It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
If you have been denied unemployment insurance benefits, you have the right to have that decision reviewed at a hearing. If you are an employer and have received a decision allowing benefits to one of your former employees, you also have the right to a hearing.
The hearing is your opportunity to present your side of the case. An Employment Department hearing is a fact-finding hearing. The hearing is conducted by an Administrative Law Judge (“ALJ”) who is an employee of the Office of Administrative Hearings. It is the ALJ’s job to review all the facts presented at the hearing and make a completely new, independent decision.
How do you request a hearing?
You can request a hearing by letter, by using an Employment Department hearing request form, or with the tear-off form that accompanies many administrative decisions. If you write a letter, the letter must say, “I request a hearing.”
A written hearing request can be filed in person, by mail or by fax with any Employment Department office, or with the Office of Administrative Hearings. A request for hearing must be personally delivered, if filed in person; postmarked, if mailed; or encoded, if faxed, on or before the deadline for filing a request stated in the administrative decision. If your request is late, you may lose your rights unless you can show that the delay was beyond your control. Also, if you are an employer, your request for hearing will not be granted unless you return certain Employment Department forms within the stated time limit.
When and where will the hearing be held?
After you ask for a hearing, the Office of Administrative Hearings will send you a Notice of Hearing. If the other party asks for a hearing, you also will be notified. The hearing notice will give you the time and place of the hearing and will state what issues will be decided at the hearing. You also may receive a pamphlet entitled “Your Employment Department Hearing.” The pamphlet contains detailed information about the hearing and how to prepare for it. Read the pamphlet carefully and contact the Office of Administrative Hearings if you have questions about it.
If you will need an interpreter or other accommodations, indicate this in your request for hearing, or notify the Office of Administrative Hearings immediately. If needed, an interpreter or other reasonable accommodation will be provided at no cost to you.
The Office of Administrative Hearings holds most hearings by telephone conference call. Follow the instructions on your notice of hearing to participate. For many hearings, you dial a local or toll-free number and enter a code to participate in a conference call. Sometimes the ALJ will call you at the time set for the hearing. Your hearing notice will tell you how to access the hearing. If the ALJ is to call you, be sure that you have no call-blocking features on your phone and keep the line open at the time set for the hearing. If you have not been called, or if you have been unable to connect to the conference call, so the hearing has not started 10 minutes after the scheduled time, call the Office of Administrative Hearings immediately at the number on your notice of hearing. If you delay, your request for hearing may be dismissed.
If you cannot attend the hearing on the date scheduled, you may request a postponement by calling the Office of Administrative Hearings. A postponement will be granted only for the most serious reasons. If the hearing is not rescheduled and you do not appear, your request for hearing may be dismissed. If you were not the one who requested the hearing, it is still important that you attend. If you do not participate in the hearing you probably will not get another chance to tell your side of the story, and, if the original administrative decision was in your favor, it may be reversed.
How to prepare for the hearing, and what type of evidence should you present?
Preparation is important because you may not get another chance to present evidence or testify. Although further appeals may be available, these appeals are generally based upon the evidence introduced at the hearing. The hearing is your chance to tell your side of the story.
The first thing to do in preparing for a hearing is to become familiar with the issue to be decided at the hearing. The issue is listed on the Notice of Hearing. Most hearings deal with one of the following issues:
- whether a claimant had good cause to quit work;
- whether the claimant was fired for misconduct; or
- whether a claimant is able to work, is available for work, and is actively seeking work.
For more information on these and other issues, you may wish to read Unemployment Insurance Compensation.
If documents are mailed to you with the notice of hearing, all parties and the ALJ will have them. Any additional written material that you want the ALJ to consider must be provided to the ALJ and to all other parties before the hearing. As soon as you receive the notice of hearing, send copies of documents to the ALJ and the parties at the addresses on the notice of hearing. You may ask the Employment Department for copies of your file, and you may ask the employer for copies of your relevant personnel documents. The Employment Department file may contain documents relevant to the issue considered at the hearing, such as statements made by the claimant and employer to the Employment Department. The Employment Department will provide copies at no cost to you. Under Oregon law an employer must, under certain circumstances and at the request of the employee, provide an employee with a reasonable opportunity to inspect certain personnel records and provide copies, at a reasonable charge.
If you believe documents in the employer’s or someone else’s possession would be critical to your case, and if you have been unable to obtain them after reasonable attempts, you may request a subpoena for documents. If a witness refuses to testify, you may request a subpoena for his or her testimony. Call the Office of Administrative Hearings immediately to ask for a subpoena. You will have to explain what evidence you expect to obtain and why it is important. If a subpoena is approved, itwill be sent to you and you will have to serve it. You should interview your witnesses before the hearing to make sure their testimony supports your case.
What happens at a hearing?
The ALJ in the case will begin by discussing the issues involved and then will take testimony. Each side will have an opportunity to tell his or her side of the story and present witnesses. After each witness has told his or her side of the story, the other side will have a chance to ask questions. The ALJ also will ask questions. After both sides have presented their case and there is nothing more to add, the judge will end the hearing.
What happens after the hearing?
The ALJ will not make a decision at the hearing but will issue a written decision within a week or two after the hearing. It is then possible to appeal the decision. How to appeal is described in the materials sent with the decision.
Legal editor: Janay Haas, July 2009