VanAntwerp Attorneys, LLP
Phone: 606-618-0698

What you need for a successful unemployment insurance protest

Unnecessary unemployment insurance claims hurt your bottom line. If you believe one of your former workers should be disqualified from receiving UI benefits, you should file a protest with the Division of Unemployment Insurance. If you don't file a protest, your reserve account will be charged.

That said, you must include the right information in your protest or it will be denied. Plus, the information must be fully documented and backed up by specific, uniformly enforced policies.

Under Kentucky law, workers may be disqualified from receiving unemployment insurance benefits for several reasons:

  • Refusing to apply for or accept suitable work
  • Committing UI benefits fraud
  • Voluntarily quitting, except under specific circumstances
  • Failing a qualifying drug test
  • Specific types of workplace misconduct, such as falsifying an employment application; knowingly violating a reasonable, uniformly enforced rule of an employer; refusing to obey reasonable instructions; or reporting to work under the influence of alcohol or drugs

Employees are also ineligible for UI for the period of a strike.

Note: If an employee is fired merely for unsatisfactory performance, this may not be considered misconduct affecting UI benefits. Employers need to demonstrate that the worker had notice of specific expectations, failed to meet those expectations, and was warned appropriately before they were fired.

Employers have the burden of proof in a UI protest

The most common reason employers protest a worker's UI benefits is that the worker was fired for misconduct. In such cases, the burden of proof is on the employer to show that the employee was terminated in a fair process for violating a known, routinely enforced policy. You should document that:

1) The employee had notice of the policy, which identified specific prohibited conduct. For example, the policy was found in an employee handbook or job description.

2) There is a discipline policy which is routinely used. A progressive discipline policy may be your best option because it provides a series of documented events.

3) The employee had an opportunity to explain their actions.

Your ability to demonstrate these points in your protest will depend in part on whether you in fact have specific, written policies that you enforce fairly and routinely.

Assuming that you do, you will need to document the events accurately. Your documentation amounts to all of the evidence for your side of the case. No documentation means no evidence.

When a hearing is scheduled, it's best to have an HR professional present your side of the story and also to have a witness who can verify first-hand what happened. This is typically the supervisor involved in the discipline. If the witness absolutely cannot attend, a signed and sworn statement may be enough.

Keeping this information in mind may help you win your unemployment claims battle.

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