The following is a brief overview of the Colorado Employment Security Act.
Questions frequently arise concerning the procedure surrounding unemployment compensation laws when an employee is dismissed. It is important to understand in Colorado that employees that have not entered into a contract or contractual relationship with an employer are generally considered to be employees at will and may be terminated at anytime; however, depending upon the facts and circumstances surrounding the employee's termination, the employer's account in the unemployment compensation fund may or may not be charged. The principle behind unemployment insurance is that it is for the benefit of persons unemployed through no fault of their own, and that each eligible individual who is unemployed through no fault of his or her own shall be entitled to receive certain benefits. The following material is a brief overview of some of the laws set forth in the Colorado Employment Security Act.
The initial burden of proof is always on a claimant to establish a prima facia case of eligibility for unemployment compensation benefits. If the claimant presents a prima facia case for eligibility and the employer contests "an otherwise eligible claimant's right to benefits on the grounds that the claimant was discharged for misconduct," the employer then has the burden to make a prima facia showing to the contrary. If the employer meets this burden, the claimant is entitled to present evidence to justify the acts which led to the discharge. The employer, when contesting unemployment compensation benefits, needs to demonstrate that the ex-employee (claimant) should be disqualified from receiving funds from the employer's fund and that the employer should not be responsible for contributions to the fund due to the claimant's unemployment.
Some of the more common reasons for not paying benefits from the fund to a claimant include the following:1
There are various reasons an ex-employee may be given a full award of benefits, which may include:
The off the job use of not medically prescribed intoxicating beverages or controlled substances or the on the job use of not medically prescribed intoxicating beverages or controlled substances may be reason for a full award but only if:
Upon receipt of a claim, the Division of Labor notifies all interested parties of the claim. The interested parties are allowed twelve (12) days from the date of mailing the notice of the claim in which to present any additional information pertinent to the claim. The information must be post-marked or received by the Division of Labor within twelve (12) calendar days from the date of mailing. A deputy then issues an opinion and determines the validity of the claim. His decision sets forth findings of fact, conclusions of law, and an Order. The Division then promptly provides all interested parties with copies of the deputy's decision.15
Any interested party that is dissatisfied with the deputy's decision may appeal that decision and obtain a hearing covering any issue relevant to the disputed claim. The initial appeal is to a hearing officer designated by the director of the Division and must be post-marked or received by the Division generally within fifteen (15) calendar days from the date of notification of the decision of the deputy. The hearing officer has the power and authority to call, preside at, and conduct hearings. The hearing officer then makes decisions on each relevant issue raised, including findings of fact, conclusions of law, and an Order. The Division of Labor then provides all interested parties with copies of the hearing officer's decision.16
Any interested party who is dissatisfied by the hearing officer's decision may appeal that decision and obtain administrative review by the Industrial Claims Appeals Office. The appeal must be post-marked or received by the Division generally within fifteen (15) calendar days from the date of notification of the decision of the hearing officer. Upon petition to review by an interested party, the Industrial Claims Appeals Panel may affirm, modify, reserve or set aside any decision of the hearing officer on the basis of the evidence in the record previously submitted in the case. The Division then promptly provides all interested parties with copies of the Industrial Claim Appeals Panel's written decision and Order in each case.17
The deputy hearing officer or Industrial Claim Appeals Panel, may, on his or its own motion reconsider a decision within a twelve (12) month period subsequent to the date of decision when it appears that an apparent procedural or substantive error has occurred in connection with the claim. Any interested party who is dissatisfied by the decision that is issued as a result of reconsideration may appeal that decision.18
Evidence and requirements of proof conform, to the extent practical, with those in civil non-jury cases in district courts in the State of Colorado; however, when necessary to do so, in order to ascertain facts affecting the substantive rights of the parties to the proceeding, the person or persons conducting the hearing may receive and consider evidence not admissible under normal evidentiary rules, if such evidence possesses probative value, commonly accepted by reasonable or prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and should be noted in the record. The person or persons conducting a hearing must give effect to the rules of privilege recognized by law, and may exclude incompetent and unduly repetitious evidence. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available but upon request, the party requesting is given an opportunity to compare the copy with the original.19
A full and complete record is kept of all proceedings in connection with the disputed claim. All testimony at any hearing upon a disputed claim is recorded but may not be transcribed unless the disputed claim is presented for further review. If necessary, the Industrial Claims Appeals Panel may listen to the recorded testimony of a hearing on a disputed claim prior to rendering a decision. Remember, the Industrial Claims Appeals Panel may affirm, modify, reverse, or set aside any decision of a hearing officer on the basis of the evidence in the record previously submitted in the case. Consequently, the Industrial Claims Appeals Panel will base any decision they make upon the transcript that was made during testimony before the hearing officer and will generally not consider any additional evidence.
Actions, proceedings, or suits to set aside, vacate, or amend any final decision of the Industrial Claims Appeals Panel or to enjoin the enforcement of any action, proceeding, or suit to set aside, vacate, or amend may be commenced in the Court of Appeals of the State of Colorado by any interested party, including the Division. Any such action, proceedings, or suit, must be commenced by filing in the Court of Appeals, within 20 days, a Notice of Appeal, together with a Certificate of Service showing service of a copy of the Notice of Appeal on the Division and all other parties who appeared in the administrative proceedings. The Industrial Appeals Panel's decision may be set aside only upon the following grounds: (a) that the Industrial Claims Appeals Panel acted without or in excess of its powers; (b) that the decision was procured by fraud; (c) that the findings of fact do not support the decision; (d) that the decision is erroneous as a matter of law.20
The unemployment compensation laws of the State of Colorado are filled with exceptions, and the applicability of these exceptions may vary substantially as the facts vary from case to case. It is appropriate to contact an attorney to discuss the facts in unemployment cases that you are involved with. Very often, it will take a short period of time for an attorney to prepare an employer's case so that the employer's account will not be charged for benefits attributable to the claimant's employment.
1 C.R.S. 8-73-108(5)(e),
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