INFORMATION ABOUT UI HEARINGS:
How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?
The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.
Who can ask for a hearing?
A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.
What does the hearing mean to me?
The hearing is an informal trial. The judge decides after the hearing to grant or deny unemployment benefits to a claimant. If the judge decides in the claimant’s favor, any benefits due will be paid. If an employer asked for the hearing and the decision goes against the claimant, the claimant’s benefits will be stopped and it is possible any benefits the claimant has already received may have to be repaid.
Can I ask for the hearing to be on a certain day or time?
When you ask for the hearing, explain if you cannot attend during certain hours or on certain days and the reason for that. We will try to satisfy your request.
Who is the judge?
The judge is employed by the Unemployment Insurance Appeal Board to decide if the determination made by the Department of Labor is correct or not. The judge is not connected to any side in the case. The judge is not connected to the Telephone Claim Center (TCC). The judge’s job is to make sure that everyone gets a fair chance to be heard. The judge knows the unemployment insurance law, evidence and procedure. The judge will review the evidence introduced at the hearing and will send you a written decision after the hearing.
Who can attend the hearing?
You and someone who can help you present your case can attend the hearing. This person can be a lawyer, an authorized agent, union reprsentative, or a friend. Your former employer or their representative(s), (who may be a lawyer) may attend. You and your former employer both have a right to bring witnesses. The DOL may send a representative to defend its decision.
What happens at the hearing?
The hearing is recorded. The judge will begin by identifying all the parties and the issues and will explain how the hearing will proceed. Testimony is taken under oath or affirmation. The judge will ask you and the other party questions. The judge may decide to consider new questions about your case not identified in the NOTICE OF DETERMINATION or your employer's objection. The judge must find good cause to consider new questions, must explain the good cause for you, and must offer you an adjournment (delay) if you are not prepared to discuss the new question. You will be allowed to ask questions of all other witnesses. The judge will assist you in asking questions of witnesses if you need help. A lawyer or representative for any party, would be allowed to ask questions. Any witnesses, documents or other evidence that supports your case should be brought to the hearing. If you need more time to get them, let the judge know this and explain why it is needed. If you cannot get the evidence you need, ask for a subpoena. The judge will rule on which documents or testimony may be admitted into evidence. He/She will also permit parties to use documents from the case file in persenting their case. The judge considers only the evidence at the hearing that is accepted into the record. You have the right to see and talk about any document before the judge accepts it for the record. At the end of the hearing all parties can give closing statements.
Where is the hearing?
The hearing will be scheduled at the office closest to the party who asked for the hearing. Read the Notice of Hearing to find out the location of the hearing. If a party is too far away to reasonably travel to the hearing site, that party may be allowed to participate by telephone but that request should be made before the hearing date.
When will the hearing take place?
In most cases, a hearing will be scheduled after the hearing office receives the request. You will be notified by mail of the exact date, time and location of the hearing before the day of the hearing.
Do I need an attorney?
No, but you have the right to be represented by an attorney or representative of your choice. An attorney or representative of a claimant cannot charge a fee unless the claimant is successful and the amount of the fee has been approved by the Appeal Board.
Do you provide or recommend an attorney?
No. You have to contact an attorney on your own but the Board keeps a list of attorneys and other persons or organizations that represent claimants. The attorneys and representatives on the list can charge you a fee in an amount approved by the Board only if you are successful in the hearing and any appeal. The list also includes organizations that provide legal services for free.
Will the other party (claimant or employer) have an attorney?
The other party might have an attorney. If it is known by the hearing office before the Notice of Hearing is mailed, the name and address of the attorney or representative would be listed on the Notice of Hearing.
Does a claimant have to pay an attorney or registered representative before a decision is made?
No. A claimant has to pay a fee to an attorney or registered representative only if the claimant is awarded benefits as a result of the hearing and any appeal and only after the amount of the fee is approved by the Appeal Board.
What if I get another determination for a different reason or period of time after I have asked for a hearing?
Ask for a hearing again on any determination that you disagree with. Look at the instructions on the notice of determination. You have to request a hearing within 30 days. You can ask that both or all issues be considered and decided at the same time. The hearing will determine if your request can be granted.
How will I know the date, time and place of the hearing?
A notice of the date, time and place of the hearing will be mailed to all involved parties and their representatives at least 5 days in advance of the scheduled hearing.
