UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Additional aspects about the special instructions and notices that should be noted: this is usually the first time a Claimant is notified about the availability of representation. I have always urged Claimants to obtain representation when they first receive a notice of adverse determination or when they receive notice of an employer's request for hearing. Regarding the need for representation, I suggest reading the following:

Unemployment Compensation: Continuity,Change, and the Prospects for Reform, Jerry L. Mashaw, Yale Law School

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

There are other aspects about the special instructions and notices that should be noted: and that is reviewing the file. This is basically the only discovery available prior to the hearing. It must be copied and reviewed by the attorney so that the Claimant's attorney is aware of all statements and documents made or submitted by both the Claimant and the Employer to the DOL. It is only after a review of the file that an attorney can properly evaluate a case.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The next page of the Notice of Hearing mailed on July 12, 2010. Note the special instructions and notices about the hearing. The first to note is the notice that of repayment - if you received payment of benefits and are later held to be ineligible, the DOL will seek reoayment and you will get a notice of that.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The next page of the Notice of Hearing mailed on July 12, 2010. Note the special instructions about the Employer's witness to testify by phone.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The next page of the Notice of Hearing mailed on July 12, 2010. Note that one the purposes of the hearing is the Employer's Application To Reopen.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The Notice of Hearing was mailed on July 12, 2010. Here is page 1.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

After speaking to the ALJ office at the end of June, 2010, a new hearing was tentatively scheduled for July 19, 2010 (remember this was a new hearing requested by the Employer after defaulting at the February hearing). I advised the Claimant by email and we waited for the formal notice.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The decision of February 4, 2010 was from the Hauppauge, NY ALJ office. I had reviewed the file and consulted with the Claimant and agreed to take on the matter. It was clear to me that the Employer's objections were without merit. My practice is limited to the Garden City, NY ALJ office so I made a formal appearance and request to transfer the case to the Garden City, NY ALJ office on March 16, 2010.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

So the Claimant is in this position:

1. The Claimant was terminated.

2. The Claimant applied for UI benefits.

3. The Employer objected.

4. The DOL investigated.

5. The DOL determined that the Claimant was entitled to benefits.

6. The Employer filed a Request For Hearing.

7. The Employer defaulted at the hearing.

8. The ALJ upheld the determination of the DOL.

9. The Employer filed (it's first of many) application to reopen.

This can be a stressful situation for a Claimant. The stress begins at number 1 above, viz., being terminated. It should at least be reduced after applying for UI benefits and they are received. But when the Employer objects and an investigation and then a hearing is involved, the stress level increases. And after the ALJ upholds the DOL determination and the Claimant is led to believe that the matter is resolved, imagine the stress level when the Claimant realizes that the process is starting all over again.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is the final page of the Employer Default For Nonappearance dated February 4, 2010.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 2 of the Employer Default For Nonappearance dated February 4, 2010. Note that the instructions only discuss the process of an appeal - the remedy for a default is not an appeal, but an application to reopen.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

At the first hearing, the Claimant appeared pro se. Here is page 1 of the Employer Default For Nonappearance dated February 4, 2010.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The initial documentation sent to me revealed what appeared to be a simple matter. The Claimant was terminated from employment in January 2009, filed for benefits in February 2009, the Employer immediately objected on the grounds of misconduct, the DOL investigated through questionnaires and found no misconduct and a notice of determination was maled in March 2009, the Employer filed a request for hearing in April 2009, a hearing was held months later on February 2010, the Employer did not attend the hearing, and the ALJ upheld the DOL determination that the Claimant was entitled to benefits.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

I consulted with the Claimant by phone and asked the Claimant to send me all files for review. In particular, I instructed the Claimant to obtain a copy of the full file from the ALJ office so I could review the Employer's statements and documents to the DOL, the Claimant's statements and documents to the DOL, the initial DOL determination, the ALJ determination, the employers application to reopen, etc. Before one can properly evaluate a case, one needs to review the documents.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

In March 2010 I received a call from a Claimant and was told the following: the Claimant was terminated from employment in 2009 and applied for benefits. The Employer objected on the grounds of misconduct. The DOL, after investigation, held that the Claimant was entitled to benefits. The Employer filed a request for hearing. A hearing was held in February 2010 and the Employer defaulted. A decision was issued by the ALJ upholding the initial DOL determination. The Employer filed an application to reopen. The Claimant now wanted counsel.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

This next discussion, Case No. 4, illustrates what some Claimants may experience by virtue of the following Appeal Board rule:

"Section 461.8 Reopening.

