Unemployment Insurance Handbook for Employers (UCB-201-P)
Section 3 - Appeals
PART 1A - Appeal Tribunal Hearings -
Benefit Eligibility Cases
A. Benefit Eligibility Cases
These cases involve a claimant’s eligibility for unemployment insurance benefits and not an employer’s tax liability or responsibility. A decision in one of these cases does NOT decide your UI tax status. It does not control what payroll and employees you must include in your quarterly contribution/wage reports. Tax status cases are covered in Part 1B.
There is a statutory presumption that a claimant is eligible for benefits, unless a specific disqualification applies.
Right to appeal
If there is an eligibility issue relating to an individual's claim for benefits, the department will mail the interested parties a determination. If you disagree with the determination, you have the right to appeal by making a written request for a hearing.
Filing an appeal
An appeal must be in writing. To appeal, you should write to the hearing office listed on the back of the determination stating that you are appealing the determination. Attach a copy of the determination or identify the determination by its nine-digit number located in the upper left-hand corner of the page. Include the claimant's name and social security number, as well as the name of your business and actual worksite address. Also include dates and times when you, your witnesses, and representatives, if any, are unavailable for a hearing. The hearing office will attempt to schedule around unavailable dates and times, though this is not guaranteed. Finally, indicate any special needs such as an interpreter or other accommodations needed due to disability. You, your agent, or your attorney should sign the appeal.
The party appealing the determination is called the appellant. The party responding to the appeal is called the respondent.
Deadline to appeal
The appeal must be postmarked or received within 14 days of the date on which the determination was issued. The deadline is printed in the lower right-hand corner of the determination. The appeal should be mailed, faxed, or delivered during regular office hours, to the hearing office listed on the back of the determination under WHERE TO FILE AN APPEAL.
An appeal that is received or postmarked after the deadline specified on the determination is considered a late appeal. If an Administrative Law Judge, or ALJ, determines that the appellant’s reasons for filing late, when construed most favorably to the appellant, do not constitute a reason beyond the appellant’s control, the ALJ may dismiss the appeal without a hearing and issue a decision accordingly. The determination will remain the final disposition of the case.
If the ALJ does not dismiss the appeal, the hearing office will schedule a hearing to take testimony about why the appeal was late. The ALJ will determine if the appeal was late for a reason beyond the appellant's control. Work or personal obligations, being out of town, or misreading or misunderstanding the determination generally are not considered to be reasons beyond an appellant's control and the ALJ will dismiss the appeal. The determination will remain the final disposition of the case.
If the appellant proves that the reason for the late appeal was beyond his/her/its control, the ALJ will proceed to the merits of the case or order that a later hearing be scheduled on the merits of the case.
Withdrawals of appeal
The appellant may withdraw the appeal at any time before an appeal tribunal decision is issued on the merits. A withdrawal may be by telephone or in writing to the hearing office listed on the hearing notice.
If an appeal is withdrawn, no hearing will be held unless the other party has also filed an appeal. In that case, the issue appealed by that other party will remain the subject of a hearing and an Appeal Tribunal Decision. If all appeals are withdrawn, the determination will remain in effect.
A party who wants to ensure that there will be a hearing in a case is advised to file his/her/its own appeal, even if the other party has also filed one.
When you file an appeal (or are notified that the claimant has filed an appeal), contact the hearing office immediately to notify it of scheduling conflicts in the coming month, such as a pre-planned trip, convention, medical appointment, court date, etc., for any intended witness or representative. The hearing office cannot promise any specific date and time, but it may be able to schedule around the conflict or arrange to take testimony of witnesses by telephone.
Do not wait until the hearing notice is received to notify the hearing office of scheduling conflicts. Also, keep in mind that parties are expected to make the necessary arrangements to attend the hearing, including taking time off from work or school.
Once the hearing has been scheduled, postponements are granted only for exceptional circumstances. A postponement must be requested as soon as the need for the postponement becomes known.
Notice of Hearing
A hearing will be scheduled by one of the four regional UI hearing offices. (Hearing office addresses and telephone numbers may be found in Appendix A of this section.) A hearing is usually scheduled within a few weeks after an appeal has been filed.