What else will the Notice of Hearing tell me?
The Notice of Hearing may also tell you what witnesses or documents you should bring to the hearing. You can also bring any witnesses or documents that you believe are important even if not stated on the Notice of Hearing.
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BEFORE THE HEARING:
How should I get ready for the hearing?
Get any papers that are connected to the issue in the case. Inform your witnesses of the date and time of the hearing. If you want to get a lawyer or representative, get one as soon as possible. Notify the hearing office of the name and address of your attorney or representative. If there is an important witness or important evidence that is not in your control, ask for a subpoena for that witness or evidence (see below).
Do I have to come to the hearing?
If you asked for the hearing but do not come, you will automatically lose unless the case is adjourned. If the other party asked for the hearing and you don’t come, what the other side says could be found to be true without you giving your side of the case. You can still apply to reopen the hearing but you will have to show good cause for not coming to the earlier hearing.
Who or what else should I bring to the hearing?
Bring any witnesses or documents that you think are important to your case and any witnesses or documents that the Notice of Hearing directs you to produce. You can bring an attorney or any other person to represent you. If you want to submit documents that you do not have in your possession or want a witness who is not willing to come voluntarily to the hearing, you can ask a judge to subpoena the document or the witness by calling and notifying the hearing office of your request. Please follow the procedure described below under "Subpoenas".
What if I have a speech, hearing or language problem?
Notify the hearing office and everything possible will be done to assist you. If you need an interpreter, one will be provided for you.
Can I appear by phone/cell phone? Can my witness appear by phone?
You may ask in advance to participate by telephone instead of in person. The request should be made by telephone or fax before the date of the hearing. The request will be granted only if you have a good reason for not attending in person. Cell phones are not as reliable as land lines and could interfere with the orderly conduct of a hearing and are, therefore, discouraged.
What if I move?
Notify the hearing office and the Telephone Claims Center immediately. If you move too far from the hearing site to travel there, you should ask for a telephone hearing.
Can I bring a child, friend or relative with me to the hearing?
Yes. A relative or friend can observe the hearing or act as your representative. Let the judge know if someone is there to act as your representative. Any child who comes with you will be expected to behave properly. If the child is not able to do so, then the child should not attend.
What if my employer tries to prevent me from filing or continuing with my claim or appeal?
No one has the right to interfere with your claim for benefits. Do not listen to anyone who tries to talk you out of filing a claim or appeal.
Can the hearing be adjourned (delayed)?
Yes, the hearing can be adjourned but only if the judge decides there is good reason under the law for it. Call, fax or mail your request for adjournment to the Administrative Law Judge Section as soon as you know you want it. Give the reason why you can’t come to the hearing. You should get an answer: yes or no. If you don’t get an answer, you should come to the hearing.
What is a subpoena? Can you issue a subpoena for me before the hearing?
A subpoena is a piece of paper ordering a witness to come to the hearing, or ordering documents to be brought to the hearing. If you have an attorney, the attorney issues the subpoena. If you have no attorney, notify the hearing office right away by fax or mail if you need a subpoena. Include your name and case number. State the person or document(s) that you want to have subpoenaed, why you can’t bring the witness or evidence on your own, and what you believe the witness or evidence would prove. You will be told if your request is granted or not.
May I send information to the judge before the hearing?
Yes. Be sure to include your name and case number and send it at least three days before the hearing.
Can I come before the day of the hearing to look at the file?
Yes. At any time after you receive the Notice of Hearing, you may come in to review your file. Call the ALJ Section telephone number on your Notice of Hearing to arrange this.
Can I see my file on the day of the hearing?
A party wishing to review the file on the date of the hearing should arrive 30 minutes early and tell the receptionist that you would like to review the file.
May I speak to the judge before the hearing?
No. Any questions about the date and time of the hearing and any requests for an adjournment or a subpoena should be made to the hearing office.
Can a request for a hearing be withdrawn?
Yes. A claimant or an employer who requested a hearing may withdraw the request in writing before the date of the hearing or in person at the time of the hearing.
What if I have a witness who can’t show up on the date of the hearing?
Go to the hearing and be prepared to present the rest of your evidence. Explain to the judge who the witness is, why the witness cannot be there and why the testimony is necessary. If the judge decides that the missing witness is necessary, the hearing can be adjourned and rescheduled to a later date.
