How You Can Protest and Win Your Unemployment Determination in Michigan (UIA)
Ideally, you would never lose your job. But you did; and now you are at the Unemployment Insurance Agency (UIA) office, filling out forms so you can seek unemployment benefits. When you fill out these forms, there are some things you need to keep in mind to protect your rights.
They will ask you: How did you lose your job?
If you are seeking benefits:
- The best way to have lost your job is a layoff.
- Next best is to get fired, or to "quit in lieu of termination."
- The least beneficial for unemployment benefits is for you to quit.
Now in each of these situations, you can still get unemployment. But as you go down the list, it becomes harder.
Protect Your Rights
What words would you use to describe what happened to your job? The word that might come to mind when you write your resume isn't necessarily the best one to put on the unemployment forms. Here are some words you might use and how they might be interpreted.
• Laid off: This really only applies when the employer has run out of work for you to do.
• Discharge, termination, fired, “let go”: All these terms are usually interpreted to mean the same thing: the employer had work for you but he/she chose to end your job.
• Voluntary leaving, resignation, quit: These terms also usually describe one thing: you yourself chose to end your employment.
• Involuntary leaving: This term means you were forced to leave the job; it was outside of your control to stay or leave.
• Resignation in lieu of termination: This might sound like you quit your job, but in fact, it means the opposite. In this situation, you understand the employer is going to fire you, so instead of waiting for that to happen, you quit to avoid having the “fired” mark on your resume. For unemployment purposes, this is still a termination because the employer, not you, started the separation. This is a good thing.
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Filling Out Your Forms to Get Unemployment
Some things to keep in mind when you fill out your forms to get unemployment:
• Be as truthful as you can. If you fudge the facts, or worse, lie, it can come back to haunt you. Besides that, lying is just wrong. The last thing you want to do in a hearing is have to explain what looks like a lie on your forms. I have seen this happen too many times.
• When writing about a layoff, make sure you are using the word correctly. If the employer says, “I don’t have anything for you anymore,” he might be laying you off, or, in fact, he might be firing you. You have to know more before you call this a layoff. Do not say you were laid off when you know there was work for you. If the boss had work, but did not want YOU to do it, that is probably a firing, not a layoff.
• When writing about a firing, be truthful. Some people are afraid they will not get their benefits if they are fired. That is not necessarily true. Sometimes an unemployed worker does not want to say that he was fired, but if he was, he might as well say so. I have seen people who should have gotten their benefits lose them because it looked like they lied on their application. The judge is left to think, “If they lied on their application, maybe they are lying in the hearing.”
• When writing about quitting, you need to tell the agency what was wrong with your workplace. You know what considerations caused you to quit. In most cases, any considerations that came from your personal life at the time will probably not help you get benefits. You generally need to focus on what your managers, co-workers, or employer did to you that was wrong.
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Steps of Protest/Appeal
The Levels of Protest That Your Claim May Go Through
- You fill out your forms and file your claim, and the agency makes a decision.
- The UIA issues a Determination. This happens when one of the parties disagrees with the agency's decision on someone’s benefits. This Determination can be for the Employer or the Claimant.
- If one of the parties (employer or claimant) disagrees with the agency's decision on someone’s benefits, whoever loses may send a written protest to the UIA within 30 days.
- The UIA issues a Re-Determination based on the facts received in the protest. Sometimes the UIA reverses the decision in the Determination, but in my experience they usually affirm the Determination.
- Either the employer or the claimant may protest that Re-Determination within 30 days.
- The UIA forwards the case over to the Office of Appeals. You get a chance to have a hearing, talk to a human, and tell your side of the story.
- Whoever loses in the hearing has the automatic right to appeal (again within 30 days) to the MESC Board of Review. This is the last step in the Unemployment system.
- Whoever loses before the Board of Review can take it to Circuit Court. But at that point, it is no longer in the unemployment system; it is now in the Judicial Court system.
- You can take an appeal beyond Circuit Court. Some Michigan unemployment claims have gone all the way to the U.S. Supreme Court.
How to Protest the Determination
After you file your application you will get a Determination. The Determination will be for your or for the employer. Either you or the employer can protest.
It can happen that the unemployment agency decides you do not deserve benefits, even if the employer has not protested you getting them.
So how do you protest a determination against you?
1. Make sure you get your protest in on time. You have to get your protest to them within 30 days of when they sent the determination to you, not of when you received it. The protest also must actually get to them before the deadline; being postmarked on time is not good enough. You may want to fax and mail it both.
2. Make sure you include the following information.
- Social Security Number
- Identify the issues you are protesting. If possible, include all the issues involved by number (29(1)(a) or 29(5), etc.).
- Clearly say: “I want to protest the Determination dated . . .”
- You may want to add all kinds of other information, but you do not have to include anything else to protest.
3. Sometimes people are dealing with several issues at once without realizing it. They may think all the notices they receive are the same or duplicate copies of the same determination. Sometimes, you will receive two determinations that look the same on the same day. You need to make sure that you protest all the determinations that you disagree with.
4. You do not have to write your life story in protest. Keep it short and to the point. Telling them how good an employee you were in things unrelated to your firing will not help you. For example, if you were fired for stealing or threatening somebody, it does not matter much that you were on time to work every day for twenty years. If you were fired, it usually does not matter that they mistreated you in other ways as well. Also, unless you are asking for a Waiver of Restitution, your financial hardships do not make a difference. Keep it concise. I have seen people protest the determination in such a complicated way that the examiner did not know it was a protest. Keep it short and direct, and avoid too many details.
