Can I use the decision in my unemployment appeal in my wrongful termination case?
Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.
In Nevada, the answer is a firm no by statute. Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.
I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.
Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.
Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.
But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.
Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.
The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.
To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..
Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.
This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.
I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.