By:  Rachel Weinrib, Esq.
       Judge Ruth B. Kraft, Esq.

Employers often assume that a discharged worker will almost automatically be awarded unemployment benefits, regardless of the grounds for termination.  However, there are numerous techniques that you, as the employer, can utilize to reduce your exposure, protect your experience rating and be held responsible for only claims in which the worker has quit his or her job for good cause, which is narrowly defined in the law or been separated from employment under non-disqualifying circumstances.  These techniques include: (1) developing a firm understanding of the substance and procedure of unemployment appeals, (2) adhering to protocols throughout employment which are carefully and thoroughly documented, (3) responding to notices of claims filed only after consultation with legal counsel, and (4) appealing claims whenever there are legitimate grounds for doing so.

The first step in combating charges for unemployment insurance claims must be set in motion upon hire, not termination.  Each employee should have a written job description which details the requirements of the position as well as grounds for termination.  If an employee does not fulfill your requirements, the supervisor must reprimand the employee appropriately and in writing, to initiate a documentation trail.  All shortcomings and incidents should be recorded and maintained in the employee’s file.  If these violations are not corrected, a final warning must make it clear to the worker that the next step will unequivocably be separation.  If the termination results from a violation of a specific policy, then the policy, the worker’s awareness of the policy, and a warning that a final instance will be the causative factor in a discharge must be documented.  In this way, the record can be used to establish that the employer was terminated for cause and under disqualifying circumstances.

Regardless of the grounds for termination, countless discharged employees will inevitably file claims for unemployment benefits because there is no good reason not to do so.  A worker can file a claim, either by telephone or on-line, free of charge and it is then up to the employer to respond.  If an employer disregards the claim, the Department of Labor can determine, on its own, to deny benefits but may, instead, find the claimant eligible to receive benefits, resulting in a charge to the employer’s account.  In either instance, the employer will receive a written Notice of Determination explaining whether or not benefits were awarded and instructions on how the disagreeing party may request a hearing.  In either instance, the following process is followed:

  • An employee or employee who is affected by the determination may request a hearing.  However, in New York, a requesting employer must submit a written statement of the factual or specific events which it contends are the grounds for denying benefits to the employee.  A hearing request must be made within a prescribed statutory period so time is of the essence!
  • *At a hearing, both sides will have the opportunity to present their case to an Administrative Law Judge who will issue a written decision and order shortly  thereafter.
  • If the determination is unfavorable to the employer, it may file an appeal to the Appeal Board within 20 days of the Administrative Law Judge’s decision.  Appeals are submitted in written form. Thereafter, the employer will receive a notice of receipt of appeal with instructions about the appeal including how to submit a supporting statement and how to request a copy of the hearing transcript for use in preparing the statement.
  • Once the appeal is decided, the losing party can either apply to the Appeal Board for reconsideration within thirty days of the date of the decision or may appeal to the Appellate Division of the State Supreme Court, Third Department.

Some employers routinely contest any and all unemployment claims, pushing every claim to hearing. This is inadvisable as it will simply divert resources from what should be their key business purposes.  However, it is prudent to evaluate the facts of each individual claim to determine the likelihood of the success of a contest. Prior to contesting a claim, examine the underlying basis of the termination and consult with an experienced employment law attorney, who is in the best position to evaluate your position and make recommendations as to how to structure the appeal.



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