If you have been denied Unemployment Insurance Benefits (UIB) you can request a hearing before an Administrative Law Judge to have your claim reviewed. You should request a hearing within 30 days of the date of the notice of denial unless you have good cause to miss this deadline. A late request is unlikely to be successful. Examples of good cause would be an unforeseen hospitalization or a failure to receive the notice which you were unable to control. To request a hearing you can either go to your local Department of Labor office, where a staff member will help you complete a hearing request form, or make a request by writing the:
New York State Department of Labor
Unemployment Insurance Division
P.O. Box 15131
Albany, NY 12212-5131
When you apply, you should be sure to include all the issues you want the judge to know about and consider at your hearing. You will receive a notice from the judge’s office stating when and where the hearing will be held and what the issues of the hearing will be; generally, this will arrive in less than a month. The issues are those matters the judge will want to discuss, such as whether you quit your job or were fired.
You may have what is known as a “contested” case, because you were found eligible for and were receiving benefits and your employer has requested a hearing. If this happens you will receive a notice that attaches a copy of the employer’s letter requesting a hearing. This will come before you get the hearing notice. If you have a contested case and you attend your hearing but your employer does not, the judge should grant benefits to you without a hearing. If this happens, you should receive a default decision, saying you won, within a few days. This will only happen if you attend the hearing as scheduled.
Hearings are usually scheduled every 1/2 hour. You should try to show up at your hearing one-half hour to one hour early to review your hearing file (they are usually in a stack at the end of the counter). If you are the first hearing and/or have not had enough time to go through your hearing file, tell the judge when he calls your name that you need more time to review it.
You are allowed to bring and should bring any witnesses who saw or heard the main event that caused you to get fired, quit or laid off. You are allowed to bring documents for the same purpose. If you cannot get witnesses or documents that you need for your hearing, you should ask the judge’s office to issue a subpoena as early as possible prior to the hearing. This can be requested at your hearing as well. The subpoena is a judge’s order for documents and/or persons to be brought to your hearing.
Hearings are tape recorded and the witnesses are sworn in by the judge. The judge asks questions of the employer and their witnesses and you and your witnesses, one side at a time. You and the employer are also allowed to have a turn asking questions of each other and witnesses. It is helpful to write down what the other side is saying because you should not interrupt and may forget to give your version when your turn comes. Also, speak loudly and clearly and give complete descriptions of things the tape cannot see. Use first and last names of people you mention and try to always state what job title they held.
Everyone should discuss only the issues listed on your hearing notice, unless you have important issues that are “relevant” (have to do with the cause of the firing or quit) and that help your case. If the judge or employer starts discussing a totally new issue you should “object” and tell the judge you did not have notice that this issue was going to be discussed at your hearing.
Adjournments (postponement) of part or all of your hearing can be requested by the judge, the employer, or you. The judge may not be able to finish your hearing and may need to adjourn it to finish it at a later date. If you have an objection about a new issue or you want a subpoena for a witness or document that the judge denies, you may want to ask the judge for an adjournment to get these things. If your hearing is adjourned you will get a new hearing notice, usually within a month or less, stating the date and time. If they have agreed to subpoena items or people, this is usually typed on the notice.
Another way judges sometimes adjourn a case is to “close the file with leave to reopen.” This is not as good an option if you requested the adjournment. It means you must apply in writing to the judge’s office to have the case “reopened” within a short time and have good cause for not appearing on the original hearing date.
Evidence are those items that the judge “marks” (places an exhibit number on) and relies on in reaching the decision. The judge will read and may be swayed by documents in your hearing file but should not rely on any documents that have not been “marked” (property entered into evidence). If there are documents that you want the judge to rely on, you should ask that they be marked. The judge should let both sides see the documents and object to them before they are marked. If a document is not signed, dated, or looks suspicious, you may want to object on that basis. The most common objection would be that the document is “hearsay” (an out of court statement) and if the actual witness who wrote the document is not there, you should also object that you are not able to “cross-examine” the person who wrote it. Business documents are usually allowed in anyway if they were prepared in the normal course of business, and have a certification to that effect.
Objections should be made sparingly and for only those matters that are crucial to your case. For example, if the personnel director is relaying what your boss told him about an argument that you had with the boss, you would probably only object to the “hearsay” if it is relevant to the reason you were fired or quit and if what he says is untrue and if it hurts your case. The judges have wide latitude to allow in all kinds of evidence including hearsay if it is relevant, and you would point this out in your favor if an employer or the judge objects to evidence that you want to submit into evidence.
Another important objection that you might want to raise is when the judge or employer are focusing on evidence that is too old, such as an employee warning notice that was a year or more old. You should tell the judge that you object to the “relevance” of the document or testimony when it first starts to come out. The judge may overrule you, but stating your objection may protect you against a decision based on that old evidence.
Before the end of the tape you may make a brief closing statement, highlighting why the testimony shows you are eligible. This is your opportunity to bring up everything. You can refer to testimony the employer gave that was inaccurate, vague, or that conflicted. You can point out parts of your testimony that add up to the conclusion you want the judge to make.
▸ Answer the employer’s question only — don’t give more information. Answer the judge’s question first. Try to also add your brief explanation to the judge after giving him the answer.
▸ Look the judge in the eye.
▸ Speak loudly and clearly for the tape.
▸ Discuss events and people by naming them and giving particular dates, and complete descriptions of places or things.
▸ Do not mud-sling (i.e., tell the judge other rotten things the employer did that have nothing to do with the case).
▸ Bring your employee handbook and past memos, performance reviews, or warning notices and know them inside and out, in case they are referred to.
▸ Try to ask only those relevant matters that you think the employer will admit to.
▸ Ask “yes” or “no” questions (i.e., Isn’t it true you never warned me?).
▸ Don’t ask the employer questions that give them a chance to guess what happened or to give their opinion. If they start giving this type of testimony without being asked by you, object that the answer is not responsive to the question asked and requires a yes or no. The judge can direct the witness to limit his or her response and can strike testimony (remove it) from the record.
▸ Ask always if the person testifying is the one that saw or heard with their own eyes and ears the events or facts which they are saying occurred.
▸ Ask the employer to give the dates that warnings or events happened that were crucial to your discharge or quit.
▸ If the employer is lying, ask very few questions and try to ask a different employer witness who will not lie. Someone who is committed to lying will have had time to think out responses to any question you might have, responses which will probably not be favorable to your side of what happened and why.
▸ If you suspect the employer will lie, ask the least harmful question first. For example, if you got fired for missing a day of work and not calling your boss and both are untrue, ask your boss first if you missed the day of work. If he/she lies, stop asking questions. When it is your turn, tell the judge that you did not miss the day and you called in and spoke with your boss.