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En Español - Favor de leer con cuidado el folleto "Cómo preparar y presentar su caso." Hágase clic aquí para obtenerlo en español (requiere el programa gratis Adobe Acrobat Reader, v.4.0 or above). Click on a question below to link to the answer. I. The Office of Administrative Hearings II. Preparing for the Hearings III. Presenting your Case IV. Special Needs and Considerations V. Other Questions about the Hearing Process VI. Notice of Nondiscrimination and Equal Access Policy VII. Request for Interpreter Form I. THE OFFICE OF ADMINISTRATIVE HEARINGS What is the Office of Administrative Hearings? The Office of Administrative Hearings ("OAH") is an independent state agency that will hear your unemployment insurance appeal. OAH employs Administrative Law Judges ("ALJs") who are attorneys. These ALJs hear appeals from decisions issued by a variety of state agencies. OAH will assign a knowledgeable and impartial ALJ to hear your case. The ALJ is not an employee of the Employment Security Department ("the Department"). Mission Statement A hearing is a fact-finding process. The ALJ may conduct the hearing by telephone or in person. Usually the purpose of the hearing is to decide whether unemployment benefits should be paid. In a hearing, the people involved in the matter, usually the claimant, the employer, witnesses, and sometimes a representative or witness from the Department, give information about the case. Most of the information is given by testimony. All testimony must be given under oath. The ALJ determines the facts of the case, issues a written decision, and ensures that all parties get a fair hearing. Although parties have a right to appeal the ALJ's decision, the hearing is the only chance the parties will have to present their evidence and to explain their side of the story. If you want your point of view to be considered, you must participate in the hearing. Telephone Hearings: If your hearing is scheduled by telephone, OAH will mail numbered copies of documents to you. These are called exhibits. The ALJ may admit some or all of these exhibits into the hearing record. The hearing record is composed of the audio recording of the hearing and the exhibits the ALJ admits into the record. It is important that you review these exhibits before the hearing and have them with you at the hearing. If you have witnesses, they do not have to be physically with you at the time of hearing. The ALJ can call them at the telephone number most convenient for them. The ALJ can connect witnesses to the conference call so that the parties can ask questions of the witnesses. Use of Cell Phones: OAH discourages participation from cell phones and pay phones because of technical problems that might arise. 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, be sure to confirm it can receive incoming calls prior to the hearing. If you do not have access to a telephone, you may arrange to use a telephone at your local WorkSource Center. If you are unable to arrange to participate by telephone, contact the OAH office listed on your Notice of Hearing. Call Blocking Feature: If there is a call blocking feature on your telephone, please disable this feature before the hearing so the ALJ can contact you. Please remain by your telephone after calling in as the ALJ will attempt to start the hearing close to the scheduled hearing time. If you receive unexpected calls, tell the person you must keep the line clear for your hearing. In-Person Hearings: If you believe it is necessary for you to have a telephone hearing and your hearing was scheduled in-person, immediately contact the OAH office on your Notice of Hearing. After considering your reasons, OAH will either grant or deny your request. May I look at the hearing file before the hearing? OAH will mail a copy of the hearing file to the parties with the Notice of Hearing. OAH will number the documents as exhibits. Parties should review the exhibits before the hearing and have them at the time of the hearing. OAH will make an audio recording of the hearing. To prove your case, you may testify and present testimony from other witnesses. You may also offer documents and other physical evidence. At the start of the hearing, the ALJ will explain the issues and describe what will happen during the hearing. The ALJ will swear in all witnesses, identify and admit or exclude exhibits, and rule on any objections raised. An objection lets the ALJ know you believe the opposing party is offering inappropriate or unnecessary evidence. The ALJ will rule on your objection. Each party will have an opportunity to present testimony, ask questions of witnesses, and respond to the witness testimony given. A typical hearing lasts one hour, but can be longer or shorter depending on the issues involved and the number of witnesses and documents presented. After all the evidence has been presented, the ALJ will close the hearing. After the hearing is over you should not call the ALJ to discuss the matter any further. Within two weeks of the hearing, the ALJ will mail a decision to the parties. The decision is called an Initial Order. The Initial Order will affirm (uphold) the decision of the Department, set aside (reverse) the decision of the Department, or modify (change) the decision of the Department in an important way. Who can see my documents? (Public Records Act) Any documents that you send to the ALJ must also be sent to the opposing party. Documents must be sent in advance of the hearing so that the parties may 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 you want to keep confidential, it is your responsibility to remove such information prior to submitting the documents to the ALJ. 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 individuals who have filed claims for unemployment benefits. Do not redact the Claimant's social security number from documents submitted for hearing. If you would like to learn more about the Public Records Act, refer to RCW 42.56 and WAC 10-04. How will I know when my hearing is scheduled? At least seven days before the hearing, a Notice of Hearing will be mailed to you. 