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OK to forgo lawyer in most unemployment cases

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Thanks to a recent appeals court decision, employers no longer have to hire attorneys to fight unemployment compensation cases. Employers can represent themselves or use the assistance of representatives who aren’t lawyers.

Recent case: Ellen Grafner worked for a few months as a church musician. When she wasn’t hired full time and wasn’t asked to return part time after the holiday season, she filed for unemployment compensation. Her attorney argued that she had been discharged and was entitled to benefits.

The church was represented by the parish priest and an employee of a company hired to help with unemployment compensation cases. That representative was not an attorney.

Grafner argued that the company employee could not appear because that amounted to practicing law without a license. The case went up on appeal, and many employer representatives, including the Society for Human Resource Management, the Federation of Independent Business and the Illinois Manufacturers’ Association, filed arguments with the court supporting the employer.

The court said unemployment compensation hearings are informal and not particularly complex procedures that don’t require an attorney. Representing one’s company or using an employer representative in such hearings is not the unauthorized practice of law. (Grafner v. Department of Employment Security, No. 1:08-1858, Illinois Court of Appeals, 2009)

Final note: While you may not need an attorney for most unemployment comp cases, consider discussing each one with your attorney first. That’s especially true if you believe that the employee may be thinking about another lawsuit. The employee’s attorney may use the unemployment hearing to fish for more information. You want to make sure you don’t divulge anything you shouldn’t that could hurt your defense of a later discrimination case.

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