Denied Unemployment: Should You Talk to a Lawyer?
If you decide to challenge an unfair denial of unemployment benefits, your ex-employer will probably be represented by a lawyer throughout the process, and you should be too.
In order to appeal the denial of unemployment benefits, you must meet deadlines and other requirements, as well as file a written appeal presenting your supporting legal arguments. While you are not required to have a lawyer for this process, you may be at a disadvantage if you do not.
This article discusses whether you need a lawyer for appealing a denial of unemployment benefits. For information about applying for benefits, see “Do you need a lawyer to file for unemployment benefits?”
What a Lawyer Can Do to Help
Most states have set up unemployment agency websites that describe the process to follow in order to appeal a denial of unemployment benefits. But, an experienced employment lawyer will know his or her way around the laws and regulations that govern the appeal of a denial of unemployment benefits and can guide you through the complicated process.
Agency Denial of Benefits
After you lose a job, you may file an application for unemployment benefits with your state’s unemployment agency. A list of state unemployment agencies can be found on the CareerOneStop website. After this filing, your ex-employer may submit an objection with the agency, arguing that you are not entitled to unemployment benefits. The ex-employer must offer a reason supporting its claim that you are not entitled to benefits, such as that the employer fired you for misconduct. The agency will interview you, possibly hold an administrative hearing, and, ultimately, make a decision either approving or denying your application for benefits. If the agency denies your application, you can appeal that decision. Likewise, if the agency approves your application for benefits, the employer can appeal that decision.
In order to appeal an unemployment agency decision approving or denying unemployment benefits, the party who objects to the decision must file a written appeal to the appropriate unemployment appeals board for the state. This written appeal must be filed with the appeals board within the time period specified by the law, regulations, or rules of the appeals board. The time to file an appeal can be quite short (in California, for example, it is a mere 20 days after denial of an application for benefits). If you want to appeal a denial of benefits and fail to file the written appeal within the deadline, you may lose your right to challenge the denial. An experienced employment lawyer will make sure to file the appeal by the deadline.
After receiving the written appeal, the appeals board will review the relevant documents, including your application, your ex-employer’s objection, and the record of the administrative hearing. At this stage, you and your ex-employer have the opportunity to submit further written arguments to the appeals board. Your ex-employer's attorney will draft the argument, so your chances of winning the appeal are greatly enhanced if you have a lawyer draft your argument, too.
Appeals to the Court
After the unemployment appeals board rules on the appeal, the losing side may appeal that decision to a state trial court in some states. You definitely should have legal counsel to file an appeal in court, where a whole separate set of rules and laws govern the litigation. And, of course, your ex-employer will be lawyered up!
What Will It Cost to Hire a Lawyer?
Although a lawyer may charge an hourly fee for representing you in the appeal of the decision on your application for unemployment benefits, you may be able to contain these fees by limiting the scope of the lawyer’s duties. For example, you and the lawyer could agree that he or she would advise you through the appeal filing stage, and write the argument. You may revisit the fee agreement after the appeal board rules. At that point, if you have prevailed, you may not need the lawyer’s services any longer (unless you ex-employer appeals to the court). You can always ask if the lawyer will take the case on a contingent fee basis, meaning he or she would receive a percentage of any amounts you receive if you win the appeal but would take nothing if you lose. Of course, this arrangement means that you pay the lawyer a portion of the unemployment benefits you win.
There may be free legal clinics in your area that can give you some advice early in the appeals process, and may even provide low-cost legal representation. Check with public service organizations in your area for legal clinics or referrals they may offer.