Burden of Proof: What does it look like?

by Heather

(California)

I recently had my appeal hearing for Unemployment. I attempted to subpoena some documents but was denied my subpoena and the Judge stated his reason was because I did not need the documents. He stated that my previous employer had the burden to prove I was terminated for misconduct. I do not believe that my employer proved anything. They told the Judge what other people said. They did not have written statements from these “witnesses” or any other physical documentation of the allegations made against me. I have been trying to research here in California, what exactly my former employer would have had to enter into evidence to meet this burden of proof. So far they have hear say. Just in case I do not win the hearing, though, I want to be prepared to appeal that decision and have information to support my claim that my employer did not meet the burden of proof. Hope this makes sense. Thanks for any assistance or information you can provide.

Hi Heather,

That is the ALJ’s decision.

I know what I always liked .. direct testimony to events and the documents.

Most people who try to keep their butt out of legal “hearings” will not be ready for the legalities of even an unemployment hearing .. therefore, rendering the record void of things to raise on appeal because they sat there and didn’t put things on the record .. such as requesting a continuance if you really needed that document subpoenaed. Objecting to employer testimony on the basis of “hearsay” etc.

What I have know “direct testimony” trumps hearsay If someone says .. I was told .. object it’s hearsay.

But I also know that hearing officers are given wide discretion in judging credibility. So, I say, make sure you get whatever you need into the record. He/she might not of thought you needed the documents, but what would you have done if the employer showed up with a a load of new ones that weren’t in the state file. Object .. request a continuance and another subpoena .. on the record.

Evidence is weighted and direct testimony is supposed to be weighted more than hearsay or statements which lack direct testimony.

The example I used when trying to persuade a manager that was needed, into attending a hearing, was the need for a first hand witness was because a document can only lie flat. It cannot testify and it cannot be cross examined, but when the content of the document is testified to with direct knowledge .. It comes alive and the combination is powerfully, persuasive.

Did you research for the rules of procedure for unemployment hearings in CA? .. Maybe you can find them at the CUIAB.