in agency hearings of this type. It is not going to be necessary. As I said, a good appeals referee isn't going to let this go very far.

hopefully you are right regarding this (as you usually are). My post was not meant to suggest going "all legal". It was merely meant to avoid inserting foot into mouth if it does come to that. It is usually hard to extricate it once it gets stuck in there.

 

[TNScribe]

Wow! Thank you for your thoughtful responses. This is what I suspected, but I worried that they'd bring in the "kitchen sink" as you say ... and catch me unaware.

I am reassured.