Would a case be adjourned because the other side can’t show up?
A case may be adjourned because the judge decides that there is good cause under the law for it.
What should I do if I don’t get an answer to my request for adjournment?
Come to the hearing (or if you physically cannot come, then send someone in your place) and make your request in person.
Can you change the time of the hearing?
Other cases are also scheduled for the judge on the same day so it is possible that a time change cannot be made. If you find out after you are notified of the time of the hearing that you cannot be there at that time, ask for an adjournment.
Should a claimant continue to claim benefits by phone or internet?
Yes, continue to certify each week for benefits as long as you are unemployed and claiming benefits. This is true even if a hearing was requested or held, a decision was issued, or an appeal was made to the Appeal Board or court. Continue to follow all other instructions from the Unemployment Insurance office.
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AT THE HEARING:
What happens at the hearing?
The hearing is recorded on an audio cassette tape. The judge will begin by identifying all the parties and the issues and will explain how the hearing will proceed. Testimony is taken under oath or affirmation. The judge will ask you and the other party questions. You will be allowed to ask questions of all other witnesses. If there is a lawyer or representative for any party, that person would be allowed to ask questions. Any witnesses, documents or other evidence that supports your case should be brought to the hearing. If you need more time to get witnesses or documents, let the judge know this and explain why it is needed. If you cannot get the evidence you need, ask for a subpoena (see below). The judge considers only the evidence at the hearing that is accepted into the record. You have the right to see and talk about any document that the judge will consider. At the end of the hearing all parties can give closing statements.
PROPER BEHAVIOR IS EXPECTED FROM EVERYONE WHO ATTENDS A HEARING. Violence, threats or insults will not be tolerated.
Do I have to produce all of the evidence requested on the Notice of Hearing?
Yes. If you tried but cannot get all of it, explain it to the judge. If you can’t get the evidence because the person who has it won’t give it to you, you can ask the judge for a subpoena.
Can I show you a video or play an audio tape that is important to my case?
It is possible that such equipment may be supplied by the hearing office. Notify the hearing office in advance if you intend to produce a video tape, audio tape or computer disc.
Can I tape record the hearing?
No. Only the judge tape records the hearing.
How long will the hearing take?
A hearing lasts as long as the judge thinks it should for everyone to testify. Some hearings will not be finished in one day and will have to be adjourned (continued on another day).
What if the other party does not attend the hearing?
If you asked for the hearing and go to the hearing, then the hearing will be held unless the judge finds there is good reason to adjourn the case. If the hearing is held, the decision will be made based on your testimony and evidence. If the other side asked for the hearing and does not show up, then a decision will be issued saying that the determination remains in effect. An absent party can apply to reopen the case. Another hearing would be held, and you will get notice of that if it happens. It is important for you to come even if you have been to a hearing already.
What if I have a witness who can’t show up on the date of the hearing?
Go to the hearing and be prepared to present the rest of your evidence. Explain to the judge who the witness is, why the witness cannot be there and why the testimony is necessary. If the judge decides that the missing witness is necessary, the hearing will be adjourned and rescheduled to a later date.
What if I come late to the hearing?
If you arrive at the hearing while it is going on, you will be allowed to join the hearing if you have a reason for your lateness. If you arrive after the hearing has been closed, you will be told what you have to do next. Call the hearing office soon as you know you are going to be late.
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AFTER THE HEARING:
What if I miss the hearing?
If you asked for the hearing and did not get an adjournment, you will get a decision that says you did not appear and that the determination against you is sustained. If the other side asked for the hearing, the judge will hold the hearing without you and will make a decision based on the other party’s evidence. If you have a good reason for missing the hearing, write or fax the office where you filed your claim right away to reopen your case. A new hearing will be set up. If the judge finds you had a good reason to miss the first hearing, the case will be reopened and a new decision will be made.
How long does it take for a case to be scheduled after it is adjourned?
A hearing will be rescheduled usually within four weeks.
How long does it take for a case to be scheduled after I apply to reopen?
Within four weeks, you should be notified of the date of the next hearing.
How many times can a party apply to reopen?
Usually, after three failures to appear for a hearing, the next request will be sent to the Appeal Board and will not be automatically scheduled as a hearing. If you receive a Notice of Hearing, you should come to that hearing unless you know it has been adjourned.
