Make hearsay objections in unemployment hearings

Hearsay evidence is admissible in administrative hearings, and Administrative Law Judges are often unreceptive to hearsay objections in the course of a hearing on unemployment benefits. As a consequence, parties or their counsel may feel discouraged from making such objections. One take away from a recent decision of the Court of Appeals is: make the objections. In Jordan v. Employment Appeal Board (Case No. 13-1380, 10/29/2014), the Iowa Court of Appeals considered Stacy Jordan's appeal from the district court's judicial review decision, affirming the EAB's denial of unemployment benefits. Jordan had been terminated from her employment with Tenco Industries, Inc. The hearings before the ALJ included testimony from two witnesses for Tenco, and from Ms. Jordan. One of the Tenco witnesses testified that she had obtained a written statement from a worker training with Ms. Jordan on the night of the events giving rise to Ms. Jordan's termination. Although the written document was not admitted into evidence, the employer witness read the statement into the record. The rules of evidence governing hearsay are complex, including the definitions, and exceptions to the rule, but it is safe to say this this is a classic example of hearsay. The ALJ and then the EAB accepted as fact what the statement reported as having happened.

On appeal, Jordan challenged the reliance on the hearsay statement, which statement supported the finding of misconduct and denial of benefits. The Court of Appeals noted that ordinarily where the record is composed solely of hearsay evidence, a reviewing court will examine the evidence closely in light of the entire record to determine if it rises to the necessary levels of trustworthiness, credibility and accuracy. However, the Court concluded that where, as in this case, no objection to the hearsay evidence was made before the ALJ, the objection to the evidence was waived. While employers often elect to handle unemployment benefits hearings on their own, if the circumstances warrant, involving legal counsel can help ensure that proper objections are lodged and grounds for appeal are preserved. If additional claims by the former employee are anticipated, or you are aware that the former employee has retained counsel, you may want to discuss with your employment attorney whether legal representation in the administrative proceeding is advisable.

For any questions employment law please contact Joan Fletcher. 

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Joan Fletcher