The hearing office mails parties a Hearing Notice at least 6 days in advance of the scheduled hearing. This notice contains important information you will need to know about the scheduled hearing, including:
- the date, time, and location of the hearing;
- whether the parties will appear in person or by telephone;
- the issue(s) that will be addressed at the hearing.
To see sample hearing notices, see Appendix B.
PLEASE READ BOTH SIDES OF THE HEARING NOTICE CAREFULLY. Make sure that you understand the specified issue(s) and prepare your case with the issue(s) in mind.
Decision made by hearing office
The hearing office may schedule one or both of the parties to attend a hearing by telephone. The hearing office will often schedule a telephone hearing when at least one of the parties is located 40 miles or more from the nearest hearing location. Telephone hearings may also be appropriate for some hearings involving only one party.
The parties may request in person or telephone participation, but the hearing office makes the final decision. To request a telephone hearing, the appellant should ask for one in the appeal. Alternatively, the respondent should request a telephone hearing immediately after receiving the Notice of Hearing.
Before you request a telephone hearing, you should consider that you must submit all your written evidence to the hearing office and send copies to your opposing party (employer or claimant) in advance of the hearing; and you will need suitable equipment, including a speakerphone or extensions if you have several witnesses.
As with “in person” hearings, the hearing office will mail you a notice of the date and time for a telephone hearing. The ALJ will call the telephone participants at the scheduled time. Telephone participants must provide a correct phone number in advance. The ALJ may conduct the hearing without a party or dismiss an appeal by a party who fails to provide a number or is unavailable when called.
If the hearing office schedules a telephone hearing:
- Arrange to take the ALJ’s call in a setting free from distractions, interruptions and noise.
- Have all persons on your side of the case at the same telephone number unless impractical. Make any request for the ALJ to connect additional participants at different telephone numbers at least three days before the hearing.
- If the ALJ’s call is more than 10 minutes late, call the hearing office immediately to learn if there is an unexpected problem or delay.
- If you decide to come in person instead of participating by telephone, tell the hearing office beforehand so that it can reserve a suitable room and the ALJ knows to expect you.
The hearing office will send copies of relevant documents in the hearing file to the parties before scheduling the phone hearing. If you want to submit other evidence, send it to the hearing office and to the other hearing participants in time for everyone to receive copies before the hearing. The ALJ may refuse to consider evidence that you did not send to all participants before the hearing.
All appeal levels above the hearing level use the record from the hearing (testimony and documents admitted) to make their decisions. As a result, it is IMPORTANT to bring and present all relevant information at the hearing. Because you may get only a few days’ notice that your hearing has been scheduled, it is very important to begin preparing the case right away. To attend a hearing to see what one is like, please contact the hearing office.
A party may choose to have an attorney or other representative assist at the hearing. If a party plans to have an attorney or representative at the hearing, the party must notify the hearing office as soon as possible of the name, address, and telephone number of the attorney or other representative. Include dates that the attorney or representative is unavailable for a hearing.
Preparing your case
Prior to the hearing, it is helpful to prepare notes of the facts involved in the case for reference during the hearing. Because notes are used only to refresh the memory of the note taker, individuals should not expect to read aloud from them as testimony, nor is it likely that any of these hearing preparation notes will be marked as exhibits by the ALJ. Each party should also write down questions for the other party and important points he or she wishes to make to the ALJ.
A party may review his/her/its UI Division file at the hearing office listed on the hearing notice. To make sure the file is available, please call the office in advance. A party may also receive a copy of the file through the mail. Please call the hearing office to request a copy.
Witnesses should consist of individuals who have actual personal knowledge of and were present to see and hear the events or facts to which they are testifying. An affidavit or written statement (even if notarized) cannot substitute for the personal appearance of a witness. Such a document is hearsay. The witness must appear for the hearing, testify under oath, and answer questions from the ALJ and the other party.
The ALJ cannot decide an issue solely on hearsay evidence, that is, evidence not within a witness’s own personal knowledge. (An exception is that an ALJ may make a decision as to whether the employer failed to provide complete and correct information to the department during the fact-finding investigation based on department records.)
