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Should You Meet, or Shift the Burden of Proof

The burden of proof is that thing in law Judge Judy (my sister's TV addiction) harps on to the plaintiff and defendant, just to get them to stick to relevant facts, they indeed need to PROVE, or rebut, to shift the burden .. to win a favorable judgment from her .. the DECISIONMAKER.  

I mention a TV courtroom, because when she does harp, she explains well, if you listen, what both you and an employer are expected to know before attending a lower level unemployment hearing .. just about anywhere across this country.

Preparation for an unemployment hearing should always shoot to meet the burden and attain the standard of law applied at these hearings .. a  preponderance of the testimony and/or evidence .. not fulfill some desire to let an employer know how you really feel about them .. or alternatively, suffer defeat from frozen vocal cords.

If you quit, or were fired from your job and get benefits with the initial determination, please think twice about any decision many make and not attend an unemployment appeal hearing.  It's already been docketed and will be held without you when an employer appeals benefits. If you don't understand what's at stake if you lose by default due to a non-appearance.   It's an  unemployment overpayment, unless you can show good cause for your non-appearance with an appeal to an unemployment board of review .. and hopefully, get a rehearing.


Unemployment's  Burden is Initially Assigned to the Moving Party 

There's basically, only three ways to move and end an at-will employment relationship.

All three causes, including being laid off can be argued with some level of validity, to be an employee's fault by employers.

  • Being fired for a lack of work - Typically, this is an indefensible position for an employer.  But when an employer throws an offer for a different job, prior to the layoff, know they often respond to an unemployment department to include there was also a refusal of suitable work.  It's a strategy that effectively shifts the initial burden they are unable to meet .. to you.   Meaning you would now have to prove good cause for a voluntary quit, unless you can prove it's unsuitability .. or at least the absence of a bona fide offer of work.  Answers about suitable and unsuitable offers of work.
  • Being fired for misconduct connected to the work - Definitely theemployer burden to prove your guilt, but that it rises to a level an unemployment department agrees is work misconduct.  To assist with meeting this burden an employer usually codifies some, or all of it's reasonable rules and expectations the at-will employer (business entity) has a right to expect of it's employees in an employee handbook.  When new hires come on board, most will have to sign an acknowledgement proving their receipt of the handbook.  Handy, so any testimony denying you had, or should of had prior knowledge of the rules and policies isn't easy to wiggle out of.   However, even the best laid plans can be screwed up by other employees, such as managers, supervisors, team leads and even HR professionals who ignore, or play fast and lose interpreting those rules.  When that is your case, I would suggest using write-ups, or an unambiguous email that establishes some counter documentation as why your actions do not violate employer rules and polices and ask your written communication be attached to the write up in your personnel file.  (Of course you will need to keep your own file in case you need documentation in support of your rebuttal argument to prove you're not actually guilty of work misconduct .. should the employer responses to an unemployment department .. not make sense to you .. after a discharge.  Answers that may help explain what's not willful misconduct connected to the work?

If You Don't Know What There is a Burden to Prove, How Do You Expect to Rebut It?

There's plenty more Unemployment Q&As to explain the necessity of orienting your argument to the burden to be proven. 

However, proving facts can be a challenge for even those life me .. who know the rules but go brain dead in front of crowds .. more than one in number.

The California EDD free ebook,  (I quote and link to it on your right) is just one resource to explain a critical part of the unemployment process of lower level appeals.   

I link to more state and federal resources on the UI law resource page such as laws, and precedent decision manuals .. if I can find them.

Yet this one simple ebook made a whole lot of sense to me at a time I needed to make sense .. so I recommend reading it for anyone who must represent themselves .. 

I do unemployment hearings by diying it .. but that doesn't mean I still don't wish I could talk more who did in fact, lose their job through no fault of their own .. down from that ledge.

Referrals to Professional Unemployment Hearing Reps

The following is relevant and found in  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.

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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