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The Office of Administrative Hearings
Preparing for the Hearing
Presenting your Case
Other Questions about the Hearing Process
Once a decision made by the Employment Security Department (ESD) has been appealed, the matter must be decided by an independent and impartial party. The Office of Administrative Hearings (OAH) is an independent state agency that will decide whether you are eligible for unemployment benefits. Your case will be heard by an Administrative Law Judge (ALJ) who will send you a written decision after the hearing.
ALJs are experienced attorneys who hear appeals from decisions issued by a variety of state agencies involving administrative law. OAH will assign a knowledgeable and impartial ALJ to hear your case.
A hearing is a fact-finding process which gives all interested parties an opportunity to present their case. Most unemployment insurance hearings occur because there has been a job separation. The purpose of the hearing is usually to decide whether unemployment benefits should be paid.
Typically, the claimant (the unemployed person) and the employer attend the hearing. The claimant and the employer may also call witnesses. Sometimes, someone from ESD may appear to provide information about the case. The claimant and the employer may each choose to have someone represent them such as an attorney, family member or friend. Represented parties must still appear at the hearing to present testimony.
The parties present their information to the ALJ in the form of testimony and written documents. Testimony is your statement under oath about the facts of your case. For example, if the hearing is about why you are no longer employed, you and the employer will have an opportunity to tell the ALJ about the job separation. You will be sworn in as a witness before you give your testimony.
The hearing is your chance to present evidence and tell your side of the story. You should tell the ALJ all the information you want to be considered in your hearing. The ALJ will explain if the information is not necessary or helpful to resolving the case. (For important details, please be sure to review the “Presenting Your Case” section of this handout.)
The majority of hearings are held by telephone. However, in cases where a party or witness is hearing impaired, the hearing may be held in person. If you feel you need an in person hearing, you must tell the ALJ right away. The ALJ will review the request, factors surrounding the hearing and determine whether to grant the request for an in person hearing.
a. Types of telephone hearings
Be sure to follow the instructions in your hearing notice about how to participate in the hearing. Your hearing notice will tell you that you have been assigned one of the following:
b. Information about telephone hearings
Once you have phoned in for the hearing, you will participate in a conference call with the other parties and witnesses involved. You will hear their testimony, and they will hear you and your witnesses’ testimony.
You do not need to be in the same place as your witnesses during the hearing. Be sure to give your witnesses instructions on how to call in for the hearing.
Hearings held by telephone follow the same procedure and format as hearings which are held in person. The ALJ will develop a full and complete record of the hearing whether it is held by telephone or in person. The hearing record is composed of the audio recording of the hearing and the exhibits the ALJ admits into the record. If your hearing is scheduled by telephone, OAH will mail numbered copies of documents to you called exhibits. The ALJ may admit (include) some or all of these exhibits into the hearing record. It is important that you review the exhibits before the hearing and have them with you during the hearing.
c. Use of cell phones and pay phones for hearings: If you must use a cell phone, please be sure the battery is fully charged and that you have clear reception. If you must use a pay phone, make sure it can receive incoming calls prior to the hearing.
d. Use of phone from WorkSource office: If you do not have access to any telephone, you may arrange to use a telephone at your local WorkSource office. Please be sure to make the arrangements prior to the day of your hearing.
If your hearing is set in person, arrive at least 10 minutes before your hearing starts. Be sure to bring with you the hearing notice and any exhibits previously mailed to you.
In the event of inclement weather, major emergency or natural disaster, you should confirm that the OAH office is open. Please contact the OAH office listed on your hearing notice. You may also contact your local OAH office for information about office closures.
The ALJ will review the evidence the parties presented and issue a written decision. The ALJ will only consider evidence that is presented at the hearing; parties may not contact the ALJ once the hearing record has been closed to discuss the case or provide additional information.
To prepare for hearing, you may want to write down important facts about your case and have that information with you at the hearing. You may also want to view a hearing demonstration by going to www.oah.wa.gov. Select the “Hearing Preparation Video” button and click on the link “Video demonstration of an Unemployment Insurance hearing.”
OAH will mail a copy of the hearing file to the parties along with the Notice of Hearing. Parties will receive the hearing notice and numbered documents called exhibits. Parties should review the exhibits before the hearing and have them at the time of the hearing.
