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 - EMPLOYER DEFAULTS

There is one recent case from the Appellate Division, 3rd Department that discusses the issue of a default by Employer:

"IN RE KHAN, 66 A.D.3d 1098, 886 N.Y.S.2d 776 [3d Dept 2009]

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 25, 2008, which ruled that Mirage Limousine Service, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others
similarly situated.

Law Offices of G. Oliver Koppell & Associates, New York City (G. Oliver Koppell of counsel), for appellant.

McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Mohamed M. Khan, respondent.

Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.

Before: Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur.

Kane, J.

Mirage Limousine Service, Inc. operates a black car limousine business that provides its clients transportation to and from prescribed destinations. In separate decisions, the Unemployment Insurance Appeal Board determined that an employer-employee relationship existed between Mirage and claimant, a limousine driver, and others similarly situated and assessed Mirage additional unemployment insurance contributions. Mirage now appeals both decisions.

We affirm. Initially, Mirage contends that it was deprived of its due process rights by the Administrative Law Judge's denial of its request for an adjournment of the initial hearing on this matter in order to obtain counsel. We disagree. Although notice of the hearing date was given only a week before the hearing, Mirage was aware of its need for counsel when it requested the hearing months earlier. A review of the record indicates that Mirage was afforded the opportunity, both prior to and at the start of the hearing, to either withdraw from the hearing and obtain counsel, with the understanding that a default judgment would be entered against it, or to continue with the hearing without representation. It was further explained that if Mirage withdrew its appearance from the hearing, it would then be able to move to reopen the matter once counsel had been obtained, and a new hearing would be held if the motion were granted. Mirage then decided to proceed with the hearing without counsel. Under these circumstances, we cannot conclude that Mirage was deprived
of due process (see Matter of Crisalli [Commissioner of Labor], 279 AD2d 925, 925 [2001]; Matter of Palmer [Rescue Mission Alliance of Syracuse — Commissioner of Labor], 273 AD2d 525, 525-526 [2000]).

........"

What is important in this decision, for both Employers and Claimants, is that the time to get an attorney is when you request a hearing, and do not wait until you get the notice of the hearing date. Of course, in this matter, the court notes that the Employer could have defaulted and moved to reopen - but here the Employer chose to proceed without counsel.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

The effects of the Employer in the past two examples, viz., Requesting A Hearing, Defaulting, Applying to Reopen, Defaulting, etc. are as follows:

1. Increase stress suffered by Claimant.

2. Increase in attorneys fees and expenses incurred by Claimant.

3. Increase in costs, manpower, etc. on the Appeals Board who has to process the applications, etc.

4. Other Claimants who are seeking hearings when they have been denied benefits are experiencing a longer delay in obtaining their hearing date because hearing time is being wasted on hearings that do not take place because of Employer defaults.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Now for the interesting part on Example 2:

1. The incident described in Number 1 occurred in February 2009.

2. The incident described in Number 12 occurred in July 2010.

Again, almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer and again, the stress level for Claimants can be very high in these situations.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Here is example 2:

1. Claimant is terminated and applies for benefits.

2. Employer files objection.

3. DOL investigates and holds Claimant eligible.

4. Employer requests hearing.

5. At hearing, Employer defaults. Decision issued in favor of Claimant.

6. Employer sends letter to Appeals Board that it did not receive Notice of Hearing in time.

7. Appeals Board send out notice of application to reopen granted.

8. Claimant's counsel sends letter to Appeals Board objecting to application.

9. Employer send letter to Appeals Board that it is not requesting a reopening but merely advising that it never received notice.

10. Claimant's counsel sends letter to Appeals Board asking that it treat Employer's letter as a withdrawal of objection.

11. Appeals Board schedules a second hearing.

12. At second hearing, Employer defaults.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Now for the interesting part on Example 1:

1. The incident described in Number 1 occurred in January 2009.

2. The incident described in Number 8 occurred in July 2010.

Almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer. The stress level for Claimants can be very high in these situations.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Some examples of experiences - example 1:

1. Claimant is terminated and applies for benefits.

2. Employer files objection.

3. DOL investigates and holds Claimant eligible.

4. Employer requests hearing.

5. At hearing, Employer defaults. Decision issued in favor of Claimant.

6. Employer makes application to reopen.

7. Application to reopen is granted.

8. At second hearing, Employer defaults.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

So if an Employer can apply to reopen after default, how many times can this be done? From the Appeals Board website:

"How many times can a party apply to reopen?

Usually, after three failures to appear for a hearing, the next request will be sent to the Appeal Board and will not be automatically scheduled as a hearing. If you receive a Notice of Hearing, you should come to that hearing unless you know it has been adjourned."

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Next let us examine one of the Appeals Board regulations:

"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."

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Here is the situation: Claimant applies for benefits, Employer objects, DOL investigates and rules in favor of Claimant and Employer requests a hearing. On hearing date, Claimant appears but Employer does not. What happens. First, from the Appeals Board website:

"What if the other party does not attend the hearing?

If you asked for the hearing and go to the hearing, then the hearing will be held unless the judge finds there is good reason to adjourn the case. If the hearing is held, the decision will be made based on your testimony and evidence. If the other side asked for the hearing and does not show up, then a decision will be issued saying that the determination remains in effect. An absent party can apply to reopen the case. Another hearing would be held, and you will get notice of that if it happens. It is important for you to come even if you have been to a hearing already."

