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By September 11, 2019October 16th, 2019Blog,

Members of 501(c) Agencies Trust are constantly reminded to understand the importance of documenting employee separations. Many members have utilized our guideline on types of documentation to collect after a separation. Others have contacted HR Services – available to all 501(c) Agencies Trust members – and/or attended our “Documenting Employment Events” webinar. (If you are not up-to-speed on best practices surrounding documentation, we highly recommend that you take time to do so.) Utilizing best practices, in this article we are going to review an actual hearing in which the decision turned on the documentation provided. We’ll conclude with two main “Takeaways” at the bottom of this page.


The claimant was discharged for theft. She was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge.

At the Hearing

The Employer’s Evidence: The claimant was employed as a retail set-up worker, charged with setting up displays in stores. An employee of a store at which the claimant had been working reported to her employer that someone had stolen $40 out of her purse. The HR Manager, who appeared at the hearing, testified that she and the manager of the store where the claimant had been working viewed video which showed the claimant going behind the counter where the purse had been stored, and handling the purse. The HR Manager testified that due to that incident, the claimant was discharged for the theft. The HR Manager also testified that the claimant was aware of the employer’s policy which provided that theft was grounds for immediate termination. The employer did not provide the video as evidence.

The Claimant’s Evidence: The claimant denied that she stole the money from the employee’s purse. She testified that she never went behind the counter where the employee’s bag was stored and did not take the money. The claimant presented a witness at the hearing, a coworker who was present on the night the money was taken, who testified that the claimant did not go behind the counter where the purse was stored.

The Hearing Decision

The administrative law judge (ALJ) found that claimant was discharged for misconduct connected with the work and she was disqualified from benefits. The ALJ found that the claimant had taken the money from the purse and found that the theft from her employer was sufficient for a finding of misconduct. The claimant appealed, arguing that the employer could not carry its burden of proving misconduct because the employer did not provide the video as evidence at the hearing.

The Board of Review Decision

The Board of Review (Board) disagreed with the ALJ’s Decision and reversed the decision. The Board found that the employer failed to prove that the claimant stole the money because the employer failed to provide the videotape as evidence at the hearing. The employer’s witness testified only to what she saw on the video. The claimant’s denial was sufficient to overcome the employer’s testimony about the theft. Since the employer was unable to prove that the claimant stole the money, the employer was unable to prove that the claimant was discharged for misconduct, and the claimant was allowed benefits.


  1. In a discharge case, it is the employer’s burden to prove that the claimant was discharged for a reason which should disqualify that person from benefits under state law. In an unemployment hearing, the hearing officer is charged with listening to the testimony and examining the evidence presented by both sides. The hearing officer makes findings of fact based on that evidence. If the parties disagree on any facts, the hearing officer must determine which party is more credible and make findings of fact based on the more credible evidence. In this case, the employer had the burden to prove that the claimant did something which should disqualify them from benefits, meaning it was the employer’s burden to prove the fact that that the claimant stole the money.
  2. If a videotape of an incident exists, it is the best evidence to prove that the incident occurred. A witness who testifies to what they saw on a video is not presenting the best evidence because the hearing officer is not able to watch the video. A claimant who appears at the hearing and denies the event under oath stands a good chance of winning their case. In this case, if the employer had presented the video as evidence for the hearing, by presenting an easily-viewed copy to all parties prior to the hearing, the employer could have proved that the claimant did, in fact, steal the money from the employee. If the employer had been able to do so, the employer would probably have carried its burden to prove that the claimant was discharged for disqualifying misconduct.

In this case, submitting video footage would have made a major difference in the Board of Review’s decision. This example demonstrates that firsthand direct information is always the best to support you case. For questions about documentation, or about your Trust membership and services, contact us.

Case information was provided by our friends at EWS. It is intended as general guidance and is not intended to convey specific tax or legal advice. For a legal opinion, please consult your lawyer.

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