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 also tell you the legal issues the ALJ will decide. Can I get a new date for the hearing? If you cannot attend the hearing as scheduled, you may request 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. Postponements are not routinely granted. Postponements delay the hearing, can be unfair to the other party, and can take some time to reschedule. 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. What if I have more than one hearing? If you have more than one hearing scheduled, you will receive multiple Notices of Hearing and exhibits from OAH. Each Notice of Hearing will have its own docket number. Each hearing packet will be mailed to you 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 separated and in the order in which they came to you. This will avoid confusion at the hearing when the ALJ reviews the documents with you. What if address changes before the hearing? If your address changes or needs correction before the hearing, or before you receive the ALJ's decision, contact the OAH office listed on your Notice of Hearing. How do I request a subpoena? If you would like to request witnesses or documents that are not available to you, you may request a subpoena from the ALJ. A subpoena is an order by the ALJ directing a party to produce witnesses or documents. Be prepared to tell the ALJ why the witnesses and/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 and serve a subpoena, you must make the request as early as possible.
III. 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. Direct your attention to RCW Title 50 and RCW 34.05. You can use computers at your local WorkSource Center or library to access the Internet. 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. What evidence should I present at the hearing? You can present evidence in the form of testimony, documents, and recordings. The ALJ will generally consider evidence if it is relevant and reliable. The ALJ may exclude evidence that is irrelevant, unreliable, or excludable on constitutional or statutory grounds. First-Hand Testimony: The ALJ will give more consideration to testimony of witnesses with firsthand knowledge than written statements of witnesses or witnesses with second-hand knowledge. Firsthand knowledge is the type of knowledge gained by actually seeing or hearing events as they occurred. The ALJ may not consider the written statements of witnesses who do not attend the hearing. Do not assume that any witness with information about your case will be at the hearing. It is your responsibility to make arrangements for their participation. Before you ask witnesses to appear at the hearing, talk to them first. Generally, you should choose witnesses who have firsthand knowledge. If a witness will simply repeat what you or others will say, or knows little about your case, the ALJ may not allow the witness to testify. If you decide you need witnesses to help you 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. Documents: OAH will mail numbered copies of documents called "exhibits" to you with the Notice of Hearing. You may need additional written evidence to properly present your case. Written 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 written evidence, its purpose, and how it helps your case. To Submit 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 fail to provide copies of your written evidence before the hearing, the ALJ may decide to 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. If the recording is admitted as evidence it will become part of the permanent file and will not be returned to the party that offered it.
How do I present my case at a discharge hearing? A claimant who is discharged or suspended for misconduct or gross misconduct is ineligible 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. What is Misconduct? (1) willful or wanton disregard of the interests of the employer or a coworker; Examples of willful or wanton disregard of the interests of the employer or a coworker are: insubordination; repeated and inexcusable tardiness after warnings; dishonesty related to employment; repeated and inexcusable absences; deliberate and illegal acts that provoke violence, or a violation of the law or a collective bargaining agreement; violation of reasonable company rules; and violations of law while acting within the scope of employment. At the hearing, 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. What is Gross Misconduct? How do I present my case at a voluntary quit hearing? (1) the acceptance of other work; 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 claimant should be prepared to provide details, including witnesses with firsthand knowledge about what caused him or her 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 witness(es) 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. How do I present my case when job search/availability for work is an issue? Claimants who are required by the Department to register for work must prove that they are able to work, available for work, and actively seeking suitable work during all weeks claimed. Claimants should be prepared to demonstrate their employer contacts and 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 tips can help me in the hearing? 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 present the details about specific incidents. Be prepared to answer the questions: who, what, where, why and when. Decide if you need witnesses. Talk to your witnesses as soon as possible to be sure they will be available to testify and that their testimony will add to your case. If you want to be represented by an attorney or lay representative, take steps to retain a representative immediately upon learning that an appeal has been filed. Testify only when it is your turn. Do not interrupt unless you have an evidentiary objection to make. An evidentiary objection lets the ALJ know that you believe the opposing party is offering inappropriate or unnecessary evidence. The ALJ will rule on your objection. Testify to what you know. Do not guess. If you do not know the answer to a question, say that you do not know. Avoid simply repeating what has already been said. During cross-examination, make your questions short and to the point. Ask only one question at a time. Present only evidence that is necessary to your case. Do not argue or get angry during the hearing. You will do a much better job of presenting your case if you stay calm. If you are not sure what to do during the hearing, ask the ALJ.
