Saturday, April 3, 2010


Let me comment on some of the statements made on the Appeals Board FAQ website on hearings. The first FAQ is as follows:

"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."

Here, the Claimant must be timely in their request and I would suggest that the Request For Hearing be sent with some sort of delivery confirmation. The Appeals Board and the courts have been strict with time time requirement of 30 days. It is a rule that a non timely requests for hearings will be excused if a physical condition or mental incapacity exists rendering the claimant unable to comply with the statutory requirement or that there be a reasonable excuse for the delay. IN RE BAIRD, 54 A.D.3d 466 (3d Dept 2008); IN THE MATTER OF DIAZ, 6 A.D.3d 1024 (3d Dept 2004); See also see Matter of Tobar (Commissioner of Labor), 308 A.D.2d 651 (2003); Matter of McKinleyo (Commissioner of Labor), 307 A.D.2d 506 (2003). An examination of some cases reveals different constructions of what is a reasonable excuse for a delay. For example, there are these decisions from the Appeals Board:

"Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)

A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)

A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)

A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)

An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)

The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)

An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)

A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)

Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)

When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)

Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)

In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)


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