At the start of the hearing, the ALJ will explain the issues and describe what happens during the hearing. The ALJ will explain how the hearing will be conducted. The ALJ will swear in the witnesses, identify and admit the exhibits, and question the witnesses. Either side may raise an objection during the hearing. An objection lets the ALJ know you believe the other side is offering inappropriate or irrelevant evidence. The ALJ will rule on your objection.
After the ALJ has asked you questions, you will have an opportunity to add information to help the ALJ decide the case. You may also have witnesses appear at the hearing.
The ALJ will make an audio recording of the hearing.
A typical hearing lasts 45 minutes to one hour, but can be longer or shorter depending on the issues involved and the number of witnesses and documents presented. A typical hearing involving an interpreter lasts about twice as long.
After all the evidence is presented, the ALJ will close the hearing. Once the hearing has ended, please do not contact or call the ALJ to discuss the matter further.
Within a week to ten days of the hearing, the ALJ will mail a decision to the parties. The decision is called an Initial Order. The Initial Order affirms (upholds) the decision of ESD, sets aside (reverses) the decision of ESD, or modifies (changes in some way) the decision of ESD in an important way.
You must send all documents you want to be considered as exhibits to the ALJ and all other interested parties. The ALJ may not consider documents at the hearing that you have not provided to the other parties.
Documents must be sent before the date of the hearing to ensure parties have time to receive and review them to prepare for the hearing.
Any documents you provide for the hearing may be subject to the Public Records Act. This means that others may be able to see the information in your hearing file. If there is information in your documents that you want to keep confidential, it is your responsibility to remove that information before submitting the documents. You must delete information you do not want to be disclosed, such as social security numbers, driver's license numbers, names of minor children, birth dates, or bank account numbers.
The Employment Security Department uses social security numbers to identify claimants who have filed claims for unemployment benefits. You do not need to delete your social security number from documents sent to you by ESD.
OAH will mail a Notice of Hearing to you at least seven days before the hearing. The notice will tell you if the hearing is in person or by telephone. The notice will give the name of the ALJ, the date and time of the hearing, and the place of the hearing. The Notice of Hearing will tell you how to call (appear) for the hearing. The Notice of Hearing will also tell you the legal issues the ALJ will decide.
OAH encourages you to adjust your schedule so that you can keep your hearing date. Postponements are not routinely granted. Postponements delay the hearing, can be unfair to the other party, and take time to reschedule. If you have a conflict, please see whether you can reschedule the other matter before you ask for a postponement. OAH may grant a postponement if the request is made promptly and if there is good cause (good reason) to grant the request.
Before OAH can consider your request, you must speak directly with an ALJ or an ALJ's designee. To request a postponement, call the OAH office on your Notice of Hearing immediately. Be prepared to explain why you need a postponement. After listening to your explanation, OAH will grant or deny your request. If your hearing is postponed, OAH will not mail new copies of exhibits when your hearing is rescheduled. Keep the exhibits in a safe place for use at the next hearing.
If you have more than one hearing scheduled, you will receive multiple Notices of Hearing and exhibit packets from OAH. Each Notice of Hearing will have its own docket number. OAH will mail each hearing packet in a separate envelope. Although the documents in each envelope may look the same, and may even show the same hearing start time, it is important that you keep them separate and in the same order they came to you. This avoids confusion at the hearing when the ALJ reviews the documents with you.
If your address changes or needs correction at any time before you receive the ALJ's decision, immediately contact the OAH office listed on your Notice of Hearing. Notifying ESD is not enough; you must also notify OAH if your address changes.
A subpoena is an order by the ALJ directing a party to appear, or produce witnesses or documents at the hearing. If you would like to request witnesses or documents that are not available to you for your hearing, you may request a subpoena from the ALJ. Be prepared to tell the ALJ why the witnesses or documents are necessary and the name and address of the witnesses. You must also be able to identify the specific documents you need and the name and address of the person who has them. The ALJ will decide whether to grant or deny your subpoena request.
Since it takes time to process a subpoena, you must make the request as early as possible.
PRESENTING YOUR CASE
What follows is a brief summary of the law governing job separations and evidence at administrative hearings. It is not meant to substitute for the unemployment compensation statute, state regulations, the administrative procedure act, or individualized legal advice. You may read the full text of the unemployment compensation statute at www.legalwa.org or by visiting OAH at www.oah.wa.gov. Direct your attention to RCW Title 50, Title 192 WAC and RCW 34.05. You can use computers at your local WorkSource office or library to access the Internet for this information.
