Burden of Proof: What does it look like?

by Heather
(California)

I recently had my appeal hearing for Unemployment. I attempted to subpoena some documents but was denied my subpoena and the Judge stated his reason was because I did not need the documents. He stated that my previous employer had the burden to prove I was terminated for misconduct. I do not believe that my employer proved anything. They told the Judge what other people said. They did not have written statements from these "witnesses" or any other physical documentation of the allegations made against me. I have been trying to research here in California, what exactly my former employer would have had to enter into evidence to meet this burden of proof. So far they have hear say. Just in case I do not win the hearing, though, I want to be prepared to appeal that decision and have information to support my claim that my employer did not meet the burden of proof. Hope this makes sense. Thanks for any assistance or information you can provide.



Hi Heather,

That is the ALJ's decision.

I know what I always liked .. direct testimony to events and the documents.

Most people who try to keep their butt out of legal "hearings" will not be ready for the legalities of even an unemployment hearing .. therefore, rendering the record void of things to raise on appeal because they sat there and didn't put things on the record .. such as requesting a continuance if you really needed that document subpoenaed. Objecting to employer testimony on the basis of "hearsay" etc.




What I have know "direct testimony" trumps hearsay If someone says .. I was told .. object it's hearsay.

But I also know that hearing officers are given wide discretion in judging credibility. So, I say, make sure you get whatever you need into the record. He/she might not of thought you needed the documents, but what would you have done if the employer showed up with a a load of new ones that weren't in the state file. Object .. request a continuance and another subpoena .. on the record.

Evidence is weighted and direct testimony is supposed to be weighted more than hearsay or statements which lack direct testimony.

The example I used when trying to persuade a manager that was needed, into attending a hearing, was the need for a first hand witness was because a document can only lie flat. It cannot testify and it cannot be cross examined, but when the content of the document is testified to with direct knowledge .. It comes alive and the combination is powerfully, persuasive.


Did you research for the rules of procedure for unemployment hearings in CA? .. Maybe you can find them at the CUIAB.






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May 23, 2011
pre hearing
by: Anonymous

When you file for unemployment and the burden falls on the employer, Isn't it true you get your benefits until the employer can show you shouldn't be getting them at a hearing. And why is it when you file for UI you get a letter from them saying they would do a phone interview and then they say you are denied because they say they feel the employer met there burden after just talking to us both over the phone?



Well now, you are talking about realities vs. a perfect world.

There are two things involved in the unemployment process that destroy the perfection the overview of unemployment seemingly presents.


Humans and money.

Thank goodness there is unemployment appeal hearings that conduct a full fact finder .. but still, you must compel the hearers of facts to pay attention to the laws when deciding the facts.

Hell .. even the Supreme Court issues politically and personally, biased opinions.

Oct 19, 2010
Update
by: Heather

Hey Chris. Just wanted to say thanks again for previous advice and info you provided to me. I did win my Appeal Hearing as my former employer failed to meet the burden of proof regarding misconduct. Of course my employer is appealing the ALJ's decision but hopefully the Judge's decision will stand. Thanks again. You have a great site here and the help you provide to people is wonderful. Take care!
Heather




That's wonderful Heather!! I love it when the news is good!

Aug 31, 2010
Thank you and.....
by: Heather

Thank you for your information and thoughts. I just have to hope for the best I suppose. But I do have one more question for your. On my termination notice my employer referenced two verbal warnings that never occured. I was not sure what they were claiming were the verbal warnings until the actual hearing itself. Now that I know what they were referencing I have proof and documents that prove they are lying AND that they lied under oath. What do I do? Who do I provide this information to?


I don't believe you can now .. not unless you lose this hearing and appeal the decision and then somehow manage to get it remanded back so that you can present additional documents and testimony.

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