Have you received a determination in the mail denying your unemployment benefits application? You may be surprised to learn that the Wisconsin Unemployment Insurance Division frequently gets applications wrong – improperly denying benefits to candidates that qualify for unemployment benefits. Your remedy is to file an appeal to reverse the determination and receive benefits. Read below to find about more about the appeal process.
I WAS DENIED BENEFITS, SHOULD I APPEAL?
Almost certainly yes, but do not wait to file an appeal. Once you receive your denial determination in the mail, you often have a short window to file an appeal. For example, a determination dated October 31st may have an appeal date deadline of November 16th. You must act quickly to preserve your appeal rights and challenge the denial of benefits.
OK, I HAVE FILED MY APPEAL NOW WHAT?
Once you have filed your appeal, the Division will assign your case to an Administrative Law Judge who will hold a hearing to consider your appeal. The Hearing is done by telephone and is recorded and under oath. Although the exact timeline will vary, typically the Hearing will occur two to three months after you file your appeal.
WHAT EVIDENCE CAN I PRESENT AT MY APPEAL HEARING?
The most common evidence presented at an appeal hearing is the oral testimony of the applicant seeking benefits. Oral testimony is your chance to explain your side of the story regarding your separation from employment and the reasons why unemployment benefits should be awarded. The applicant may also bring witnesses to the hearing to give testimony supporting his or her story. Additionally, documents and records may be submitted as exhibits such as emails, letters, text messages, business records, phone bills, etc.
WHAT ARE SOME COMMON REASONS THAT UNEMPLOYMENT BENEFITS ARE WRONGLY DENIED?
The most common area of contention is a determination that the employee quit under Wisconsin Statute § 108.04(7). Employees who quit their jobs are not entitled to benefits. However, this finding is often in dispute as the Division often wrongly finds that the employee quit when in fact the employee was terminated. There are also numerous exceptions to the quit statute including (i) for good cause attributable to the employer (ii) for medical reasons (iii) or if the employer changes the employee’s shift (among other exceptions).
Another area that frequently arises is a finding of “misconduct” under Wisconsin Statute § 108.04(5). Misconduct generally applies to severe and substantial conduct by the employee that is contrary to the employer’s interest. For example, theft, violence, drunkenness, falsification of business records, and other criminal activity. However, the Division often over applies the misconduct finding. General disputes at work, poor performance, missed deadlines, and other common reasons why employees are fired do not give rise to a misconduct finding.
DO I NEED A LAWYER TO REPRESENT ME?
A lawyer is not required to file an appeal or to appear at the appeal hearing. However, a lawyer can help prepare your appeal for you by gathering evidence, submitting exhibits, interviewing witnesses, and drafting a legal argument to be submitted with your appeal. Most importantly, a lawyer can represent you during the hearing providing direct examination and presenting opening and closing arguments to the Hearing Judge. Hiring an attorney is often also an effective way to communicate to the hearing Judge that you are serious about your case.
I NEVER RECEIVED A DETERMINATION AND MY BENEFITS HAVE BEEN PENDING, WHAT IS GOING ON?
When you file an initial application for unemployment benefits, an adjudicator is assigned who reviews your application and makes an initial determination either awarding benefits or denying benefits. Unfortunately, due to the COVID-19 pandemic, the State of Wisconsin is backed up in processing claims. Many claims are taking months or longer to reach an initial determination. If you are in this situation, you may call the Division to inquire about the status. Unfortunately, there is no formal mechanism in the claim stage to expedite, appeal, or otherwise address an application before a determination has been made.
HOW MUCH WILL IT COST TO RETAIN A LAWYER FOR MY UNEMPLOYMENT APPEAL?
Please contact us at 262-652-5050 for a free initial telephone consultation. While every case is different, typically the cost to represent you in your unemployment appeal will be a flat fee of between $500 to $1,000, representation exceeding $1,000 only in the most complicated or involved cases. Please also ask about our flexible payment options. Our offices are located in Kenosha, but we represent claimants throughout the State of Wisconsin.