The legal issues the ALJ will address at the hearing are shown on the Notice of Hearing under the section called "Purpose of the Hearing.” The Notice of Hearing also identifies the laws and regulations that govern the legal issues in your case.
You can present evidence in the form of testimony, documents, and recordings. The ALJ will consider all the evidence presented during the hearing as long as it is relevant, reliable and important to the outcome of the case. The ALJ may exclude evidence that is irrelevant, unreliable, or should be excluded on constitutional or other legal grounds.
Firsthand (Eyewitness) Testimony: Generally, eyewitness testimony is the strongest evidence of a fact. Firsthand testimony is gained by actually seeing or hearing events as they occur. An eyewitness can describe what he or she actually saw and heard. And, she can answer questions from the other party, called cross-examination, that test his or her ability to perceive, remember, and communicate his or her story. Testimony from witnesses who did not see or hear the events they describe is called hearsay and is not as strong evidence.
Likewise, written statements from individuals who do not appear at the hearing are not strong evidence and are considered to be hearsay. The ALJ will give more consideration to testimony of witnesses who appear at the hearing over written statements because the ALJ (and the other party) may ask questions to test the witness’s knowledge and recollection of the facts.
Make arrangements for your witnesses to participate in the hearing. It is your responsibility to notify your witnesses of the date, time and place of the hearing so they can participate. Be sure to notify your witness how to call in prior to the hearing. Before you ask someone to be your witness, talk to them first. Generally, you should choose witnesses who have firsthand knowledge about the events.
If you decide you need witnesses to help explain your case, contact them as soon as possible. Be sure they are available at the time set for the hearing. Your witnesses may appear by telephone even if you are appearing in person. If a witness will simply repeat what you or others will say, or knows little about your case, the ALJ may choose not to allow the witness to testify. The ALJ may ask you to explain the testimony of your witnesses in order to determine whether to allow them to testify during the hearing (offer of proof).
Documents: OAH mails numbered copies of documents called "exhibits" to you along with the Notice of Hearing. You may need additional evidence in order to properly present your case. Additional evidence may include correspondence, time cards, medical reports, cell phone records, maps, charts, photos, etc. You may also submit video or audio recordings if they help explain the facts of your case.
Make sure you are able to explain who prepared the evidence, its purpose, and how it helps your case.
Submitting additional exhibits: If you have additional exhibits you want to use in the hearing, you must provide copies to the opposing party and the ALJ before the hearing. Their names and addresses are shown on the Notice of Hearing.
If you do not provide copies of your additional documents or evidence before the hearing, the ALJ may not consider your evidence, or may have to reschedule the hearing so that all parties have a chance to review the evidence.
Recordings: If you want the ALJ to consider an audio or video recording during the hearing, you must provide a copy of the recording to the opposing party and the ALJ before the hearing. It should be playable using Windows Media Player; if the ALJ cannot play the recording, it will not be considered. If the recording is admitted as evidence it becomes part of the permanent file and will not be returned to the party that provided it.
A claimant who is discharged or suspended for misconduct or gross misconduct is not eligible for unemployment benefits. The employer has the burden of proving at the hearing that the claimant was discharged or suspended for engaging in work-connected misconduct or gross misconduct.
Misconduct. “Misconduct” means conduct that harms or potentially harms the employer’s interest, including but limited to:
Willful or Wanton Disregard. Examples of “willful or wanton disregard” are: (1) insubordination, (2) repeated and inexcusable tardiness after warnings, (3) work-related dishonesty, (4) repeated and inexcusable absences, (5) deliberate provocation of violence, (6) deliberate violation of the collective bargaining agreement, (7) violation of reasonable employer rules, or (8) law violations within the scope of employment.
Gross misconduct means a criminal act for which the claimant has been convicted in criminal court, or has admitted committing, or conduct that demonstrates a flagrant and wanton disregard of the interests of the employer or a fellow employee.
The employer should be prepared to present a witness or witnesses with firsthand knowledge to explain how and when the claimant engaged in misconduct and how the employer's interests were harmed or potentially harmed by the claimant's actions.
The claimant should be prepared to explain why he or she did not act in willful disregard of, or harm the employer's interest. The claimant should also present any witnesses with firsthand information.
A claimant who quit work does not qualify for unemployment benefits unless the claimant quit for good cause. In a voluntary quit case, the claimant has the burden of showing he or she quit for “good cause.”