IV. SPECIAL NEEDS AND CONSIDERATIONS If you or any of your witnesses have special needs that must be accommodated to permit hearing participation, contact the OAH office on your Notice of Hearing immediately so arrangements can be made. What if I need an interpreter? 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. If you are going to retain a lawyer or representative, do so immediately. 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.
V. OTHER QUESTIONS ABOUT THE HEARING PROCESS What if I do not participate in the hearing? If you are the party who requested a hearing and fail to participate, your case will be dismissed. The Department 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, the hearing will be held even if you do not participate. However, if you wish your point of view to be considered, the hearing is the only opportunity you have to present your evidence. The ALJ will hear from those present and make a decision based upon the available evidence. The ALJ may decide that the evidence in the file is not as persuasive as sworn testimony provided at the hearing. What if I change my mind about wanting a 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, please contact the OAH office on your Notice of Hearing as soon as possible. Consider this request carefully as it is difficult to reinstate your appeal after you withdraw it.
In most cases, OAH will mail a decision to you within two weeks. The ALJ will write a decision containing findings of fact and conclusions of law. The decision will affirm (uphold ) the decision of the Department, set aside (reverse) the decision of the Department, or modify (change) the Department's decision. Where do I call if I have questions? If you have questions which remain unanswered after you have read this booklet, call the telephone number of the OAH office on your Notice of Hearing. Click here to access the OAH Office Directory. What if I want more hearing information? If you would like more hearing information, visit our website at: www.oah.wa.gov. What if I disagree with the ALJ's decision? 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 only the ALJ's decision, the hearing tape, and the exhibits. There will not be another hearing. You have 30 days to file a Petition for Review after the date OAH mails the decision to you. The instructions for filing a Petition for Review are set forth 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 Agency Records Center, PO Box 9046, Olympia, WA 98507-9046, 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 need not 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 exceed five pages. If you missed your hearing or are filing your Petition for Review after the 30-day filing period, 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.
SPECIAL INSTRUCTIONS FOR CLAIMANTS DURING THE APPEAL PROCESS: What does the Commissioner's Review Office do? The Commissioner's Review Office does not hold new hearings. It reviews only the evidence presented at hearings conducted by the ALJ. The evidence consists of tape 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 pages. The Commissioner's Review Office strictly enforces this requirement, and will return any pages over 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 there is insufficient evidence to make a decision.
VI. OFFICE OF ADMINISTRATIVE HEARINGS NOTICE OF NONDISCRIMINATION AND EQUAL ACCESS POLICY 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 PO Box 42488 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.
VII. REQUEST FOR INTERPRETER FORM [click here for .pdf version][click here for .rtf version] Check the boxes that apply to you. 1. My name is:_______________________________________________ 2. My Social Security Number is: ________________________________ 3. I need an interpreter. The language I speak best is:__________________________ 4. [ ] I am hearing impaired. [ ] I will participate by TTY operator. 5. My hearing is scheduled for: ____/___/____ at:___________________ with:_________________________________________________ Please return this completed form to the OAH office listed on your Notice of Hearing. Title 50 RCW (statute governing Employment Security Department hearings) Employment Security Department web page Washington Law Help has a website with many useful pamphlets. Look under the Employment law section. The OAH Legal Research page, which includes information about doing legal research on line. |
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