UNEMPLOYMENT INSURANCE - EMPLOYER'S REQUEST FOR HEARING

Unfortunately, at the hearing yesterday, the Administrative Law Judge reserved decision on the issue of timeliness of the Employer's Request For Hearing so now we are on for hearing number 3 on the issue of misconduct. This is unfortunate because now the Claimant has further hearings, the attorney fee will be greater, more delays, etc. But the law is clear on what is a timely request for a hearing notwithstanding the language in the Appeal Board rules and the case law should govern. Here are two more cases:

IN RE LURIE, 49 A.D.3d 932, 853 N.Y.S.2d 390 [3d Dept 2008]

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 31, 2006, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that the employer's request for a hearing was untimely.

Jonathan B. Lurie, New York City, appellant pro se.

McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Christopher D. White, respondent.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.

On November 23, 2004, the Department of Labor issued an initial determination holding claimant eligible to receive unemployment insurance benefits and the employer liable for contributions based on remuneration paid to claimant and others similarly situated. However, the employer did not request a hearing challenging the determination until March 3, 2005. Following a hearing on the issue, in two separate decisions, an Administrative Law Judge found that the hearing request was untimely as to the issue of claimant's eligibility and as to the issue of the employer's liability for contributions. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. The employer successfully moved to reopen and, upon reconsideration, the Board adhered to its prior decisions, prompting these appeals.

Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing. Although the employer offered an excuse for its failure to request a hearing within the 30-day period following the November 23, 2004 determination, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc. — Commissioner of Labor], 22 AD3d 1002, 1002 [2005]; see Matter of Schwartz [Durhon Oldham Natl. Income Life — Commissioner of Labor], 17 AD3d 903, 903-904 [2005]). Accordingly, we will not disturb the Board's decisions with respect to timeliness. In view of our disposition, we need not address the employer's remaining claims.

Ordered that the decisions are affirmed, without costs.
________________________________________

IN RE HARROUN, 44 A.D.3d 1220, 843 N.Y.S.2d 526 [3d Dept 2007]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Law Offices of David J. Sutton, P.C., Garden City (Brian C. Pascale of counsel), for appellant.

Before Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.

An initial determination by the Commissioner of Labor finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on August 23, 2005. Thereafter, by correspondence dated September 21, 2005 and filed with the local unemployment office on September 26, 2005, the employer requested a hearing to protest the determination. Following the hearing, the Administrative Law Judge overruled an objection by the Commissioner of Labor that the employer's hearing request was untimely, and upheld the initial determination of eligibility for benefits. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge's decision, finding that claimant was disqualified from receiving benefits on the ground that she had been discharged from her employment for misconduct. Claimant now appeals.

We reverse. The 30-day period in which the employer had to request a hearing to contest the Commissioner of Labor's initial determination expired on September 22, 2005 (see Labor Law § 620 [2]). Although the employer's hearing request was dated and apparently mailed on September 21, 2005, it was not filed until September 26, 2005. The timeliness of such a request is measured by the date on which it was filed, and not on the date on which it was mailed (see Matter of Levine Commissioner of Labor], 253 AD2d 954, 955 [1998]). As such, the employer's request for a hearing, filed four days after the controlling 30-day limitations period elapsed, was time-barred (see id.).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

UNEMPLOYMENT INSURANCE - EMPLOYER'S REQUEST FOR HEARING

Today I will deal with a conflict as to what is the proper time for an employer to file a request for a hearing after it has been determined that the Claimant is entitled to benefits.

The statute involved is:

LABOR LAW SECTION 621 (2):

"2. Contested determinations, rules, or orders. Within twenty days after the mailing or personal delivery of notice of the decision after a hearing on contested determinations, rules or orders by the commissioner, the employer may take an appeal to the appeal board, provided he appeared at the hearing, by filing a notice of appeal with the commissioner, and the commissioner may likewise within such period take an appeal to the board by giving written notice thereof to the employer, regardless of whether or not the commissioner appeared or was represented at the hearing before the referee."

The regulation involved is:

Section 461.2 Application for hearing by employer under subdivision 2 of section 620 (employer case)(italics supplied).

Any employer who claims to be aggrieved by any determination, rule or order of the commissioner under any provision of the law, may apply to the commissioner for a hearing before an administrative law judge, pursuant to subdivision 2 of section 620 of the law, within 30 days after the mailing or personal delivery of notice of such determination, rule or order. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The application for such hearing should be in writing stating the reasons therefor.

Now note the italic section of the regulation and how it conflicts with the following 3rd Department case:

SURDAM v. COMM. OF LABOR, 51 A.D.3d 1182, 855 N.Y.S.2d 923 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 5, 2007, which, upon reconsideration, adhered to its prior decision ruling, among other things, that claimant was disqualified from receiving unemployment insurance
benefits because his employment was terminated due to misconduct.

Martin T. Surdam, Tonawanda, appellant pro se.

Before: Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ.

An initial determination finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on April 19, 2006. Although the employer thereafter requested a hearing to challenge that determination, an Administrative Law Judge sustained the initial determination upon the employer's failure to appear. The employer successfully applied to reopen the case and, following a hearing, an Administrative Law Judge overruled an objection by the Commissioner of Labor to the timeliness of the employer's hearing request and determined that claimant was disqualified from receiving benefits because he lost his employment as a result of misconduct. The Unemployment Insurance Appeal Board affirmed that decision and, following claimant's successful application for reopening and reconsideration, adhered to its decision. Claimant now appeals.

Although the employer's hearing request was dated within the statutory 30-day period (see Labor Law § 620 [2]), it was not filed with the Department of Labor until that time period had expired. As such, it was not a timely request (see Matter of Harroun [Commissioner of Labor], 44 AD3d 1220, 1221 [2007]; Matter of Levine [Commissioner of Labor], 253 AD2d 954, 955 [1998]) and the Board's decision must be reversed.

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.