Search This Site.

Unemployment Insurance Benefits and the Burden of Proof 

Unemployment's  burden of proof is correctly assigned to the party that ended the at-will employment relationship.  However, who actually was the moving party, can be confused by how employees choose to apply, or employers choose to respond to a notice a claim was filed against them.  

A winning strategy from before you apply for benefits, might be to understand how to position your argument for benefits, to the burden of proof, which means in reality you are expected to meet the standard of law controlling the findings of facts.  During a claim adjudication interview the standard is based upon the available information.

At unemployment appeal hearings the standard of law to meet, or rebut to  is to achieve a preponderance, through testimony and/or evidence.

When to Prove and What to Rebut

If you were the employee fired from your job, understand the unemployment department expects you already know it's the employer that must prove they had good cause for terminating you .. because who applies for unemployment .. without first understanding how unemployment law works.  Good if fired from a job means the burden to be proven is .. work related misconductPlease don't rebut this burden in such a way that you end up aiding abetting, or offering an untenable piece of information that literally proves the the employer's burden.

When you quit a job, you're the one who must prove the reason you quit was with good cause.  Good in this instance means to prove the fault for you deciding to quit, was your employer's.  The question though .. is how do you prove good cause .. if you don't know what's expected of employees to have a better shot at  proving fault as being attributable to the work, or employer.

If you're not the party assigned the burden of proving fault, it doesn't mean you don't have anything  to prove, but now they call an appeal argument .. a rebuttal of the burden your opponent must meet, or sustain, if initially met  at the claim level.. when both you and your employer are in attendance at a lower level unemployment appeal hearing.

If you quit in lieu of being fired.  Aside from the fact I know there is valid strategies for an employerto avoiding the burden to prove misconduct,  in lieu of,  is what strongly suggests to me,  no alternative was left for the employee but to voluntarily quit their job .. and possibly .. because they were in fact, fired for some reason the employer knew was weak on proof .. to prove misconduct.  Imagine this scenario, if you will, as a strategy to potentially obtain the best proof possible to deny benefits after someone quit in lieu of being discharged .. for no good reason, a resignation letter .. that mentions nothing about the underlying circumstances for that letter.  

If you quit a job in anticipation of being fired, the burden will generally be assigned to you the claimant, because the word anticipation suggests, the employer was, at least on paper, still apparently giving you time and opportunity to correct some deficit in your performance as an employee .. On paper, I mean likely via documented written warnings, or PIPs (performance improvement plans).

If you were laid off, the natural assumption is your were discharged from your job also, but since laid off is a different way to say being fired for a lack of work, ethical employers simply admit fault when they respond to the notice of a claim filed, which is sent to them by the unemployment department.  But I'll warn you now, it was not for employer to respond to a lack of work claim to leave their options open

In other words, I wouldn't fall off my chair, if I read your employer's claim response and it said ... "claimant's position was eliminated, but also refused an offer of continuing suitable work.

No matter what your issue is, or who has the burden to prove fault, preparation for an unemployment hearing is basically, the  last shot you will have to focus on what is relevant winning, or keeping any benefits you might of already received and spent .. maybe.


Preferably, preparations to meet, or rebut a burden, begin before you apply for benefits, meaning you already know the from which direction the initial eligibility adjudication questions should come from, and how best to answer those questions relevant to what you know you may also have to prove, or rebut as fact at a hearing.

I say this because I know from firsthand experience, it's you, or an employer who may have to appeal the initial eligibility determination to get further in the process.  Hearings are what result when an interested party disagrees with an initial determination about how you came to be separated .. with, or without good cause.  

Being prepared before you apply, simply means you're that much further ahead of the game because you know the basics of what's expected of you, when it comes time to relate your story objectively with relevant facts at a lower authority hearing, held by an unemployment tribunal, or commission.

Any way you slice it, what the burden of proof means to you and for your particular case is knowing what the moving party has to prove and that should be what guides you to know how to prepare so you can attain, or sustain the standard of law applied to testimony and evidence, at these hearings.

the burden is about  meeting or rebutting to strive toward proving relevant and truthful facts, that compel a a hearing decision made by a preponderance of the testimony and/or evidence on the record. 


Who is the Moving Party 

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

  • 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.

There's close to 4,000 Unemployment Q&As.   I think I've consistently tried to explain to improve your chances of collecting unemployment benefits there is a necessity to orient any appeal argument to the burden specific to the issues listed on hearing notices. 

However, proving facts can be a challenge for the best employees and yes, sometimes employers who may rely more on what you don't know about the process, than assume you do know about it.

California's Unemployment Insurance Appeal Board has 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 found on the free resource page.   But I like 27 Ways because it addresses what claimants of benefits often miss  .. quasi-legally speaking.

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 the actual burdens attached to the issues on a hearing notice can be a grave mistake,  very difficult to impossible to undo, with what isn't a second chance appeal, or a second level appeal to the higher authority Unemployment Insurance 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.

} }