Unemployment Denial Appeal
When Your Employer Appeals Your Unemployment: What to Expect and How to Respond
Your employer can appeal if you win unemployment. Learn how employer unemployment appeals work, what they argue, and how to keep your benefits when they fight back.
Winning your initial unemployment hearing isn't always the end. Employers — particularly large ones — routinely appeal when claimants win, using professional services and attorneys to fight every claim on behalf of their unemployment tax rate management programs. Understanding how employer appeals work, what arguments they typically make, and how to defend your win is essential for protecting the benefits you've earned.
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Why Employers Fight Unemployment Claims
Employers pay unemployment insurance taxes based on their 'experience rating' — essentially, the more successful claims their former employees file, the higher their unemployment tax rate. For large employers with thousands of workers, even a modest reduction in successful claims translates into millions of dollars in lower taxes over time.
This economic incentive drives the unemployment management industry. Third-party 'unemployment cost control' companies — like Employers Edge, TALX (now Equifax Workforce Solutions), and others — are hired by employers specifically to contest unemployment claims on their behalf. They handle hundreds or thousands of claims at scale and have professional representatives who attend hearings regularly.
The practical effect: When you win an initial determination or hearing, your former employer's unemployment management company may automatically appeal — not because they believe they'll win, but because systematic appeals reduce the total number of claimants who ultimately collect. Your winning case is part of a statistical program, not an individual decision.
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How the Employer Appeal Process Works
When you win at the initial determination or hearing level, your employer typically has the same appeal window you do — usually 10–30 days from the decision. If they appeal:
- You receive notice that the employer has appealed
- The case is set for a higher-level hearing (Board of Review) or a new referee hearing
- You are the respondent; the employer is the appellant
- The employer presents arguments for why the determination should be reversed
- You defend the decision in your favor
During the employer's pending appeal:
- In many states, benefits continue to be paid while the employer's appeal is pending
- In some states, payment is held pending resolution
- You must continue certifying weekly regardless
Notification: You should receive written notice of the employer's appeal. The notice should include the reason for the employer's appeal and the hearing schedule.
Common Arguments Employers Make on Appeal
Employer representatives are experienced and use standard arguments:
'The referee applied the wrong legal standard': Arguing the referee's misconduct analysis was legally incorrect.
'The claimant's testimony was not credible': Attacking credibility — this is harder to argue on appeal since the referee who observed the witnesses is generally given deference.
'New evidence we didn't introduce at the hearing': If they failed to present key evidence at the initial hearing, they may try to introduce it now. Most appeals boards don't accept new evidence.
'The misconduct was willful as a matter of law': A legal argument that even taking all the facts as found, the conduct constitutes misconduct.
Your response: The findings of fact from the initial hearing are typically not re-litigated at the Board of Review. The Board reviews for legal error, not factual error. This generally favors the prevailing party from the initial hearing.
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Responding to an Employer's Appeal: What You Need to Do
Step 1 — File a response brief (if the Board allows it): Many state Board of Review procedures allow the non-appealing party to file a written response to the employer's appeal. File one. Respond specifically to each argument the employer makes.
Step 2 — Prepare for an additional hearing: Some appeals result in a new hearing, not just a paper review. Be ready to participate again.
Step 3 — Get the hearing transcript: The Board of Review reviews the transcript of the initial hearing. Request a copy so you can refer to it.
Step 4 — Address the employer's legal arguments: If the employer argues the referee misapplied the law, you need to show the legal standard was correctly applied. Reference the state statute and the referee's findings.
Step 5 — Emphasize the referee's credibility finding: If the referee found you more credible than the employer's witnesses, highlight this. Appellate bodies give deference to the fact-finder's credibility determinations.
Professional Unemployment Representatives: How to Handle Them
Third-party unemployment management companies have professional staff who attend hearings regularly. They're more experienced at hearings than most claimants. Tips for handling them:
Don't be intimidated: The fact that they're professional doesn't mean they're right. Referees are trained to ensure pro se claimants are given a fair chance.
Object when they mischaracterize facts: Politely but clearly: 'That's not what the record shows. The document shows [X].'
Request to see all evidence they reference: If they reference a document in the hearing, request it be formally introduced so you can review it.
Know they're playing a statistical game: They may not even be arguing your specific case is weak — they may be appealing as a matter of policy. Don't take it personally; treat it professionally.
Consider getting a representative yourself: If the employer brings a professional representative, you have the right to your own representative — an attorney, union rep, or legal aid organization. For significant benefit amounts, this may be worth pursuing.
Legal Aid Resources for Unemployment Appeals
If you're facing an employer appeal and can't afford an attorney, resources include:
Legal aid organizations: Many provide free representation for unemployed workers. Find them through:
- LawHelp.org (national directory by state)
- Your state bar association's lawyer referral service
- Your state's unemployment rights project (many states have these)
Law school clinics: Many law schools have employment law or workers' rights clinics that take unemployment cases at no charge.
Union representation: If you were a union member, your union may provide representation in unemployment proceedings as part of member services.
Workers' rights centers: Organizations like National Employment Law Project (NELP) can point you to state-specific resources.
Costs: Many employment attorneys will represent claimants in unemployment hearings on a contingency basis for significant amounts at stake. For smaller claims, legal aid and clinic resources are more appropriate.
Still have questions? Read the FAQs below — or let the AI handle it for you →
Frequently Asked Questions
Quick answers to the most common questions on this topic.
Do employers always appeal when claimants win?
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No, but large employers and those using unemployment cost management companies are more likely to appeal systematically. Small employers rarely appeal because the cost of the process outweighs the tax benefit. The larger your former employer, the more likely an appeal.
If I win at the initial hearing and the employer appeals, do I keep getting paid?
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In most states, yes — benefits continue during the employer's pending appeal. However, some states place benefits in 'suspense' pending resolution. Check your state's rules. Continue certifying weekly regardless, because if you win again, you'll receive any back-held weeks.
What happens to my benefits if the employer wins their appeal?
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Benefits stop, and in some states you may be required to repay benefits already paid to you during the appeal period. This depends on whether the state characterizes the overpayment as fraudulent (you don't repay) or non-fraudulent but incorrect (you may need to repay). Most states do not aggressively pursue repayment from claimants who received benefits in good faith.
The employer has an attorney. Should I get one too?
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It's a reasonable idea for significant benefit amounts. The employer's attorney can't make the law more favorable to the employer, but they can make procedural arguments and present evidence more effectively. An employment attorney who handles unemployment appeals can level the playing field. Legal aid is available if cost is a concern.
How long does an employer's appeal take to resolve?
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Board of Review proceedings typically take 6–16 weeks after the employer's appeal is filed. State courts take much longer — 6–18 months. Most employer appeals are resolved at the Board of Review level.