How long until I get a decision after a hearing?
The decision will be mailed as soon after the hearing as possible, usually within three weeks, and sometimes within days.
What is the decision based on?
Only the testimony and any other evidence that was accepted for the record by the judge at the hearing can be used in making the decision. In the decision, the judge will set forth the facts found from evidence, the reasons for the findings, and the decision itself. If you cannot understand the judge's decision, you may call the Appeal Board and request an explanation. If the judge or the Appeal Board determines that you are overpaid benefits, you may have to repay the benefits.
Should a claimant continue to claim benefits by phone or internet?
Yes, continue to certify each week for benefits as long as you are unemployed and claiming benefits. This is true even if a hearing was requested or held, or an appeal was made to the Appeal Board or to Court. Continue to follow all other instructions from the Unemployment Insurance office.
How long will it take me to get my benefits if I win the hearing?
It should not take long. Questions about such benefits should be directed to the Unemployment Insurance office at which the claim was filed.
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APPEAL TO THE APPEAL BOARD:
What can I do if I don’t agree with the judge’s decision?
If you were at the hearing and lost all or part of the case, you may file an appeal to the Appeal Board. The decision will contain instructions explaining how to file an appeal. You can appeal in writing, either by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126, or by fax to 402-6208. Your letter must include the ALJ Case Number (which is listed on the decision above the claimant’s name).
An appeal must be postmarked or faxed no later than 20 days after the date printed or stamped on the front of the ALJ decision. The 20-day time period includes all weekends and holidays.
If you did not come to the hearing but believe you had a good reason for not being there, you can apply to reopen the case by writing to the Administrative Law Judge Section. You should include an explanation why you did not attend the hearing.
Who can appeal?
Both the claimant and the employer may appeal, as long as they appeared and testified at the hearing. The Commissioner of Labor may also appeal even if not represented at the hearing.
What happens after an appeal?
You are sent a notice of receipt of appeal with instructions about the appeal including how to submit a statement and how to ask to see the transcript of the hearing. This is true if you appealed or if the other side appealed.
Can I testify again or add anything to the case?
Most of the time there are no more hearings and the Appeal Board will decide the case based on the record from the judge’s hearing, Whenever the Board decides that another hearing is necessary, an order or hearing notice will be sent to you. New information submitted by a party on appeal will be considered only if a hearing is ordered by the Appeal Board and that information is received as evidence.
Do I have to submit a statement on the appeal?
No. You don’t have to submit a statement but you should send one if you want the Appeal Board to know why you think the judge’s decision was wrong. Two copies of the statement must be sent to the Appeal Board. If the statement is submitted by an attorney, the attorney must serve copies of the statement on opposing parties and any opposing counsel and submit an affidavit of service to the Board with the statement.
How much time does an appeal take?
The decision will usually be mailed in two to three months.
Can an appeal cause benefits that have already been received to be returned?
If the final decision is not in the claimant’s favor, benefits that have been received may have to be repaid.
Is it over after the Appeal Board’s decision?
No. Within thirty days from the date of the decision, a party can either apply to the Appeal Board for a reconsideration of the decision, or appeal to the Appellate Division of the State Supreme Court, Third Department.
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FREQUENTLY ASKED QUESTIONS BY EMPLOYERS:
Can a claimant collect benefits while working?
Yes, as long as the claimant works fewer than four days in a week and earns less than the maximum weekly benefit rate (currently $405). The weekly benefits will be reduced by one-fourth for each day worked.
What if the claimant is not claiming benefits against my account?
Neither you nor the claimant has a choice about which employer is charged for a claim. This is determined by statute. All employment within the base period (which can be up to eighteen months prior to the filing of a claim) is considered. The claimant’s last employment prior to filing the claim is also considered even if it did not occur within the base period.
What if the claimant has returned to work?
The judge will still determine the claimant’s entitlement to benefits and the employer’s chargeability for the period when the claimant was unemployed and claimed benefits.
The claimant quit without giving me any notice or reason. Why should I be held liable for the benefits when my business suffered as a result?
The statute, as amended in 2000, provides that a base period employer may be charged regardless of the reasons a claimant left a job provided the claimant has subsequent employment and earnings in excess of five times the maximum weekly benefit rate (currently $405) before a claim for unemployment benefits is filed and provided the claimant is otherwise eligible to receive benefits.
