The following will give you information on the process for appeals involving the Unemployment Insurance program. These appeals generally begin with a review of a determination made by department staff. Most appeals involve a question of eligibility pertaining to a claim for benefits by an unemployment claimant. In other cases, department staff make determinations affecting an employer's liability to pay unemployment taxes, either as a new or successor employer, and/or the requirement to furnish unemployment coverage to an individual or individuals the employer may have considered to be "independent contractors". While it is important to respond to initial requests for information made by this department, so as to help ensure that the initial determination is correct, the program provides additional protection to both employers and claimants through the appeal process.
Participating in the Appeals Process
Participation in the appeals process is the best way to ensure that your interests are protected.
Administrative law judges make decisions based on the information that is presented during the hearing. If only one party participates the law judge will likely have no option but to rule in favor of the party that participates.
What are the Steps in the Appeal Process?
There are three levels or steps in the appeal process in Vermont. The appeal process in this state is as follows:
1. Appeal to an administrative law judge
2. Appeal to the Employment Security Board
3. Appeal to Vermont Supreme Court
There are specific time limits in order to be considered timely for the filing of an appeal in each of the above steps. The time limits are outlined in writing at the end of the determination or decision.
The Hearing Before the Administrative Law Judge
The first and most important step is a hearing before an administrative law judge. This is the only step in which you can submit evidence, so it is very important to both participate and provide all your evidence at this step. If the issue under appeal is a separation from work, the refusal of an offer of suitable work, or some matter involving an employer’s liability as an employer under the unemployment statute, you should definitely participate in the hearing. Despite the fact that you may have submitted documents and have spoken to staff of this department, the appeal hearing will be your only opportunity to present sworn testimony and introduce documents as exhibits.
Your failure to participate in the hearing will more likely than not cause you to lose. Even if the determination being appealed was in your favor, if you do not participate, the decision could be changed because the administrative law judge will not have your direct testimony to consider.
Do You Need a Lawyer?
Hearings are designed to permit laypersons to represent himself or herself or another party. If the issues are complex, the other party has an attorney, or you think you may have difficulty presenting your case, you may wish to consult an attorney. If you intend to have an attorney represent you in the hearing, the attorney should file a notice of appearance letter with the appeals office. You should also contact the appeals office as soon as you are aware that you will have an attorney to avoid scheduling delays.
Limited English Proficiency (LEP) and Sign Language Interpreters
If any party needs language translation assistance or a sign language interpreter, notify the appeals office immediately. The department uses a telephone based language interpretation service for non-English speaking parties. If a sign language interpreter is needed the department will make arrangements for the interpreter to participate with either party (or both) at one of the Career Resource Centers.
Americans with Disabilities Act
This department complies with the Americans with Disability Act. Should you require special assistance due to a disability as defined in the Act in order to pursue your rights, please contact the appeals office as soon as possible.
Notice of Hearing
The Notice of Hearing will provide you with important information about the time and date of the appeal hearing, which will be conducted by a telephone conference. Try to have all witnesses available at ONE location. Mail or FAX (802-828-4289) any documents you want to have considered as evidence in the hearing to the appeals office. Do this immediately following receipt of the Notice of hearing so the documents are received prior to the hearing. Remember that hearings before an administrative law judge are all done by phone, so there is no way to provide a copy to the other parties during the hearing. If you do not send a copy to all parties, your exhibits will NOT be entered into the record, will not be considered in making the decision and will not be useful later in the appeal process. If you are an employer appealing your liability or some other issue related to unemployment insurance taxes, the appeals office will provide a copy to the department staff prior to the hearing.
Evaluate and Prepare Your Evidence
The first level of appeal is a de novo review, which means that the administrative law judge reviews the case as if no prior decision had been made. The administrative law judge is not bound by earlier findings or determinations made by the department. Since this will be your only opportunity to present your evidence, and further appeals only review testimony and other evidence introduced at this hearing, you should be ready to submit your side of the story.
Which Party Has the Burden of Proof?
Having the burden of proof generally means that unless the party, which owns the burden, can demonstrate on a factual basis that certain events happened, or in some cases, did not happen, the decision will be made contrary to the interests of the party, which owns the burden. If you have the burden of proof, and for any reason fail to present evidence to support the decision made, you are likely to lose the appeal. Unlike proceedings in a criminal case, the standard of proof is not "beyond a reasonable doubt"; rather, the standard of proof is "preponderance of credible evidence", which is the lower civil case standard.
Further information on who has the burden of proof is available for your convenience.
What Goes on at the Hearing Before the Administrative Law Judge?
