This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.
Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 2 of a 3 part series on handling UC claims and addresses best practices for preparing for and participating in a Referee’s Hearing. Part 1 can be viewed here.
Preparing for the Referee’s Hearing
- Know relevant facts inside and out.
- Review Notice of Hearing to confirm issues that will be addressed at the hearing.
- Identify and prepare necessary witnesses. Only present witnesses with first-hand, direct knowledge of relevant facts. Avoid hearsay and second-hand testimony.
- Timely request and serve a subpoena for any necessary adverse or other witness that is not readily available to you. Be sure to check the availability of all necessary witnesses in advance!
- Timely request a continuance if necessary.
- Identify, assemble, and organize relevant documents to be introduced at the hearing. Each document used at the hearing must be identified and authenticated by a proper witness (one with first hand knowledge of what the evidence is). Bring 4 copies of each document to the hearing (one each for the witness, the employer’s presenter/representative, claimant/opposing attorney, and the Referee).
- Review the Referee’s file prior to the hearing. You can do this the day of prior to the start of the hearing or prior to the hearing date.
- Request copies of any claimant statements or other documents that you don’t have which could be helpful to (or hurt) your case.
- Prepare an outline and/or questions in advance to avoid missing any important points.
- Determine if any witness qualifies and will need to testify by telephone and if so make a prompt request. The Referee may schedule testimony by telephone when a party or witness is located at least 50 miles from the hearing location.
- Testimony by telephone of a party or witness may also be allowed, at the request of a party, when the parties consent to the receipt of testimony by telephone or the party or witness is reasonably unable to testify in person due to a compelling employment, transportation, or health reason, or other compelling problem.
- Special rules apply to hearings involving telephone testimony. For example, special notices must be issued by the Referee’s office well in advance of a hearing involving telephone testimony (as much as 14 days in advance). Submit a request for permission to present telephone testimony as soon as possible.
- Documents to be used in connection with the telephone testimony must be identified, exchanged, and provided to the witness who will testify by telephone in advance. The party requesting testimony by telephone is responsible for identifying, assembling, and providing documents. The requesting party must supply the name, location, and telephone number of any witness who will testify by telephone. The witness may be questioned to confirm identity.
At the Hearing
- Be respectful and polite to the Referee, the other side, and witnesses despite the adversarial nature of the hearing. Referees will evaluate your actions during the hearing including an assessment of your credibility. Substance/facts–neither style nor grandstanding–will carry the day.
- Organize and present your case in a logical and clear manner. Start with relevant background, present a chronology of events, and tell the Referee what the case is about early on (e.g., the Claimant was terminated for stealing), then go back and fill in details.
- Stick to relevant facts: Get all important facts in the record; avoid getting side tracked and distractions.
- Object to irrelevant or improper testimony or documents. Use your judgment and common sense, if it does not seem relevant, state an objection on the record.
- State on the record if you feel that the Referee is precluding you from presenting relevant information. This could be important if there is an appeal.
Stay tuned for Part 3 of this series. In part 3, we will provide tips for appealing a Referee’s decision, when to involve legal counsel, and filing required reports.