To show good cause, the claimant must show that the job separation was for one or more of the following reasons:
Where the claimant quit for medical reasons, safety hazards, or illegal activities, the claimant must also prove that he or she took reasonable steps to preserve his or her employment before quitting, unless it would have been futile to do so. See RCW 50.20.050(2).
The definition of “immediate family” has been changed to include domestic partners. See WAC 192-150-055(4). The rule is available online at http://www.leg.wa.gov/CodeReviser/Pages/default.aspx in the Washington Administrative Code.
Definition of “family member”
In determining whether corporate officers are related by blood or marriage, the term “family member” includes domestic partners. See WAC 192-310-190. The rule is available online at http://www.leg.wa.gov/CodeReviser/Pages/default.aspx in the Washington Administrative Code.
The claimant should be prepared to provide details, including witnesses with firsthand knowledge about what caused the claimant to quit and what efforts were taken to preserve the job before quitting, including notifying the employer in some cases.
The employer should be prepared to respond with information and witnesses with firsthand knowledge to explain why the claimant did not have good cause for quitting and/or how the claimant failed to take reasonable steps to preserve his or her employment prior to quitting.
Claimants who are required to search for work must prove that they are able to work, available for work, and are actively seeking suitable work during all weeks benefits are claimed. Claimants should be prepared to provide information such as the name and address of employers contacted, date(s), individual(s) contacted, outcome of the contact, etc.; you should also be prepared to report on job search activities such as employment workshops and training classes.
The ALJ may ask the claimant to submit a copy of his or her Job Search Log.
What are my job search requirements as a part-time worker?
“Part-time workers” are workers who worked more than 40 weeks in their base year, but never more than 17 hours per week. Part-time workers who actively seek part-time work will not be disqualified for limiting their search to part-time work.
If you have written evidence you want to use in the hearing, you must provide it to the ALJ and the other parties involved in the hearing before the date and time of the hearing. Before the hearing, make a list of the points you want to cover at the hearing. Write down questions that you want to ask witnesses. Be prepared to talk about specific incidents. Be prepared to answer the questions: who, what, where, why and when.
SPECIAL NEEDS AND CONSIDERATIONS
If you or any of your witnesses have special needs that must be accommodated to allow you to participate in the hearing, contact the OAH office on your Notice of Hearing immediately so arrangements can be made.
OAH conducts hearings and issues decisions in English. If your English is limited, or if you are hearing or speech impaired, contact the OAH office on your Notice of Hearing immediately to request an interpreter. You should also call if your witness has any of these limitations. An Interpreter Request Form is located at the end of this booklet. There is no charge to you for interpreter services. Families and friends can not serve as your interpreter in the hearing.
You may choose to have a lawyer or other representative help you with the hearing. The state cannot pay for your attorney or representative. Contact the OAH office on your Notice of Hearing for information about legal services that may be available to you. You may consult the following for legal assistance:
Unemployment Law Project – 1(888) 441-9178 or online at www.unemploymentlawproject.org
Washington State Bar Association – 1 (800) 945-9722 or online at www.wsba.org
CLEAR – 1 (888) 201-1014 or online at www.washingtonlawhelp.org
Your local county bar association - Consult your local yellow or white pages for the number
If you are going to retain a lawyer or representative, do so immediately after learning an appeal has been filed. Your lawyer must send a Notice of Appearance to the OAH office and all parties listed on the Notice of Hearing. This tells OAH that the lawyer will represent you at the hearing.
The Notice of Hearing will list the name and address of a party's representative or lawyer, if OAH has been notified.
OTHER QUESTIONS ABOUT THE HEARING PROCESS
If you are the party who requested a hearing and do not participate, OAH will issue a Default Order and dismiss your case. The ESD decision you appealed will remain in effect.
If you did not ask for the hearing, but you are one of the parties listed on the Notice of Hearing, OAH will hold the hearing even if you do not participate. However, if you wish for OAH to consider your point of view, the hearing is the only opportunity you have to present your evidence.
The ALJ will hear from those who appear for the hearing and make a decision based upon the available evidence. The ALJ may decide that the evidence in the file is not as persuasive as the sworn testimony provided at the hearing.
If you ask for a hearing, and then decide you do not want to pursue it, you can withdraw your appeal. If you decide to withdraw your appeal, contact the OAH office on your Notice of Hearing as soon as possible.
