File Or Fight An Unemployment Appeal In Colorado
Understanding the Concept of Fault in Unemployment Appeals
In order to qualify for benefits, you must have lost your job through no fault of your own. An award of unemployment is warranted when the claimant is not at fault. City and County of Denver v. Industrial Commission, 756 P.2d 373 (Colo. 1988)
To be at fault for the separation, the claimant must have acted volitionally, or exercised control in the circumstances that led to the separation. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987).
The employer’s failure to follow its established disciplinary procedures prior to terminating a claimant is a factor to be considered, but is not dispositive of whether the claimant acted volitionally in the circumstances that caused the discharge. Pabst v. Industrial Claim Appeals Office, 833 P.2d 64 (Colo. App. 1992).
The concept of “fault” does not require culpability or an intentional act, but does requires volitional conduct on the part of the claimant. The claimant acts volitionally if he or she exercises some control or choice in the circumstances leading to the separation such that the claimant can be said to be responsible for the separation. Santa Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983).
Quitting your job is a “volitional act” which is presumably your fault. But there are several good cause reasons a person may quit a job, yet not be at fault. One example is quitting employment because of personal harassment by the employer not related to the performance of the job. Some situations can amount to good cause to quit, but the law requires the worker to first give the employer notice and/or an opportunity to fix the reasons for quitting. It is important for a worker considering quitting their job to investigate whether their own situation amounts to good cause for quitting.
Financial Benefits of Filing an Appeal
Unemployment benefits are approximately 55 percent of a person’s average weekly wage over a 12-month time period, looking back from the date the job ended. The maximum benefit amount available is $844 per week. Use the Unemployment Insurance Benefits Estimator tool to estimate your potential benefits.
If you file an unemployment claim without a lawyer, it costs nothing but your time. An experienced unemployment lawyer will increase the chances of getting paid. Consider how much that is worth. Good attorneys will give you an honest estimate or opinion how much help they can be, and what their help will cost.
The Employer: When a former employee successfully collects benefits, the payout is charged to the employer’s account. This changes the employer’s “experience rating,” which typically results in higher UI tax premiums for them in subsequent years. Unemployment is funded like other insurance. You pay a premium and the premium is affected by claims, but premiums do not rise by a dollar for every benefit dollar paid. Your rate is determined annually based on your premium history, the total balance of the state’s UI Trust Fund, and benefit payouts made to former employees. For exact employer tax schedules, surcharges, or to estimate payouts, go to: https://cdle.colorado.gov/employers/unemployment-insurance-premiums
Common Misconceptions About Unemployment Appeals
Parties will not lie. Unfortunately, witnesses do sometimes lie, even though they swear to tell the truth. At appeals hearings, effective cross-examination is crucial to expose lies or lack of candor.
Colorado law favors employers, or favors claimants. In our experience, the hearing officers who will take testimony and make a decision on an unemployment appeal try to be fair to each side. We have very seldom encountered hearing officers who have a clear bias.
What the other side says during the appeal gives me a right to sue for slander. Not so. Statements made in written submissions, fact-finding questionnaires, and hearings regarding unemployment are protected. The law encourages open communication so the CDLE can investigate claims, so an employer or claimant cannot be held civilly liable for defamation for these statements.
The appeal hearing record can damage my credit or be used later, in court. Information obtained by the State regarding your unemployment claim or appeal cannot be disclosed to the public, meaning third parties, the general public, and future employers cannot simply request your file. However, claimants and employers involved directly in the specific claim are allowed access to their own case files, evidence, hearing audio recordings, and related documents.