On application duly made, an administrative law judge may reopen a case where a decision was rendered upon or following the default of a party affected thereby or following the withdrawal of a request for hearing by a party. Such application shall be made to the chief administrative law judge or a senior administrative law judge who thereupon shall designate an administrative law judge to act upon the application. If such party shows good cause for his default or for his withdrawal of his request for a hearing, he shall be entitled to a hearing on the merits and the case shall be heard at the same time the application is acted upon."

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

This is the final page of the new rules effective December 20, 2010.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

This is the second page of the new rules effective December 20, 2010.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

This is the first page of the new rules effective December 20, 2010.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

This is the second page of the certification that is now required in applications for fee.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

This certification is now required in applications for fee.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

Page 2 of the materials on the new rules.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

Page 1 of the materials on the new rules.

NEW RULES ON ATTORNEY FEES FOR UNEMPLOYMENT INSURANCE

On February 15, 2010, the Appeal Board announced new rules regarding the fee procedure for attorneys and service representatives in Unemployment Insurance matters. Starting tomorrow, I will begin posting the announcement and the new rules and some of the new paperwork involved.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 6 - Doing Pro Bono work is good for you.

So obvious, talked about so much - you do the right thing because it is the right thing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 5 - Hearings are easy, preparation is hard.

I'm sure this is known to most attorneys but not really understood by most Claimants. For the thirty minute hearing I had that eventually succeeded in getting the Claimant benefits, I would estimate that I put in over 40 hours of preparation work, which consisted of the appeal, investigative work, legal research, etc. Unemployment Insurance litigation may be administrative hearings but it does not mean that an attorney can enter a hearing with just a phone call, a quick review of the file and an appearance at the hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 4 - It is the facts, it is the truth that wins cases, not lawyer's legalese or tricks.

This is just my experience. Other attorneys, other litigants may disagree.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson 3 - Documents Speak Louder Than Words!

In this case, the important documents were the medical records and the other tribunal's certified disposition on the issue of misconduct.

Many cases are "Claimant said this, Employer said that". And in UI matters, the law is clear: issues of credibility are first determined by the DOL, then the ALJ and finally the Appeal Board and the conflicting evidence between various witnesses which presents credibility issues fall within the exclusive province of the Appeal Board, which is not obligated to adopt the Administrative Law Judge's (or the DOL's) contrary credibility determinations. See Matter of Cooney [Consolidated Edison Co. of N.Y. — Commissioner of Labor][2001]; Matter of Thompson [New York City Off. of Bronx Borough President — Commissioner of Labor][2000].

So, get documents to back up your case.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 3 - Timeliness.

It may seem harsh, especially when it appears that the DOL, the Appeal Board, and the courts take so much time in making a decision, but the time limitations for Claimants making a claim, a request, etc. must be strictly complied with. Only rarely will extensions be granted.

I have had many consultations where Claimants have failed to file their request for hearing, failed to file their notice of appeal, failed to appear at hearings, failed to timely file an application to reopen, etc. Claimants must remember to read the Claimant's Handbook, the reverse side of the DOL papers they receive, the DOL and Appeal Board website, etc. in order to protect their claim for benefits. If a Claimant cannot get past the timeliness issue, the merits of their case cannot be determined.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 2 - Because obtaining Unemployment Insurance benefits can be a process, if you have been denied benefits at the DOL level, the appeal process will not give you immediate relief.

This is one of the hardest lessons. It is bad enough that a Claimant has lost employment and income. It is bad enough that Claimant is not able to obtain new employment. It is worse when, in addition to the above, the DOL has denied benefits (which many know is not the same as having a job - the most you receive right now in NY with federal assistance is $430 per week for a set time).

In this case, the Claimant lost everything - job, home, mental health - and was on public assistance (and with the award of back benefits, there is the issue of how DSS will handle this). So the question is - what does one do when one has been denied benefits at the DOL level and is not able to obtain new employment?

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Lesson No. 1 - Obtaining Unemployment Insurance benefits can be a process.
If one has been denied benefits at the DOL stage, or, having been granted benefits, a request for hearing is made by the Employer, be prepared for a long process. After the DOL determination stage, there is the ALJ stage, then the Appeal Board, then the Appellate Division, 3rd Department and, in certain cases, the Court of Appeals. In this case, the Claimant:

1. First was denied by the DOL.

2. Second, requested an ALJ hearing.

3. Third, lost at the ALJ hearing.

4. Fourth, an appeal was made to the Appeal Board.

5. Fifth, the Appeal Board ordered a new hearing was ordered.

6. Sixth, the Claimant succeeded at the new ALJ hearing and, some weeks later, received back benefits.

And again, this took place over two years.

This litigation process (and although it is an administrative matter, it should still be considered a litigation) is not instant relief when one has been denied benefits. It is a process that takes time. Yes, I have had cases that were resolved quickly in favor of the Claimant. On the other hand, there was this case. Where one's case may fall, no one can predict.