Give careful thought to your decision to withdraw your appeal as it is difficult to reinstate your appeal after it has been withdrawn.
In most cases, OAH will mail a decision to you within a week to ten days. The ALJ will write a decision containing findings of fact and conclusions of law. The decision will affirm (uphold) the decision of ESD, set aside (reverse) the decision of ESD, or modify (change in some way) ESD's decision.
If you still have unanswered questions after you have read this handout, call the OAH office listed on your Notice of Hearing.
If you would like more hearing information, visit our website at www.oah.wa.gov.
If a decision goes against you, you have the right to appeal by filing a Petition for Review with the Commissioner of the Employment Security Department. A Commissioner's Review Judge will review the ALJ's decision, the audio recording of the hearing and the exhibits. There will not be another hearing so it is important that you present all the relevant facts related to your case at the initial hearing.
You will have 30 days to file a Petition for Review from the date OAH mails the decision to you. The appeal deadline, as well as the instructions for filing a Petition for Review (why you disagree with the decision) are explained in the ALJ's decision under the section entitled "Petition for Review Rights."
The Petition for Review must be in writing. It must be postmarked and mailed to the Commissioner’s Review Office, Employment Security Department, PO Box 9555, Olympia, WA 98507-9555, and must include your docket number. Do not file your Petition for Review by facsimile (fax). Do not mail your petition to any location other than the Agency Records Center or your appeal may be dismissed. A Petition for Review does not need to be filed on an official form.
All argument in support of the Petition for Review must be attached to and submitted with the Petition for Review, and may not be more than five one-sided pages.
If you missed your hearing or are filing your Petition for Review after the 30-day filing period, you must explain why. Keep in mind that failing to file on time could mean your case will not be reviewed.
If you file a Petition for Review, the other party will receive a copy of the petition and may reply.
The Commissioner's Review Office does not hold new hearings. It reviews the evidence presented at the hearing conducted by the ALJ. The evidence consists of the recorded testimony given at the hearing and any written or physical evidence presented at the hearing.
The Commissioner's Review Office will also consider any written arguments you may want to present. Written argument is not required, but if you choose to submit argument, you must send it in with your Petition for Review. Your argument may not exceed five one-sided pages. The Commissioner's Review Office strictly enforces this requirement, and will return any pages in excess of five.
After reviewing the case, the Commissioner's Review Office will issue a decision to affirm, set aside, or modify the ALJ's Initial Order. It may also send your case back to OAH (remand) if it needs additional evidence to decide the case.
If you are a claimant and you are not working full time, file your weekly claims on your regular schedule. If you do not submit claims on time while waiting for your appeal hearing, the ALJ's decision or the Commissioner's decision on a Petition for Review, you may be denied payment for the weeks claimed late. Call ESD if you have difficulty filing your claims.
This notice is provided in accordance with Title II of the Americans with Disabilities Act of 1990, Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.
The Washington State Office of Administrative Hearings does not discriminate against any person in employment or in access to its facilities or services on the basis of disability, race, color, national origin, creed, sex, age, marital status or ability to speak English.
If you have a disability and desire accommodation by the Office of Administrative Hearings when using its facilities or services, please contact the OAH office listed on your Notice of Hearing.
If you feel that you or someone else has been treated unequally, or denied equal access to the Office of Administrative Hearings services or facilities, or if you desire additional information about accommodations for persons with disabilities, the Office of Administrative Hearings encourages you to contact its Americans with Disabilities Act Coordinator at the address/telephone number below:
Office of Administrative Hearings
Please note: The address and telephone number above is only for contacting the Americans with Disabilities Act Coordinator with questions or concerns about equal treatment and access to OAH services and facilities. All questions concerning the hearing process and other questions should be directed to the OAH office listed on your Notice of Hearing.
TTY (hearing impaired) users please dial through the Washington relay operator at 1-800-833-6388.
Check the boxes that apply to you.
1. My name is:_______________________________________________
2. My Social Security Number is: ________________________________
3. I need an interpreter.
4. [ ] I am hearing impaired.
5. My hearing is scheduled for: ____/___/____ (date) at:_______________ (time)
Please return this completed form to the OAH office listed on your Notice of Hearing.
The Office of Administrative Hearings website has information about the hearing process as well as access to legal resources (RCWs and WACs). Go to www.oah.wa.gov