Who Has The Burden Of Proof?

The party with the burden of proof with respect to a particular issue usually testifies first, giving the other party the opportunity to respond to material that party presents.

For instance, in cases where the parties disagree with respect to the nature of the separation that occurred (whether a claimant quit his or her employment or was discharged), the employer bears the burden initially of establishing the nature of that separation.  In cases where an employee quits his or her employment, the employee has the burden of establishing that a statutory exception applies that entitles him or her to claim benefits.  If a discharge has taken place, the employer bears the burden of establishing that the discharge was for misconduct.

If the party with the burden of proof does not meet that burden, the opposing party prevails.  With respect to most issues in an unemployment insurance hearing, the burden to be met is "the preponderance of the evidence."  In the case of a charge of theft, however, proof of the allegation must be by "clear, convincing and satisfactory evidence."

Return to General Questions About a Hearing.

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