Former employees who file for benefits with the North Carolina Division of Employment Security (“D.E.S.”) may be found qualified or disqualified by an adjudicator during an initial filing process. The Employer or former employee has the right to file an appeal and request an appeals hearing based on the adjudicator’s determination.
An appeals hearing is a quasi-judicial proceeding that can be scheduled in-person at a local office of the D.E.S or via telephone. The hearing is presided over by an Appeals Referee or Hearing Officer, who, more likely than not, is a barred attorney. The D.E.S. Official presides over the hearing as an Administrative Law Judge and will ask stringent questions with regard to the events surrounding the former employee’s separation from employment. The former employee will also be given the opportunity to ask questions of the Employer’s witnesses and present evidence against the Employer during the hearing.
The Hearing Official will base his or her decision on who has the burden of proof. Under the D.E.S. regulations, the State of North Carolina holds that the burden of proof falls with the employer to show that the reason for the employee’s discharge was due to substantial fault or misconduct. The burden shifts to the employee when he or she has been deemed to have resigned from employment. It should be noted that a forced resignation, where the employee would have been discharged if not for the resignation, is tantamount to a discharge and the burden of proof lies with the employer.
The Employer has the right to legal counsel in an appeals hearing to protect its rights. It is imperative that the Employer provide clear and succinct information during these hearings. The Employer has the burden of proving its case in these hearing seventy percent of the time. Failure to participate and/or be successful in these hearings can lead to higher unemployment benefit taxes or benefit charges to your account. Further, if the Employer loses its hearing, it will be extremely difficult to be granted an additional hearing.