Unemployment Claims and the OESC

While unemployment rates are decreasing, Oklahoma employers continue to face significant unemployment claims in the post-COVID era. In Oklahoma, an individual is eligible for unemployment benefits only when the employee is unemployed due to no fault of their own; available/able to accept and seek work; and has earned a minimum of $1500 from a covered employer during the base period.

While unemployment eligibility is a straightforward concept, in practice it is nuanced – with shifting burdens depending upon the reason the employment ended. One of the most common reasons a claimant is disqualified from receiving benefits is a termination for misconduct. For purposes of unemployment benefits, “misconduct” is strictly defined by Oklahoma statutes. It includes an intentional, material or substantial breach of the employee’s job; unapproved or excessive absenteeism/tardiness; neglect of job duties; actions that place in jeopardy the health, life or property of self or others; dishonesty; wrongdoing; violation of law; and violation of employer policies. This specific, statutory definition is an aid to employers. By specifically tying an employee’s poor performance or behavior to one or more of these eight categories of misconduct in termination policies and corrective action forms, an employer can improve its arguments before the Oklahoma Employment Security Commission (OESC).

Success in proving misconduct at the OESC requires more than the identification of misconduct, though. Bearing the burden of proof, the employer should also show through documentary evidence that the employee was aware of the employer’s expectations and how the employee failed to live up to them. As a result, it is important to produce all pertinent documents in an objection, including write-ups, attendance records, the personnel file and corresponding policies.

With unemployment claims, timing is everything. Once the OESC provides notice of a new unemployment claim, the employer must submit its objection within 10 days after the date on the notice. The date of receipt is irrelevant. An exception exists only if an employer can show good cause, but the Commission rarely extends such leniency to employers. Thus employers should be prepared to act quickly in responding.

If the Commission decides against an employer’s objection, the employer has the right to appeal to the Appellate Tribunal where it will have the opportunity to participate in a hearing. To sufficiently prepare for the hearing, an employer should identify all key testifying witnesses and prepare them for the questions to be asked by both sides. All witness testimony should be consistent with the employer’s records, as inconsistent statements may be used as evidence of pretext in other settings.

While the unemployment process is geared toward providing unemployment benefits to individuals, employers have the opportunity to improve their chances of successful objections through effective policies, recordkeeping and hearing preparation.

This article first appeared in The Journal Record on April 29, 2022, and is reproduced with permission from the publisher.