Saturday, March 10, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The rules and regulations which guide the ALJ in hearings is found in 12 NYCRR 460:

"Section 461.4. Conduct of hearing.

(a) The administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The administrative law judge shall conduct the hearing in such order and manner and with such methods of proof and interrogation as the judge deems best suited to ascertain the substantial rights of the parties. The administrative law judge may examine the parties and their witnesses. All parties shall be accorded full opportunity to present such testimony and to introduce documentary or other evidence as may be pertinent. At the commencement of the hearing, the administrative law judge shall identify all persons present and shall outline briefly the issues involved. No administrative law judge shall participate in any hearing in which the judge has an interest. Challenges as to the interest of an administrative law judge shall be decided by a chief administrative law judge or senior administrative law judge.

(b) All testimony shall be under oath or by affirmation and a verbatim record of the proceedings shall be made. In lieu of an appearance, the commissioner may submit written statements, records or other documents prior to or at the hearing subject to the provisions of subdivision (h) of this section. Such statements, records or documents shall not be the basis for the decision of the administrative law judge unless they have been received into the record pursuant to the provisions of subdivision (j) of this section. Upon consent of all parties, evidence supplemental to that introduced at the administrative law judge hearing may be made part of the record.

(c) Any party may appear in person or be represented by an attorney or agent. The administrative law judge may require such appearances as deemed to be necessary. All parties and their attorney or agent shall have the right to call, examine and cross-examine parties and witnesses. The have the right to offer relevant documents, records and other evidence which the administrative law judge may only accept into the record pursuant to the provisions of subdivision (j) of this section. Parties, or their attorney or agent shall have the right to request that subpoenas be issued to compel the appearance of relevant witnesses or the production of relevant documents, records or other evidence. They have the right to request an adjournment of the hearing for good cause shown. Translation services shall be provided to parties in accordance with established legal requirements. During the conduct of the hearing, in accordance with established legal requirements, there shall be a translation of the entire proceeding and of all relevant parts of documents introduced into evidence. At the end of the hearing, each party has the right to make a relevant statement to explain or clarify relevant points which may not have been adequately developed during the hearing.

(d) In the interest of the speedy administration of justice and without prejudice to the substantial rights of any party and for good cause shown and in the discretion of the administrative law judge, any issue in a case or any other issue related thereto may be heard and decided, though not specifically indicated in the notice of hearing. The administrative law judge must set forth on the record the reason for such action and must inform the parties of the intention to consider a new basis for denying or granting benefits, or to consider an issue not specifically indicated in the notice of hearing. The judge must inform the parties of their rights in this regard and must accord them an opportunity to request an adjournment to adequately prepare for such new basis or issue.

(e) Whenever a case is assigned to an administrative law judge the hearing or any adjourned hearing thereon shall continue before the same administrative law judge until a final disposition thereof, unless the case is transferred pursuant to section 461.7 of this Part.

(f) The chief administrative law judge, a senior administrative law judge or the administrative law judge may sever a case or may consolidate two or more cases where the interests of justice will be served and where there will be no prejudice to the substantial rights of any party.

(g) The parties, or their duly authorized representatives, may stipulate that a specified case involving an issue affecting in common certain claimants be designated as a test case and that the parties be bound by the administrative law judge's decision in such case, subject to the right of appeal. The stipulation shall be filed with the administrative law judge.

(h) Information from the department records and the case file shall be made available by the commissioner and by the administrative law judge to parties to the hearing or their representatives for the necessary preparation and presentation of the case. All parties shall have the right to call, examine and cross-examine other parties and witnesses with regard to such information.

(i) During the conduct of a hearing, any party may request that the hearing or parts thereof be closed to the public or request that documents or parts thereof be marked as confidential. When a request for closure or confidentiality is made, all present at the hearing shall be heard on the application. Upon a showing of good cause, the administrative law judge may grant such closure or confidentiality. If granted, the record and case file shall be marked to show that there is an order of closure or confidentiality, and that order shall continue in effect unless otherwise determined as a result of judicial review.

(j) In reaching a decision the administrative law judge shall consider and rely on only the evidence introduced at the hearing and those facts and law of which official notice has been taken. Official notice may be taken only in situations in which judicial notice might be taken in a court proceeding and in the same manner. The administrative law judge shall not consider, rely on, or refer to any document which has not been: (1) identified, with stated opportunity for any party to examine the document and comment, on the record; and (2) accepted for the record."

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