HOW TO REPRESENT YOURSELF IN AN UNEMPLOYMENT INSURANCE HEARING

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HOW TO REPRESENT
            YOURSELF IN AN
            UNEMPLOYMENT
          INSURANCE HEARING




This handbook has been prepared by MFY Legal Services for general information purposes
only. The information in this handbook is not legal advice. Please consult an attorney for
legal advice, which is dependent upon the specific circumstances of each situation.

                       Copyright  2009 MFY Legal Services, Inc.
                                               TABLE OF CONTENTS

General Overview of Unemployment Insurance ................................................................ 3
  A. Who is Eligible for Unemployment Benefits? ........................................................ 3
  B. What is a Hearing? .................................................................................................. 3
What to Do When You Receive a Notice of Determination ............................................... 4
 A. Request a Hearing in Writing within 30 Days ........................................................ 4
 B. Prepare Your Case .................................................................................................. 4
What to Do if You Are Not Ready on the Day of the Hearing ........................................... 5
What to Expect on the Day of the Hearing ......................................................................... 6
 A. Arrive Early and Be Prepared ................................................................................. 6
 B. The Hearing Process ............................................................................................... 6
Presenting Your Case at the Hearing .................................................................................. 7
  A. Present your Evidence............................................................................................. 7
  B. Cross-Examine Your Employer .............................................................................. 7
  C. Give a Brief Closing Argument .............................................................................. 7
What to Do After the Hearing ............................................................................................. 8
 A. Continue to Certify ................................................................................................. 8
 B. Keep Track of Your Benefits .................................................................................. 8
 C. Decide Whether to Request an Appeal ................................................................... 8
Common Issues and Arguments ......................................................................................... 9
  A. Failure to Timely Request a Hearing ...................................................................... 9
  B. Voluntary Quit Without Good Cause ................................................................... 10
  C. Misconduct............................................................................................................ 10
  D. Overpayment ......................................................................................................... 11
  E. Penalty for Willful False Statement ...................................................................... 12
Resources .......................................................................................................................... 13
  Where to Send Correspondence: ................................................................................... 13
  Where to Go: ................................................................................................................. 13
  Where to Research the Unemployment Insurance Law:............................................... 14
  Where to Look for Information About New Claims and Benefit Checks: ................... 14
Sample Letter Requesting a Hearing ................................................................................ 15
Sample Letter Applying to Reopen a Case ....................................................................... 16
Sample Letter Requesting an Appeal ................................................................................ 17



                                                                                                                         7-01-09 Ver.




                                                                  2
           GENERAL OVERVIEW OF UNEMPLOYMENT INSURANCE


A.     WHO IS ELIGIBLE FOR UNEMPLOYMENT BENEFITS?

In order to be eligible for Unemployment Insurance, you must:

          Have adequate past earnings
          Be currently unemployed
          Be unemployed through no fault of your own
          Be actively seeking reemployment

Once you have applied for Unemployment Benefits either by telephone or online, the
Department of Labor will make a decision regarding your eligibility. If you do not meet
one of the above criteria, you can be denied benefits. Even if you start receiving checks,
your employer may still contest your benefits if he or she believes you quit without a
good reason or were fired for misconduct. If your employer contests your benefits, the
Department of Labor will investigate the circumstances surrounding your unemployment.
As part of their investigation, the DOL will generally send you a questionnaire asking for
your side of the story.

If the DOL agrees with your employer that you quit without good reason or were fired,
your benefits will be denied. At that time, a "Notice of Determination of Ineligibility or
Disqualification" will be mailed to you telling you the reasons for the denial. This notice
will also explain for what period of time benefits are being denied, how to re-qualify, and
how to ask for a hearing. Always read the back and the small print on the Notice of
Determination and all other documents from the Department of Labor.

B.     WHAT IS A HEARING?

A hearing is an informal trial held before an Administrative Law Judge in a hearing
room. Based on the evidence presented at the hearing, the judge will decide whether you
are entitled to unemployment insurance benefits. At the hearing, you, your employer and
any witnesses for either side may testify. The testimony will be recorded. Either side can
also present papers or other physical evidence.

