Four myths of the N.H. unemployment system

It is not surprising that, in light of the Great Recession and its aftermath, unemployment claims have risen precipitously in the past few years. Employers faced with this rise in claims may be confused about their rights in the unemployment process, and if and when they should contest a former employee’s claim for benefits. To help alleviate this confusion, let’s debunk four common myths about New Hampshire’s unemployment compensation system:
• Myth No. 1: Terminating employees for performance reasons automatically makes them ineligible for benefits: The unemployment compensation system is predicated on providing benefits to persons who become unemployed due to no fault of their own. Because determining poor performance is a judgment call on which reasonable people may disagree, an otherwise eligible employee may still receive benefits depending upon all facts and circumstances.
To be eligible for unemployment benefits in New Hampshire, an unemployed person must meet both monetary and non-monetary eligibility criteria. These criteria include being totally or partially unemployed, physically and mentally able to work, available for work, and actively looking for work and reaching certain earnings guidelines.

An employee may still be disqualified from receiving benefits, if he or she was separated from employment for one or more of the following reasons:• Quitting voluntarily without good cause. This may include a no call/no show when the employee was expected to work.• Engaging in misconduct connected with work, which may consist of recurring careless or negligent acts or a single instance of deliberately breaking a company rule• Engaging in substance abuse on the job, where the substance abuse interferes with the person’s safety or the safety of others.As these requirements demonstrate, run-of-the-mill poor performance (e.g., poor workmanship, tardiness) or unprofessional conduct is not necessarily a basis for denying unemployment benefits. Thus, in deciding whether to challenge an employee’s request for benefits, the employer should consider whether the performance issues that prompted the separation are serious enough to meet the standard for denying unemployment benefits.• Myth No. 2: Employers always must attend an appeal hearing: If a claimant is denied benefits, the claimant may choose to appeal the decision. The employer, however, is not required to attend the hearing if the issue on appeal is something other than the reason for the claimant’s separation. For example, the employer does not need to attend if the issue on appeal relates to the claimant’s monetary eligibility. On the other hand, if the issue relates to the reasons for the claimant’s separation, and the employer objects to the person’s benefits eligibility, the employer typically will want to attend to present evidence about the separation and question the claimant.• Myth No. 3: Everything in an appeal hearing is confidential: Under New Hampshire law, Department of Employment Security appeal hearings are confidential, and an agency decision is not admissible in a non-agency court or administrative proceeding. However, any testimony or records used in resolving an unemployment compensation claim may be used in any employer-employee related dispute, provided the party seeking to use the records obtains judicial approval to do so. This means that employers should consider carefully the type of evidence that may be generated during an unemployment compensation appeal hearing before proceeding.

• Myth No. 4: Employers never need counsel at an appeal hearing: When an employer decides to participate in an Employment Security hearing, retaining counsel to prepare and/or represent it at the hearing should be considered for at least two reasons.
First, having such an advocate can improve the presentation of the case by preparing the employer for examination at the hearing and cross-examination by the claimant or his or her representative. Counsel also can strengthen the case by effectively cross-examining the claimant and his or her witnesses.

Second, since information that may be discovered at an unemployment hearing may be used in a subsequent proceeding, a clever claimant may try to use the hearing as an opportunity to explore the likelihood of bringing a successful cause of action against the employer under another theory of liability such as “wrongful termination.”

Karen S. Aframe, a member of Bernstein Shur’s Labor and Employment Practice Group, can be reached at 603-623-8700 or