Thursday, April 8, 2010


Here are more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:

"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 representative, 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."

I note the following:

1. I had a consultation where the matter was adjourned under the following circumstances: the Claimant could not speak English. A relative was present and advised the judge that the relative would represent the Claimant. The judge adjourned the case stating that while the relative may help the Claimant present the Claimant's case, only a lawyer or an authorized service representative can represent a Claimant. So anyone can attend, not everyone can represent.

2. If the additional person present will be a witness, the judge may have the witness sequestered - placed in another room - until it is their turn to testify. The hearing rooms are generally not that large, at least in Nassau County, so it is not a good idea to bring an entourage for support purposes.

3. I have been involved in hearings where the DOL has sent counsel to uphold a denial of benefits but have not yet seen the DOL send counsel to uphold a grant of benefits (when the Employer requested a hearing). I recently had one matter where, even though through cross-examination it was clear that the Employer had submitted false evidence to support the denial of benefits, the DOL counsel did not change it's position that the Employer was a credible witness and that benefits should be denied. Fortunately, the Administrative Law Judges are independent of the DOL and the determination of the DOL was overruled.

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