You, or your employer, may request a hearing on any determination affecting your rights
to benefits. Your hearing request must be made in writing and received by the
Department within 30 days of the date the determination was mailed. Make sure you
include your Social Security number on your hearing request letter. You will be notified
of the date, time and place of the hearing by the Administrative Law Judge shortly after
you request a hearing. Even if you think you might later abandon your claim, you
should request a hearing immediately.

Do not wait until you get your Notice of Hearing to start preparing your case, because
you may receive the notice of hearing only a few days before the hearing is scheduled.


                                             3
     WHAT TO DO WHEN YOU RECEIVE A NOTICE OF DETERMINATION

A.      REQUEST A HEARING IN WRITING WITHIN 30 DAYS
        1. Send in a written request for a hearing as soon as you receive a notice of
           determination. Do Not Miss the Deadline! The DOL must receive and file
           the written request within the 30-day deadline.
        2. Your request letter should include: your full name, case number, social
           security number, and your current address, and should state that you disagree
           with the determination (see sample letter, p. 15).
        3. Keep a photocopy for your files in case your letter gets lost in the mail.
        4. If you require a Spanish or Mandarin/Cantonese Interpreter, include a request
           for the interpreter on your letter requesting the hearing. If you require
           translation for any other language, you can either bring someone with you to
           translate or the DOL will use a telephone service called Language Line to
           communicate with you during the hearing.

B.      PREPARE YOUR CASE
     1. Review your case file. Your case file contains statements from your employer as
        well as documents your employer may try to introduce at your hearing.
        Reviewing your file will help you understand what your employer might argue.
              a. Case files are located at Department of Labor, 9 Bond Street (between
                 Fulton and Livingston), Brooklyn, New York 11201. It is open
                 Monday-Friday, 8:45am - 4:45pm.
              b. You can copy up to 10 pages from your file. Copies are $0.25 cents per
                 page, but the DOL accepts only checks or money orders, not cash.
                 Bring a notepad and take notes about the pages you do not copy.
     2. Gather evidence to prove your eligibility. This may include pay stubs, bank
        statements, phone bills, warning letters, performance evaluations, arbitration
        decisions, collective bargaining agreements, employee handbooks or manuals,
        doctors' notes, and photographs.
     3. Speak to any relevant witnesses and ask if they will testify (either in person or
        on the phone).
     4. Outline the points you want to make at the hearing.
              a. Keep it simple and focus on the day or issue in question. If your
                 employer is alleging misconduct, focus on the date of the last alleged
                 instance of misconduct.
              b. Outline the sequence of events in chronological order. Make note of
                 important dates, like the dates of any relevant incidents (absences,
                 warnings, tardiness), the date you started working, the date you last
                 worked, and the date you filed for benefits.
     5. Research the law to help prepare your argument. The law is laid out in simple
        language and is broken down by major topic areas in the Unemployment
        Insurance Interpretation Index.
              a. If you have internet access, go to
                 http://www.labor.state.ny.us/ui/aso/interpservice.shtm
              b. If you do not have internet access, go to the DOL library at 9 Bond St.



                                            4
WHAT TO DO IF YOU ARE NOT READY ON THE DAY OF THE HEARING

   If possible, ask for an extension, or an "adjournment" ahead of time in writing or
   by calling the Administrative Law Judge Section. If the adjournment is not
   granted in advance, you must go to your hearing to request the adjournment in
   person. If you cannot go yourself, you may send a representative along with a
   signed letter explaining why you are unable to attend.

   At the hearing, you can ask for an adjournment in order to look for legal
   representation or gather evidence. The Administrative Law Judge may grant you
   an adjournment, but is more likely to hold you in "default." A default is when a
   party is unable to make a court appearance. If you are held in default, you may
   reopen your case, after you have had an opportunity to gather the evidence or
   meet with a legal representative, by sending in a written request asking for a new
   hearing date. (see sample letter, p. 16).

   If you do not attend the hearing, the Judge can hold the hearing without you and
   will decide your case without hearing your side of the story.

   If you miss a hearing for a good reason (for example, a medical emergency), you
   should request that your case be reopened. (see sample letter, p. 16).

   If the Administrative Law Judge turns down your request and you do not want to
   have to reopen the default, you can decide to go ahead at the hearing.




                                        5
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