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Should You Meet, or Shift the Burden of Proof

The burden of proof is what Judge Judy (my sister's hero and TV addiction) harps on to small claims court plaintiffs and defendants.  All she wants them to do is stick to the relevant facts, they indeed should be sticking to to  PROVE, or REBUT the burden of proof .. that is if they want to win a favorable judgment from her .. the final DECISIONMAKER.

I mention TV court only because when she does harp, I think she explains what it means to meet, or rebut a burden of proof .. and it's basically, the same standard of law being used that  you and an employer should understand before attending a lower level unemployment hearing  and in just about any state across this country.

I know I sound like a broken record .. but 

Preparation for an unemployment hearing should always shoot to be relevant, to the listed issues on a hearing notice.   Whether this means you must meet the burden of voluntarily quitting with good cause, or rebut the employer burden to prove misconduct .. I don't care because you're expected know and prepare for this before the hearing, or basically, the last shot you, or an employer gets to collect, or deny benefits.

Any way you slice it, your position is also to prepare to attain the standard of law applied to the testimony and documentation submitted at  lower level hearings.  It should all meet, or rebut the burden of proof via a  preponderance of the testimony and/or evidence.

Sometimes avoiding expressing what you know and  feel can feel contrary to what you think should be the best strategy at a hearing.

To you I would say .. DO NOT, I repeat DO NOT  use a lower level unemployment appeal hearing to fulfill some latent personal desire to finally let loose on your former employer (or an employee for that matter) as feelings are usually only subjective .. or by which many reveal things I would tell them are better left unsaid on the record of this hearing.

Alternatively, some people, that get the whole quasi-legal concept of meeting, or rebutting to the standard of a preponderance, get even more why they could run into stumbling blocks created by their response to emotional things.   I .. personally have been known to babble under pressure, or get a case of brain freeze. brain.

It's important to stay on your toes and constantly evaluate what to say next, or ... when not to say anything.

If I'm able to refer you to an affordable UI hearing rep, or you can afford an actual unemployment attorney, my sincere suggestion is do it .. since even employers know they benefit after hearings from the objective experience and skills of those who meet and rebut unemployment insurance law's burden of proof each day .. for a living.

You can learn more about hearing rep referrals and coaching here.

Unemployment's  Burden is Initially Assigned to the Moving Party 

There's basically,  three ways for a moving party to move and end an at-will employment relationship.

All three including some methods of laying off for a lack of work, can be argued to have some validity based in unemployment law ..  to be the employee's fault.

  • Being fired for a lack of work - Typically, an indefensible cause for an employer to fight benefits. However, what happens if an employer suggests there may be a different job for you, prior to the layoff?  Know that it is possible they may respond to an unemployment department to include the fact you also refused suitable work.  It's a strategy that may, or may not effectively shift the initial burden to you .. even if your job was eliminated. 

Answers about suitable and unsuitable offers of work.


Answers that may help explain what's not willful misconduct connected to the work.

  • Voluntarily quitting a job for good cause attributable to an employer - Just one more way to say the employer may be proven at fault, for you deciding to quit.    It's the burden of proof few employees prove however.   What goes into proving you had no choice .. but to quit?   Even if you quit in lieu of being discharged.  
  • Answers about meeting the burden to quit a job.

If You Don't Know the Burden to Prove, How Do Will You Rebut It?

There's close to 4,000 Unemployment Q&As and if you ask me, I consistently tried to explain the necessity of orienting an appeal argument to the burden that must be met, or sustained as being met after a lower level UI hearing.  

However, proving facts can be a challenge for the best employees and yes, even employers.

California's Unemployment Insurance Appeal Board a free ebook entitled    Twenty Seven Ways to Avoid Losing Your Unemployment Appeal

Of course there's a lot of other state and federal resources on the UI law resource page, but I like 27 ways because it addresses what claimants of benefits often miss about how important a tribunal hearing is to the future of their unemployment benefits. 

Source: Twenty Seven Ways to Avoid Losing Your Unemployment Appeal

Parties to appeals, particularly claimants, often focus their attention only on the separation (discharge or voluntary quit) issue and overlook such additional issues as: alleged false statements, overpayments, availability or claim filing requirements. 

"You may be astonished to hear what the other side has to say when they get before an ALJ. If you approach preparation of the case as if it were your own appeal, you will be better prepared to meet whatever contentions the other side raises."

Parties to appeals often misconceive the issues. For some unknown reason, the claimant who has been disqualified for quitting without good cause spends time and energy producing such things as favorable performance reports to prove he or she was a good worker or, in a case of a discharge for alleged misconduct, comes to the hearing with a long list of complaints about the employing company and job conditions.

Not focusing on preparations to meet or rebut the actual burden attached to the issue on a hearing notice .. is a grave mistake .. very difficult to undo with a second level appeal to an Unemployment Ins. Board of Review.

Articles  and Q&A Related to Unemployment's Burden of Proof

Working on the Burden While You're Still an Employee  - It surprises many to hear what I know caused their inability  to prove good cause to quit, or lack of any if they end up fired.  It's frequently nothing more than what they didn't choose to do save and preserve their job .. while they still had a job.

What is the Burden of Misconduct to Fire an Employee - The fortunate thing about the burden of proof for an employer, is that work misconduct has been condensed into a definition by a court decision dating back to 1941.   It's been adopted, all, or in part, by many other states over the years and can  help even an employee who got fired, understand what misconduct is .. and what it isn't.

Q&As about the Burden of Quitting a JobAlthough the burden of proving fault is supposed to be connected to and attributable to the work, or employer, some state unemployment laws also special provisions that create exceptions to this rule when/if certain conditions are met .. but the point is those who quit, even for a reason covered by a special provision to create an exception to the rule, must meet some conditions to prove they still had good cause to quit.

Q&As about Rebutting the Burden of Misconduct -  Tell me a story that explains, or just claims, why you don't think you're guilty of breaking employers rules and standards and expectations of behavior and or performance an employer has a right to expect, may be good enough for me, but I'm still going to ask you questions relevant now to whether you possess the ability to rebut why the employer can't prove your guilt.

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