Example: If you want to present evidence that a worker hit another worker, you should have either the worker who was hit or an eyewitness to the event testify. Both the worker who was hit and the eyewitness have personal, firsthand knowledge of what happened (“Joe hit me.” Or, “I saw Joe hit him.”), rather than secondhand knowledge or hearsay from a supervisor or other witness (“The worker told me the next day that Joe hit him.”). The ALJ will limit, or exclude, repetitious testimony. If several people witnessed a particular incident, you do not have to bring them all. Choose one or two with the best information.
The ALJ will not permit testimony from a witness that is not relevant or material to the issue(s) involved in the case. Relevant evidence is evidence that tends to make any important fact more probable than without the evidence.
If a witness seems reluctant to appear at the hearing voluntarily or if you wish to obtain specified documents, you may ask the hearing office to prepare a subpoena form for you. An attorney representing you may also issue a subpoena. A subpoena requires the witness to appear at the hearing or requires presentation of the requested documents at the hearing. You are responsible for serving the subpoena before the hearing and for providing the required witness fee and mileage payment to the witness. The hearing office will provide further information about serving the subpoena when giving you the form.
Additional witnesses who have knowledge of the case also may be called to testify, including department employees.
A party may wish to introduce documents or other materials such as payroll or attendance records, check stubs, letters, warnings, medical excuses, work rules, work schedules, reports, photographs, video or audio tapes, charts, objects, sample products, etc., to support a case. However, the ALJ may refuse to accept irrelevant evidence, that is, evidence that does not make an important fact more probable than without the evidence.
Photocopies may be submitted, but the original documents should be brought to the hearing to confirm the authenticity of the photocopies. Generally, the person responsible for creating or keeping the records should be present at the hearing to identify, authenticate, and testify about them.
If a video or audio recording is important to prove your case, you must supply the equipment to play the recorded material at the hearing and submit the recording(s) as part of the record while the appeal is pending (after which it/they may be returned to you). Notify the hearing office prior to the hearing that you plan to play a video or audio recording at the hearing, so that additional time for the hearing may be provided.
When the department needs to consider medical information in making a decision, it will send out a standard form UCB-474 Medical Report for completion by the claimant’s doctor. A copy of the completed form is generally provided to both parties before the hearing.
A certified report by a qualified expert is considered prima facie evidence, that is, evidence sufficient to establish the fact at issue unless contradicted and overcome by other evidence. Accordingly, if the doctor returns a properly completed UCB-474, then his or her presence at the hearing is not required. An employer may wish to subpoena the doctor or present an alternate certified report by a qualified expert (or perhaps subpoena a company doctor who examined the claimant) to rebut what the claimant’s doctor has said.
To see a sample UCB-474 form, see Appendix B.
Labor market evidence
In determining a claimant’s availability for work or ability to work, the department may request labor market information from labor market analysts employed by the state. Labor market analysts are sometimes called as witnesses at hearings. However, in most cases the labor market analysts are able to provide the necessary information on a standard form that can be considered evidence. This form, a Certified Expert Report on Labor Market Conditions, provided by Wisconsin’s Conditions of Employment Database, is called a COED report. In such cases, the labor market analyst need not appear at the hearing.
A copy of the completed COED report may be available for review before the hearing, if time allows. If the report was not available for viewing before the hearing and you want to rebut the form, you may ask the ALJ at the hearing to continue the hearing to a later date. This provides a party with the opportunity to present other expert testimony about the information in the labor market analyst’s report.
To see a sample of this COED report, see Appendix B.
Drug test evidence
In cases involving drug tests, the department may send out its own form for completion by the specimen collector and the drug testing laboratory. This certified report is considered prima facie (sufficient) evidence of the drug test result, that the result was valid, and that the drug test procedures met certain standards. A mere copy of the drug test report received from the lab is not sufficient evidence. If your case involves a drug test and you have not received the forms, please call the hearing office listed on the hearing notice immediately.
To see a sample of these drug collection and testing forms, see Appendix B.
