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Why You Might Need an Attorney at Your Unemployment Compensation Hearing

If you believe you have been wrongfully terminated from your employment, based on discrimination or some other illegal reason, and you file for unemployment, your employer may appeal any award of benefits you are given. In that situation, it is critical that you inform your employment discrimination attorney about the unemployment compensation hearing. If your attorney misses the opportunity to participate in that hearing, you are denying him a golden opportunity.

What happens at an unemployment compensation hearing?

When you apply for unemployment compensation with the Alabama Department of Industrial Relations (DIR), an initial determination is made as to whether you are entitled to unemployment compensation. If you are awarded benefits, your employer has an opportunity to appeal, and assert that you were terminated for some type of misconduct. If the employer is successful, then your benefits may be reduced, or denied altogether.

The appeal process is much like a bench trial (i.e., trial before a judge), in that both parties are allowed to call witnesses to testify and put on evidence during the hearing. Both parties are also allowed to be represented by counsel during the proceeding, although it is not required that they do so. The most important aspect of an unemployment compensation hearing is that, once the appeals referee makes a determination on the merits of the employee's claim, the issues that are decided may not later be relitigated in court. In other words, if the appeals referee determines that you were actually terminated for cause, you cannot later sue your employer for terminating you for filing a worker's compensation claim, for instance. This could be detrimental.

Why is it important to be represented by an attorney?

Because of the potential for losing your discrimination claim, depending on the findings of the appeals referee, it is crucial that you have an experienced employment discrimination attorney there to represent you at your unemployment compensation hearing. It provides your attorney with an excellent opportunity to thoroughly examine your employer's representative and obtain critical information before filing the lawsuit.

The situation can be even more beneficial if the employer does not send counsel to the hearing with the company representative, which is often the case. Your attorney may have the opportunity to question the witnesses without objection from opposing counsel or rebuttal evidence being brought to light. Even if your employer provides its representative with legal counsel, it would be that much more crucial that you not attend the hearing unrepresented.

An example of what could go wrong

Consider the case of Peter Hepp, a former employee of Wal-Mart, who was terminated after filing a worker's compensation claim for an on-the-job back injury. He filed for unemployment compensation benefits with DIR and was initially denied benefits. When he appealed, Wal-mart responded that he was terminated for dispensing freon without charging a fee. Neither party was represented by counsel during the hearing. The appeals referee determined that he was terminated for violating company policy, which was considered misconduct. Therefore, he was disqualified from receiving full benefits.

Hepp then filed a lawsuit against Wal-mart, alleging that his termination in retaliation for filing a worker's compensation claim. Ultimately, the Alabama Supreme Court determined that the employee was barred from relitigating the reason for his termination, because DIR had already ruled that he was terminated for cause. Since both parties at the hearing had "an adequate opportunity to litigate the issues," including presenting witnesses and evidence, as well as the option of being represented by counsel, Hepp was now estopped from maintaining a civil action for retaliatory discharge.

Therefore, the first opportunity to pursue and protect your claims can come when you file for unemployment compensation. Proceeding through this process without the benefit of counsel can potentially damage an employment case. If you are facing an unemployment compensation hearing, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.