5. If you want to convince the Unemployment Examiner to reverse their determination, chances are that you will need to send some kind of paper evidence that proves your point. Just telling your story is not enough. Include pictures, emails, documents from the employer, doctor's notes. If you do not have any of these, just protest, so you can tell your story to the Administrative Law Judge (ALJ).
As a rule, when you are employed and you speak to anyone about your job, you should make a record for yourself of who you spoke to and what was said and when. The same is true when you file for unemployment; you really should make a record on a calendar, planner or notebook whenever you speak to someone about your unemployment. Note who you spoke to, when, what was said, and what your reaction was. You never know when such a note could mean the difference between getting and not getting your benefits.
When you protest your determination, keep a copy of your protest, noting the date and the method of communication: fax, mail, online, or in person.
Many people lose because they do not keep a careful personal record. Use a calendar or notebook. You never know when the question of winning will come down to a simple detail, like who you spoke to at the UIA or when. It takes a lot of work to document such things, but it is your life, after all. It's true you may never need this record, but I have seen too many people who have lost what they were legally entitled to because they did not jot down a simple note.
Finally, you can hurt yourself if you give too much information in your protest. Too much information becomes confusing. It can give the other side ammunition to twist around your words and mix you up.
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How to Protest the Redetermination
You can protest a Redetermination, just as you can a Determination. Refer to the information above and below.
Often the examiners simply reaffirm the Determination unless some kind of documents are submitted. If you do submit documents, these need to be something other than just your story. People pour their soul into telling the same story over and over when when they really don't need to. I have seen the UIA reverse Determinations and Redeterminations, and most of the time, it was because some documents were sent in, in addition to just the story. These documents could be pictures, business records, or emails, for example.
If you do not have anything except your story, you might consider saving yourself some hassle. What I mean is: do not torture yourself trying to dredge out every conceivable fact or nuance of the situation. Consider just writing a protest letter that says, “I disagree with the Determination that said I was disqualified for . . . I want to protest.” Short, sweet, and simple.
In my experience, unless you submit documents like those mentioned above, the UIA is not going to reverse the decision in your favor anyway. Save yourself the hassle. When you get to the hearing, that is when you get to lay out your story for a real person.
Once you have a Determination and then the Redetermination, if either side protests, you are going to a hearing. This is what you have been waiting, longing, yearning for. It is the chance to tell your story face to face with a real person, not just an agency. Just remember, you do not have to write your autobiography to get here. Just protest the Determination and the Redetermination. Then, you get your hearing.
To prepare for your hearing go to my article Advice for Unemployment Hearings in Michigan.
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A Question of Honesty
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Burden of Proof
If you were fired, you do not have to prove anything. The employer has the burden to prove to the Unemployment Agency that you did something wrong for you to be denied your benefits. So, when you are filling out your applications and protest, reiterate that the termination was the employer’s choice. It was unfair to you. You should not have been fired for this event because. . .
Now if you resigned, it's you that has to prove something: you have to prove that either you quit because the employer did something that would force a reasonable person to quit, or you did not have a choice.
So, do not tell the UIA about your problems that you were facing at home and in your family. Instead, you need to show:
- The employer did something wrong: something wrong was happening that was under the employer’s control. This needs to be something that would cause a reasonable person to quit.
- You complained to a supervisor (preferably more than once) about the problem.
- You gave them a chance to fix it.
- It was still not fixed.
So, if you resigned, the above is what you want to try to prove as you are filling out your applications and your protest, or even if you are going to the hearing.
One More Word on the Burden of Proof
This is not a criminal trial. The level of proof needed to carry the burden is not “beyond a reasonable doubt.” The level is by the “preponderance of evidence.” If we could put this in math terms, somebody has to convince the ALJ by 51% of the proof. If the judge looks at the evidence for both sides and equally believes both sides, then the burden of proof has not been carried.
Let me put this in practical terms.
- If you were fired, the employer has the burden of proof. If at the end of the hearing, the judge finds both sides equal in their evidence. You should win because the employer did not carry their burden to prove you did something wrong. They need to tip the scale to their side to win.
- If you quit, and at the end of the hearing, the ALJ finds the evidence equal between both sides, you will lose. This is because you have not tipped the scales to make the judge believe you. You have not carried your burden of proof.
You can tip the burden of proof in your favor by having another witness to the event, or by documents that agree with your side of the story, for example, pictures or emails.
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About the Author
Andrew Grosjean is an attorney at law (licensed in CA). He lives in Michigan and has worked extensively with Michigan Unemployment Hearings since 2001. His wife, Glenda Grosjean, is also an Advocate for Unemployment (since 2004) and for Disability.
If you need help with an Unemployment Hearing, in person or by telephone conference, the Advocacy Program may pay for consultation and representation at the hearing level. This service is provided at no charge to the Claimant.
This article is intended to provide helpful tips for those that are facing an unemployment hearing in the state of Michigan. It is simply my personal opinion and should not be construed as specific legal advice. If you are facing a hearing of this type, you should confer with a specialist in this area to analyze your specific situation and give you a proper opinion on how you should pursue your case. While the author has been authorized to represent Claimants through the Advocacy Program, and is a California attorney, Andrew Grosjean is not licensed to practice law in Michigan.
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