Kerry O’Brien teaches lawyers how to win unemployment appeals

On April 27, 2016, Kerry O’Brien spoke to lawyers from around the state at the Texas Poverty Law conference in Austin, on how to win Texas unemployment appeals. Kerry is a former Texas Workforce Commission unemployment hearing officer, and in private practice since 2008 has helped hundreds of unemployment claimants with their appeals. Kerry provided winning tips and strategies to lawyers who serve low-income Texans, through Texas Rural Legal Aid, the Equal Justice Center and other organizations.

Here’s a copy of Kerry’s Texas unemployment appeals paper, that you can have.

In the talk, Kerry provided strategies and answered some common questions that lawyers (and unrepresented claimants) have when TWC unemployment appeal hearings. For instance:

1) Since the hearing officer uses precedent cases from the TWC Appeals Policy & Precedent Manual to help his or her decision, should I suggest one to the hearing officer for my case?

Answer: Personally, I don’t, and that’s my perspective as a former TWC hearing officer. Why? Because they are familiar with all the precedents. And by suggesting a certain precedent, not only do you create the impression that you might be gaming your side’s testimony for that specific precedent (and therefore lose credibility), but a proud hearing officer may be motivated to avoid the precedent you suggested. In addition, hearing officers don’t have a lot of time, and most will not allow time for arguing your case at the end of the hearing. The best thing to do is to prepare for your side’s testimony and evidence (while always giving truthful testimony, of course) with certain precedents in mind, so that the testimony fits with the precedent as much as possible and makes it easy for the hearing officer to write a decision in your side’s favor.

2) What if the employer has documents that I think would be helpful for me? How can I get those?

Answer: There is a subpoena process with the TWC, where you can request that the hearing officer issue a subpoena for certain documents or for a certain witness. However, you have to do that well in advance of the hearing, and the hearing officer can deny the request if you haven’t convinced him or her of the relevance of the documents. And some hearing officers simply won’t take any action on a subpoena request.

There is another way, perhaps a better way. Fax a letter to the employer’s representative, demanding that they provide both you and the hearing officer with a copy of certain documents. CC the hearing officer by fax. Make your request as specific as possible, but also as narrow as you can without missing important documents. For instance, don’t request “All emails between my supervisor and me from the last 3 months of my employment.” Yes it would be nice to be able to rummage through those, but you’re making it highly likely that the employer won’t do anything. Instead, it’s better if you can request something like: “All emails between me and my supervisor from September 1, 2016-September 3, 2016.” It’s more likely that the employer will respond and it’s more likely that the hearing officer will support the request. Here’s an example of a good way to phrase the letter:

“I am requesting that the employer provide the TWC hearing officer and me with a copy of all emails between me and my supervisor, Joanna Smith, from September 1-SEptember 3, 2016. Within these emails I believe we will see a discussion between me and Joanna regarding my upcoming need to take leave for my family matter, and her approving that leave. This will be directly relevant to the reason that the employer is claiming I was fired – absence without notice. Therefore, the TWC hearing officer will need to see these emails in order to make a proper decision in the case. If you don’t provide these emails for the hearing, it may only delay finishing the hearing when the hearing officer resets the hearing for another date and time while the employer locates and submits those emails. You can email them to me at ____@________.”

Again – that’s just an example that might work for that particular situation. Your situation will be different, and there are no guarantees. However, I have found this approach the most effective.

3) What do I call the hearing officer? 

Answer: It’s not critical. I always call the hearing officer “Mr.” and “Ms.,” as in Mr. Kilian, or Ms. Van Dyne, and will use “sir” or “ma’am” as well to be the respectful Texan that I am. You can call them “Hearing Officer Resteiner,” or simply “Hearing Officer.” However, whatever you do, don’t get casual and call them by their first name. That’s the one inappropriate way to address a hearing officer. There are around 120 hearing officers who handle TWC appeal hearings from various parts of the state.




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