How to file a successful unemployment claim

If the Great Recession taught us anything, it's that there's no such thing as job security for most Americans. The economy has improved since then and hiring has picked up. Yet many people still worry about their jobs ─ and some are still losing them.

It's no wonder, then, that as part of my employment law practice at Scaringi Law I get a lot of calls from people who are not sure how to file an unemployment claim or whose application for benefits has been denied.

Before we take a closer look at how to successfully navigate the system, here's a little background: Unemployment compensation is insurance against unemployment, run by the state. You pay a small portion of the premiums, by payroll deduction, and your employer pays the rest, by quarterly contributions.

As with other kinds of insurance, the state, acting as insurer, decides whether a claim for unemployment benefits should be paid and employers are able to challenge claims.

One tip I like to give at the outset: It's always worth it to file a claim and appeal any denials. As you'll see, it's not uncommon for people to be approved for benefits after initially being turned down.

Filing a claim

If the job loss is the result of a layoff, furlough, downsizing or some other process beyond the employee's control - where fault is not an issue - a claim for benefits is generally uncontestable. Employers can challenge a claim in cases involving alleged misconduct or if a worker has quit.

After a claim is filed (usually online), the state determines if the employee is financially eligible for benefits. This eligibility is generally determined by whether the employee has worked enough hours over the past four quarters. If you've worked at least part time over the last year, you likely qualify.

Determining fault

The claim form will seek information as to why you lost your job. It is crucial to emphasize any reason for your unemployment that you believe is not your fault. Even if you resigned but feel you were forced to do so for "necessitous and compelling" reasons, you may still be entitled to benefits. You also should submit any documents that back up your claim.

The unemployment office will determine whether you are legallyentitled to benefits, based on the information in your claim and your company's response. It's not uncommon, however, for an employer to twist or stretch the truth to avoid a charge to its unemployment insurance account. You are entitled to see what your employer says and to give a response.

There are two main reasons that unemployment claims are denied:

(1) Violating an employer rule or engaging in some conduct that is contrary to what your employer can reasonably expect from you (willful misconduct).

(2) Quitting your job without a verygood reason for doing so (voluntary quit).

Is it better to quit or be fired?

Sometimes, when things aren't going well at work, an employer may give you a choice: "Quit or be fired." Which should you choose?

My advice to clients facing this situation is not to quit ─ unless the employer agrees to not oppose your unemployment claim. This can be part of a written agreement contained in a severance package.

Unlike with a firing, where the employer must prove you were at fault to successfully deny paying a claim, if you quit the burden is on you to prove you had what the law refers to as "necessitous and compelling" reasons.

As I said, however, regardless of the circumstances it always makes sense to file a claim for benefits. In some cases, employers don't even bother to respond to a notice of a claim, clearing the way for a former employee to receive compensation.

Investing in legal representation

Especially if your claim is denied, it's worth finding an attorney well-versed in unemployment compensation law who knows how to best present your case on appeal. If you think you may be in for a fight, it makes sense to immediately hire an attorney.

It is always worth testing the system. Denied claims initially go before a "referee.'' I've had cases in which the employer doesn't show up at the hearing. And in cases where an employer has the burden of proof, your chances of getting benefits are enhanced.

Reviewing the file to learn what your former employer is claiming and subpoenaing witnesses and documents as necessary are all part of pursing a successful appeal.

This level of preparation is why I've won more than 80 percent of the roughly 100 appeals I've handled. Should you find yourself unemployed, I'm confident that I can maximize your chances of successfully claiming unemployment benefits.

Losing a job ranks among the worst experiences of a person's life. Working together, we can protect your right to receive the unemployment compensation you deserve.

To learn more about how Scaringi Law can help you, call us toll-free at 877-LAW-2555 or email us at info@scaringilaw.com.