Prior LIRC and court decisions
The LIRC website, http://dwd.wisconsin.gov/lirc, contains a digest, by topic, of recent LIRC decisions and court decisions.
These decisions can be quite helpful, but keep in mind that each case will be decided on its own unique set of facts.
ALJs may schedule prehearing conferences pursuant to DWD § 140.07. However, such conferences are scheduled in only the most complex cases. Following the conference, the ALJ will issue an order about such matters as stipulations of fact (both sides agreeing that certain facts are true), limitations on the number of witnesses, stipulations about evidentiary issues, and any other matters that might assist in the disposition of the appeal.
Having a hearing is like “starting from scratch,” as if the determination was never made. Parties present their cases before an Administrative Law Judge, or ALJ, who is an attorney. The ALJ conducts the hearing and makes sure that each side has the opportunity to present evidence and give testimony. The ALJ is responsible for controlling the hearing, making sure that the rules of evidence are followed, and protecting the due process rights of the parties.
Although the hearing is not a court trial, it is a formal proceeding. Hearings are open to the public, though it is very unusual for a person unrelated to your case to attend. To obtain a copy of the digital recording of your hearing, please call 608-266-3174. There is a $7.00 fee per compact disc.
Most of the hearing locations throughout the state are accessible to persons with physical disabilities. If certain accommodations are necessary to meet your physical needs, you should contact the hearing office immediately so that the appropriate arrangements can be made.
If you need an interpreter to properly participate in the hearing or present your case, you should immediately contact the hearing office. Interpreters for numerous languages are available, but the hearing office requires advance notice and will provide additional time for the hearing.
Persons who are deaf, hard of hearing, or speech-impaired and who use a TTY (text telephone) or PC (personal computer) to communicate can contact the hearing office by first calling the WI TRS (Wisconsin Telecommunications Relay System) at 1-800-947-3529.
Attending the hearing
Generally, both the claimant and the employer should attend the hearing. However, an employer is not required to attend if the issue in dispute was raised by the department, such as why the claimant failed to follow required filing procedures or did not accept a valid job offer from a different employer. Contact the hearing office listed on the hearing notice if you have a question about the need to attend.
You must report in person if you are scheduled to appear in person. If you are scheduled to appear by telephone, you must be available at the telephone number you provide to the hearing office. Follow the instructions on your hearing notice.
A record is made of the hearing by digital recording. As such, it is important to speak loudly and clearly, not to rustle papers, and not to interrupt, argue or talk at the same time as someone else.
While the ALJ will follow administrative procedural rules on burden of proof and cross-examination, and will limit the use of hearsay evidence, statutory and common law rules of evidence are not controlling.
The ALJ will introduce himself or herself, identify the persons in the hearing room, explain the procedures, summarize the determination issued by the department, define the issue(s) involved in the case, and ask both parties for brief statements about their contentions. The brief statement is not intended to include all the details of your case. Rather, it should provide a quick description of what you are claiming. Two examples are the following: “I believe the claimant quit” or “I discharged the claimant for misconduct.”
The ALJ will determine the order in which the parties and any witnesses testify, swear them in, and question them. The ALJ is responsible for getting all the information necessary to understand the facts of your case and to obtain a sufficient record of testimony and other evidence presented in order to make a decision.
The ALJ may exclude witnesses (that is, order witnesses to remain outside the hearing room) so that the witnesses are not influenced by the testimony of others. Similarly, the ALJ may limit or exclude the testimony of witnesses if the testimony is repetitive, irrelevant, immaterial, or based solely on hearsay.
In addition to presenting his/her/its own testimony, a party will be given a chance to ask questions of the other party and his/her/its witnesses (called cross-examination). Cross-examining a witness involves asking questions about that person's testimony or asking him or her to provide additional information important to your case. It may be helpful to bring a pen and paper to take notes during the testimony.
Cross examination does not involve providing your own testimony about what happened (you will get your own chance to do that). For example, the claimant's witness might testify that he worked with the claimant on the same shift and did not see the claimant smoking. You can cross examine the witness by asking questions such as, “Were you with the claimant during the entire shift?", but you cannot argue with him (for example, by saying, “The supervisor told me he was smoking on the shop floor”).
