How Jackson v. NC Department of Commerce Redefined Advocacy in North Carolina Unemployment Hearings

February 25, 2016   |   Chris Wilms

When a person loses his or her job, that person may or may not qualify for unemployment insurance benefits under North Carolina law.  One of the primary issues looked at by the Division of Employment Security is whether the person losing their job either quit without good cause attributable to the employer or was discharged due to misconduct connected with the work.  If someone quits a job, that person is presumed to not be qualified for benefits unless he or she can meet his or her burden of showing that it was a good enough reason under the law to quit and it was a reason that is attributable to the employer.  When a claimant is terminated from his or her job, the presumption is that he or she is qualified for benefits unless the employer can show that the claimant was terminated for what amounts to misconduct connected with the work.

When this is seen as an issue by the DES, the person making that determination is called an Adjudicator.  When a determination is issued, the employer or the employee can appeal the determination, and a hearing is scheduled before an Appeals Referee for a de novo review of the facts leading up to the separation to determine this issue.  The parties present evidence in the form of sworn testimony of witnesses, documents, etc., that are considered by the referee in making a decision.

Parties to an Appeals Hearing are allowed counsel, and the attorney would be responsible for the presentation of evidence.  In general though, this is meant to be a relatively informal setting, where claimants and employers can make appearances without counsel and still have a fair consideration of the issues presented, and the appeals referee is responsible for developing the record.  Objections, in the past, were not made necessarily to preserve the record, but merely to call attention to the lack of weight a particular piece of evidence ought to be given, with, of course, some exceptions.  Other states tend to adopt this level of informality in varying degrees.  For example, in Texas, the Appeal Hearing Officer Handbook states:

When attorneys are appearing before the Hearing Officer they may wish to offer objection to testimony. At that time the Hearing Officer should explain the end result of the hearing is to obtain facts. The attorney should also be assured that the decision of the Appeal Tribunal must be supported by admissible, valid, and legal evidence and that for this reason we rarely exclude from the hearing of the Hearing Officer any evidence which is offered. In the event they insist on making the objection, the attorneys will usually be satisfied through the use of a phrase such as, “Objection is overruled and you may have your exception noted in the record.”

However, Jackson v. N.C. DOC, 775 S.E.2d 687 (N.C. Ct. App. 2015) seems to have made a radical departure from the informal nature of these proceedings.  In that case, Employer offered a written statement of a nurse not present at the hearing into evidence and Claimant failed to object to the entry of that document.  While the statement contained in the document was likely hearsay, the NC Court of Appeals held that Claimant waived her objection to the use of that document to make findings of fact because Claimant did not object at the appeals hearing.

This case has set a precedent of causing the Claimant and Employer to need to be constantly vigilant about protecting the appeals hearing record by making objections.  The impact of this could involve lengthier hearings, which are scheduled for one hour by default.  Hearings that go over the scheduled length of time are sometimes adjourned for a new date some weeks later.  The hearings themselves will likely have a higher level of formality, insofar as the hearings will likely contain more objections designed to preserve the record and argument in support and against such objections.  Authentication of documents, additional corroborating witnesses, and establishing foundation could all be necessary additions to the presentation of a case whereas before such formalities were not usually necessary.


Chris Wilms practices with Hopler & Wilms, LLP in Durham, NC and is a member of NCAJ’s Employment Law Section.  Mr. Wilms represents Employers and Claimants in all stages of the Unemployment Claims and Appeals process in North Carolina.