NBI SEMINAR MATERIALS: What you Need to Know About the Hearing Process
I had the great opportunity to lead (perhaps “teach”) a continuing legal educationseminar hosted by the National Business Institute. The subject was “Human Resource Law From A to Z” and I had opportunity to speak on Unemployment Compensation. I was joined by other capable attorneys who each had their own topics to present.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “What you Need to Know About the Hearing Process.”
Unemployment Compensation hearings are heard by a fact-finder known as a referee. The hearings are semi-formal in nature, but generally follow typical adversarial hearing procedure. Perhaps the single most important thing to know about referees’ hearings is that they are the one, and only, opportunity for either party to present evidence, testimony, and argument in support of his position with regard to the claim for benefits. The referee’s decision is based solely on the file maintained by the Department of Labor and the testimony and evidence offered at the hearing. It is unfortunately common for parties not to take the referee’s hearing seriously, or believe it is only some sort of preliminary (or intermediate (as opposed to final)) hearing, as it is not in a court or before a judge, however, as stated above, it is actually vitally important as it is the only fact-finding hearing in the unemployment compensation process. Similarly unfortunate is that claimants are often told by the Department of Labor that they do not need an attorney at the hearing, however, considering how significant the referee’s hearings are to a claimant’s eligibility, it is highly recommended that the parties are represented at them.
Referees’ hearings take place at one’s local Unemployment Compensation hearing office, specifically in the referee’s office. The hearings are audio recorded and transcribed if appealed to the Board of Review. The referee’s office makes the complete claim file available to the parties prior to the hearing and, to that end, the parties should appear at least fifteen minutes prior to the hearing to review it. The file typically consists of the correspondence between the parties and the Department of Labor, the application filed by the claimant, any response made by the employer, the income records from the claimant, and the initial determination of (in)eligibility.
As stated above, the hearing itself takes place in the referee’s personal office. The arrangement of the room typically consists of the referee’s desk at the front (where the referees’ sits) and a long table perpendicular to the referee where the parties sit on opposing sides (some referees’ office have a traditional courtroom set up with the parties at side-by-side tables facing the referee). The parties can be accompanied by their attorneys (or non-attorney representative), witnesses, and non-participating observers. By statute, the parties may have a non-attorney representative instead of a lawyer who functions in a similar capacity as a lawyer.
The hearing begins with the referee reviewing and identifying literally every page in the claim file (which was just reviewed by the parties). Upon completion of the review, the parties may object to the admissibility of the documents in the claim file. Typically, the objections are to relevance (for containing information irrelevant to the claim) and hearsay. It is not uncommon for the documents in the file, especially from the employer, to be written (or prepared) by a non-party who is not present at the hearing. For example, the employer may appear at a referee’s hearing through its owner and a witness who saw the events giving rise to the employee’s termination. By contrast, the contents of the file may have been written and/or prepared by the employer’s Human Relations director who is not present at the hearing, and, therefore, the contents would be hearsay. If the objections are sustained, the documents objected to are not considered when the referee renders his decision.
After the file is reviewed, the hearing commences in a way that follows the traditional procedure of an adversarial hearing. The hearing typically begins with an opening statement from the parties (some referee’s dispense with this portion of the hearing). After open statements, the party which appealed the decision calls and examines its witnesses. Through the witnesses, documents may be submitted as evidence. The witnesses may be cross-examined by the adverse party. When finished, the adverse party calls and examines its witnesses. Closing arguments – if permitted by the referee – are then offered and the hearing concludes.
A very common mistake made by the parties – especially the employer – is not bringing the appropriate witnesses. For example, employers often assert that a claimant was terminated from his employ due to willful misconduct, which would render the claimant ineligible for benefits. This same employer may appear at the hearing with the owner and the human relations director as witnesses, neither of whom witnessed the misconduct that gave rise to claimant’s termination. Unfortunately for the employer, the only testimony they would be able to provide regarding the misconduct is inadmissible hearsay. So, needless to say, it is vitally important to bring the proper and relevant witnesses to the hearing.
As a referee’s hearing follows traditional adversarial procedures, the parties are free to make various objections as permitted by the rules of evidence. As a referee’s hearing is semi-formal (similar to a district court (i.e.: small claims) hearing), objections for “best evidence” – and the like – are often not enforced. Similarly, if a health condition is an issue, it is not necessary to call the physician or health care professional as a witness to ensure medical records are admissible as evidence. The burden of proof lies with the party making the assertion. For example, if the claimant was terminated for willful misconduct, the employer bears the burden to prove that it occurred.
A referee’s decision is issued within about two weeks of the hearing and is appealable to the Board of Review by the date listed on the determination/opinion issued by the referee.