You (or your representative) may object to certain questions or to the admission of certain evidence. Before ruling on the objection, the ALJ may ask the other party to respond to the objection.
After both parties have had the chance to present their cases and question the other party’s witnesses, the ALJ will end the hearing.
Burden of proof
The party with the burden of proof, that is, the party who has the duty of affirmatively proving its case, depends on the issue or issues involved at the hearing.
For example, if an employer discharged a claimant, then it is up to the employer to prove that the claimant is ineligible for benefits because, for instance, he or she was fired for misconduct or substantial fault. It is the employer's burden to prove that the reason(s) for the discharge disqualify the employee from receiving benefits.
However, when a claimant quits a job, the general rule is that the claimant is ineligible for benefits. In this case, the claimant has the burden of proving that he or she is eligible for the payment of benefits because one of the statutory exceptions applies or because he or she has met the requalification requirements.
The vast majority of cases involve proof by a preponderance of the evidence. This means that whoever has the burden of proof must show that it is more probable than not that the claim that the party is making is true. For example, if an employer is trying to prove that an employee was discharged for misconduct, the employer must convince the ALJ that it is more probable than not that the claimant engaged in the misconduct for which he or she was discharged.
If the employer claims that the person engaged in some criminal behavior (such as theft), then it must provide clear and convincing evidence. This level of proof is higher than by a preponderance of the evidence but is not as high as “beyond a reasonable doubt.” It is a degree of proof that requires a firm belief or conviction in the mind of the ALJ that what the employer claims is correct.
Failure to appear at the hearing
If the appellant (whether claimant or employer) does not attend the hearing, then the appeal is dismissed. The determination remains in effect and becomes final (unless good cause for failing to appear is shown). The ALJ will wait 15 minutes before dismissing the appeal.
A respondent who does not attend the hearing gives up the chance to present evidence and testimony at the hearing (unless good cause for failing to appear is shown). The ALJ will wait five minutes before proceeding with the hearing without the respondent.
If a party fails to appear for a hearing but believes there was good cause for failing to appear, he/she/it may provide a written explanation of the reasons for not appearing. A party may submit the written explanation to the hearing office at any time before a decision is issued or within the 21-day appeal period after a decision is mailed. The ALJ will decide whether to schedule a hearing on the nonappearance issue only, or whether to schedule a hearing on the non-appearance issue and conditionally on the merits of the case.
A person’s illness, an accident, or unexpected circumstances that would prevent a person from being able to attend a hearing may be good cause. Forgetting about the hearing, writing the wrong date on your calendar, getting lost, or getting stuck in traffic generally are not considered to be good cause.
Appeal tribunal decision
After the hearing, the ALJ will review the testimony and the exhibits received at the hearing, decide how the unemployment insurance law applies to the facts, and issue a written decision. The ALJ's decision, also called an Appeal Tribunal Decision or ATD, will be based solely on the evidence presented at the hearing. The ALJ’s decision can change the ruling made in the determination.
Ordinarily, in a benefits case, parties should receive a copy of the ALJ’s decision within approximately two weeks of the hearing. If you have not received a benefits decision within three weeks, please contact the hearing office. This is important because, if the mail was misdirected, you could miss the deadline to appeal the ALJ’s decision.
Parties are sometimes confused when they get a decision because it looks like the ALJ got the facts wrong. However, this may occur because the parties presented two different versions of events (that is, contradictory evidence) at the hearing. Deciding which version of the facts is more credible can prove difficult. The ALJ does his/her best to determine credibility and make the appropriate findings of fact.
REMINDER: A decision in a benefit case does not decide your UI tax status.
Example: A benefit decision is issued stating that a claimant was an employee and not an independent contractor. That decision will not automatically decide that issue for the employer's UI tax purposes. The issue involved in the benefit case is not whether you are liable for UI taxes; it is whether the claimant is eligible for benefits.
The decision of the ALJ may be appealed to the Labor and Industry Review Commission (LIRC), and LIRC's decision may be appealed to the courts. For detailed information on these further appeals, see Parts 2 and 3.
Updated: January 3, 2014