The Unemployment Hearing--a Trap for the Unprepared Employer

The simple unemployment hearing. It appears to be a low stakes proposition for an employer to contest the unemployment benefits of a terminated employee. However, the stakes may be higher than just the payment or denial of unemployment benefits. If management or supervisory witnesses testify under oath at the hearing, it is possible that they may make admissions that can be used against the employer in litigation brought by that same terminated employee. In other words, if the terminated employee later files a complaint for discrimination or harassment, anything the employer's witnesses said at the unemployment hearing can be used against the employer in the litigation.

Moreover, anything the employee says at the unemployment hearing can be used against him or her also. Thus, an unemployment hearing can be an opportunity to gain information and admissions from a potential plaintiff.

Our advice: an employer should have an attorney present at any contested administrative hearing. Counsel can prepare and advise company witnesses and also use the hearing as an opportunity to cross-examine a potential plaintiff.