Testimony is taken under oath and tape recorded. The appeal is heard by an administrative law judge. The administrative law judge will try to bring out the important and relevant facts in the case through questioning of the parties. The Law Judge will first determine which records, if any, will be made part of the record. Depending on which party has the burden, that party will go first in presenting its side of the dispute, including presenting witnesses, if any. Next, the other side is given an opportunity to present its side of the dispute, including presenting witnesses, if any. Following that, both parties, in turn, will be given the opportunity to ask relevant questions of the other. Relevant information is information that bears directly on the issues that are being considered, including the credibility of witnesses and parties. While these proceedings are administrative in nature, and do not follow the same rules as one would find in a court of law, fairness and efficiency may require the administrative law judge to rule evidence and testimony out of order.
Prepare in advance. Make a list of your key points. Be prepared to address all issues raised in the determination under appeal. Stay calm. Do not be defensive or aggressive. You are at the hearing to present facts and to bring into question those facts presented by the other party. Your actions and conduct will be important factors in the administrative law judge's assessment of credibility of your testimony.
Make written notes of anything the other party says with which you disagree. This will help you to answer important points made by the other party or help you question the other party when it is your turn to speak. Your notes can be used to refresh your memory of certain events, but you should take care that you not read these notes word for word. Notes read into the record are hearsay evidence. It is generally more credible to testify from your own recollections as refreshed by the notes. Hearsay testimony is admissible evidence, but may be less believable or creditable.
Did You Personally Observe the Incident?
One of the biggest mistakes made in presenting cases to the administrative law judge is a party presenting second hand or hearsay testimony as to the events that occurred. You should make sure that first hand witnesses is prepared to testimony in the hearing.
The Importance of Witnesses & Subpoenas
Contact the appeals office if you wish to have a witness subpoenaed. The administrative law judge will determine whether a subpoena is necessary and if the testimony is relevant to the issues under appeal. It is extremely important to have relevant witnesses available. Interview your witnesses before the hearing so you know how useful they will be to your case. In the event you are unable to have a witness or witnesses participate, your next best option is to obtain a sworn (notarized) written statement from the witness or witnesses. While a sworn (notarized) statement carries more evidentiary weight than an unsworn statement, it is important for you to understand that statements, in general, are less persuasive and have less evidentiary weight than the credible direct testimony of witnesses at the hearing.
Once the hearing is concluded, the administrative law judge will issue a written decision, which will be sent to all parties that participated in the hearing.
Contacts with the Administrative Law Judge Outside of the Hearing
The administrative law judge generally will have no contact with you or any party outside of the hearing. This is to avoid the appearance of unfairness or of accepting evidence outside the hearing. Other members of the appeals office will advise or assist you with procedural questions. In the State of Vermont, Appeal Hearings are CONFIDENTIAL and are not open to the public.
Postponement of a Hearing
You should make every attempt to participate in the Appeal Hearing when scheduled. Either party may request a postponement but the postponement must be for good cause. The administrative law judge who makes the decision on a case-by-case basis determines good cause. If you wish to have a postponement, you should immediately call the Appeals office to request one.
Withdrawal of an Appeal
If you wish to withdraw your appeal, you should do so in writing. You should notify the Appeals office as soon as possible prior to the date of the hearing. If the claimant has filed the appeal, you cannot withdraw the appeal and the hearing will take place. If the appeal is withdrawn, the initial determination or decision becomes final and cannot be changed.
Appeals to the Employment Security Board
If you do not prevail with the administrative law judge, you can file an appeal to the Employment Security Board. This Board generally reviews only the record created by the administrative law judge and they do not take new testimony. The Employment Security Board will schedule a hearing, which is conducted in person in Montpelier only, and will review the transcript of the hearing before the administrative law judge as well as all documents that are entered into the record before the administrative law judge. The Employment Security Board can sustain, modify or reverse the decision of the administrative law judge or in some cases will remand the case for further hearings. Being unavailable for the hearing before the administrative law judge is not considered "good cause" to remand a case back to the administrative law judge. The Board will make its decision and issue a written decision.
Appeals to the Supreme Court
The last step in the appeals process is to file an appeal with the Vermont Supreme Court. The Court may ask the parties to file a legal brief in support of their position, and may schedule oral arguments before the bench. You should probably consult with an attorney before proceeding to the Supreme Court, although there is no Court requirement to be represented by an attorney. The Court will only review the record that was reviewed by the Employment Security Board. While the Court will generally defer to the judgment of the Employment Security Board, it can also reverse the decision of the Employment Security Board or remand a case for further hearing.