UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another recent case which illustrates the need for Claimant's to offer a valid excuse for a late request:

"IN MATTER OF GANISIN v. COMMR. OF LABOR, 908 N.Y.S.2d 759 [3d Dept 10-7-2010]

Decided and Entered: October 7, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 23, 2009, which ruled that claimant's request for a hearing
was untimely.

Pope & Schrader, L.L.P., Binghamton (Kurt Schrader of counsel),
for appellant.

Andrew M. Cuomo, Attorney General, New York City (Steven Koton of
counsel), for respondent.

Before: Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

The Department of Labor, by initial determinations mailed September
18, 2008, found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. Additionally,
claimant was charged with a recoverable overpayment of $810 and his right
to receive future benefits was reduced by 44 days for having made willful
false statements. Claimant mailed his request for a hearing on January
12, 2009. The Commissioner of Labor objected to the timeliness of the
hearing request and, ultimately, the Unemployment Insurance Appeal Board
ruled that claimant's request was untimely, prompting this appeal.

We affirm. Pursuant to Labor Law § 620 (1) (a), a dissatisfied claimant
has 30 days in which to request a hearing from the date of the mailing of
the initial determination, unless physical or mental incapacity prevents
him or her from doing so (see Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466,
467 [2008]). Here, claimant received the initial determinations shortly
after they were mailed and did not proffer a valid excuse for why he
failed to request a hearing until nearly four months later. As such, we
see no reason to disturb the Board's determination (see Matter of Wright
[Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d at 1088).

Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

The courts have generally been extremely strict with this 30 day requirement for Claimants. For example, this case just came down about 10 days ago:

"IN MATTER OF DESANI v. COMMR. OF LABOR, 509336 [3d Dept 11-18-2010]
2010 NY Slip Op 08415 Decided and Entered: November 18, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 16, 2009, which ruled that claimant's request for a
hearing was untimely.

Elissa Desani, New York City, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a sales associate at a jewelry store, resigned her
position in June 2008 and thereafter applied for unemployment
insurance benefits. By initial determination mailed
on August 25, 2008, the Department of Labor found that claimant was
ineligible for benefits because she voluntarily left her employment
without good cause. The Department further charged claimant with a
recoverable overpayment of $460.75 and found that she had made false
statements to receive benefits and, therefore, reduced her right to
receive future benefits by eight days. Claimant, who was out of the
country from July 2008 until December 2008, did not request a
hearing until her return. The Commissioner of Labor objected to the
timeliness of her request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request
was untimely. Claimant now appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), when dissatisfied
with an initial determination, a claimant must request a hearing
within 30 days unless physical or mental incapacity prevents him or
her from doing so (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d 1088 [2010]). Here,
claimant admittedly waited nearly four months before requesting a
hearing and failed to proffer an acceptable excuse for the delay
(see Matter of Wright [Commissioner of Labor], 71 AD3d at 1324;
Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]).

Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

With respect to Claimant's request for a hearing, we must first look to the statute:

"Sec. 620. Referees` hearings. 1. Disputed claims for benefits. (a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.

Paragraph (a) as amended by L. 1959, Ch. 224, L. 1975, Ch. 82 effective October 1, 1975 and further amended by L. 1998, Ch. 589, effective April 1, 1999."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

This is an issue coming up in several cases - the difference between the law and rules regarding a Claimant's request for a hearing and an Employer's request for a hearing.

Let me first begin with the FAQ from the Appeal Board website:

"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."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

As we approach Thanksgiving, I realize in this case that there is much to be thankful for:

1. The Claimant who trusted me to present the case.

2. The Appeals Board staff who helped me in scheduling the various hearings.

3. The ALJ who initially (and correctly) decided the case in the Claimant's favor.

4. The Employer's attorney and the Employer - because after the attorney actually reviewed the transcript, based upon counsel's advice, the Employer followed the attorney's advice and withdrew their appeal.

The Claimant was discharged in August 2008. It is now November 2010. The Claimant received, after much litigation, unemployment insurance benefits. Most of my fee has been paid by the Claimant. For all this and more, I am thankful.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The fee was quickly approved by the Appeal Board on September 22 and a copy was sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A new request for fees was made - and due to the extra time put in regarding the application to reopen and then the withdrawal, there was an additional $150 in fees requested - for a total request of $1,650.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 2 of the decision accepting the withdrawal by the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the decision accepting the withdrawal by the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A decision from the Appeal Board was mailed out on September 17, 2010 - almost 6 months after the attorney for the Employer withdrew the Employer's appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

However, even though the Employer had submitted a document on March 26, 2010 that it was withdrawing it's appeal, the appeal is still pending an official decision from the Appeal Board - a decision must be entered whether or not the Appeal Board accepts the withdrawal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A letter was sent on March 26, 2010 by the Employer's counsel to the Appeal Board, the Claimant and myself withdrawing the appeal, confirming the telephone conversation that the Employer would not pursue the appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Approximately 2 hours in reviewing the transcript, updating research, beginning the preparation of a brief, etc. was performed by me when I received a phone call from the Employer's counsel on March 25, 2010 - the Employer's counsel, after reviewing the transcript, realized the Employer had no grounds for appeal, that the decision of the ALJ was correct and that the counsel was advising the Employer to withdraw the appeal. I immediately notified the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In anticipation of the Employer filing a statement or brief ion appeal, now was the time to review the transcript once again, research the law and prepare a proposed reply statement (based upon the arguments that were made in the notice of appeal and in the transcript of the hearing) because the time limits for reply, etc. are strict. From Appeals Board Rule 463.1:

"(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying.

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

After discussing the methods we would utilize in this second appeal, I waited for the Employer's Request To Inspect Transcript, which arrived shortly.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Realizing that the Employer was, for lack of a better term, tenacious, I contacted the Claimant to ascertain whether the Claimant had a new job, was still collecting UI benefits, status, etc. in order to ascertain the most cost effective way of dealing with this second appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

From the Appeals Board received on or about March 6, 2010.

IN HONOR OF VETERAN'S DAY

My father - WW II - the Pacific.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is the applicable rule regarding re-opening of Appeal Board decisions:

"Section 463.6 Reopening.

(a) On its own motion or on application duly made to it, the board, in its discretion, may reopen a decision.

(b) On its own motion or on application duly made to it, the board, pursuant to section 534 of the law, may modify or rescind its order, decision or determination. If an application for such reopening is not received by the board or postmarked within 30 days after such order, decision or determination, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may, without further notice to the parties, deny the application by an order which shall be sent to all parties. If an application is not denied by an order of the board for this reason, notice of reopening or notice or receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may adhere to, modify or rescind its prior decision or may deny the application to reopen.

(c) On its own motion or on application duly made to it, the board, pursuant to subdivision 3 of section 620 of the law, may modify or rescind an administrative law judge decision, where no appeal was duly taken. If an application for such a reopening is not received by the board or postmarked within 25 days after the administrative law judge decision, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may hold a hearing, upon due notice to all parties, regarding the timeliness of the request for the board to reconsider the administrative law judge decision. The board may, without further notice to the parties, dismiss the appeal or deny the application by an order which shall be sent to all parties. If an application is not thus dismissed or denied, notice of reopening or notice of receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as
those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may affirm, modify or reverse the administrative law judge decision or may deny the application to reopen.

(d) Whenever the board reopens a decision pursuant to this section, it shall state the reasons therefor in its decision."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I immediately responded with this letter in opposition. It is dated February 13, so as I check my time records, it appears that the employer counsel's letter of February 12 was received on February 13 and I sent this letter out that evening.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Then on or about February 14, 2010, I received a copy of this letter from the Employer's first counsel.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At this point, let us recap:

1. Claimant was denied benefits from the DOL.

2. Claimant received pro bono representation by me for several days of hearings over several months.

3. Claimant received a decision from the ALJ overruling the DOL decision.

4. Employer appealed.

5. Claimant's representation by me continued on a fee basis.

6. Hearings were held on the timeliness of Employer's request for appeal for several days over several months.

7. Appeal Board eventually allowed the appeal.

8. Claimant copied the transcript.

9. But Employer does not pursue the appeal and submits no documents.

10. The Appeal Board upholds the decision of the ALJ.

11. I applied for a fee of $1,500 (although my normal rate would have been at around $3000).

Thus, at this stage, the Claimant has a potential legal fee of $1,500 for an appeal by Employer that Employer did not pursue. From the date of Claimant's termination of employment to this stage, a period of approximately 1 1/2 years has transpired. And the saga does not end here.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Here is the request for fee approval sent on February 12. A copy was sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

After I and the Claimant received the decision, I wrote to the Claimant:

"Hello:

You won. Congratulations.

I will send my application for counsel fees to the Appeals Board and a copy to you. Once they approve a fee, I will send you a copy of their approval.

Best of luck!"

Remember from an earlier blog, although I had agreed to do the ALJ hearing on a pro bono basis through a not for profit organization, I had advised the Claimant that any appeal would be on a fee basis as per the Appeal Board rules.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 3 of the decision dated February 9, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 2 of the decision dated February 9, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the decision dated February 9, 2010 and received on February 11, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

On some cases, I have waited for months, 6 or more, for a decision from the Appeal Board; however, on this case, a decision was received on February 11, 2010 about a month after statements were ostensibly due. The Claimant was successful and I so advised the Claimant.