Unemployment Insurance Hearing FAQs

No, the hearing office only deals with appeals to determinations.

You can view and manage your unemployment claim information online. For help using online services or if you are unable to go online call (414) 435-7069 or toll-free (844) 910-3661 during business hours.

Check your hearing notice to make sure you know how you are to participate in the hearing.

See Hearing Office contact information for related information.

A claimant does not get to choose who they are claiming benefits from.

When a claim is filed, many issues may affect the claimant’s eligibility and must be investigated when they arise. Additionally, which employers are charged for UI benefits and how much they are charged is dependent on the issue involved, the number of other employers in the claimant’s base period and the claimant’s base period wages.

So for example, let’s say you worked 10 years for XYZ Corporation and were laid off of work three months ago. XYZ Corp. is not disputing your eligibility for benefits based upon your separation of employment with them.

After the layoff, you started working for ABC Corporation. ABC discharged you and you filed a claim for benefits. At the time you filed the claim, ABC is not in your base period and would not be charged for any current benefits.

However, if your discharge from ABC was for misconduct, you would not be eligible for unemployment insurance benefits until seven weeks after your discharge and until you earned 14 times your weekly benefit rate in subsequent covered wages.

Further, if your discharge was determined to be for misconduct, ABC Corp. would not be charged in the future if you requalified for benefits and filed again at a later time when ABC Corp. fell within a future base period.

An ALJ is an administrative law judge.

Appeal tribunals for the Unemployment Insurance Division are attorneys licensed to practice law in Wisconsin. They are salaried state employees whose primary responsibilities involve holding unemployment insurance hearings and issuing appeal tribunal decisions.

This decision is up to you. It is the appeal tribunal’s responsibility to develop the record of the hearing and he or she will question the witnesses.

The factors you may want to consider in deciding whether to engage a representative or attorney include the complexity of the case, number of witnesses, and costs. In tax appeal hearings, that the department will be represented by an attorney.

Representation by an attorney or agent is not a requirement at administrative hearings conducted by the department. Many parties represent themselves at hearings.

• The department will not provide or arrange for legal representation of the parties at a hearing.
• No attorney or agent may charge a claimant more than ten percent (10%) of the benefits at issue in the administrative proceeding without prior approval by the department.
• No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at a hearing.

If you choose to be represented by an attorney, please ask him or her to notify the hearing office as soon as possible. Note that the hearing office will not allow your representative to examine your case file prior to the hearing unless it receives a written letter of representation ("retainer letter").

Yes. An attorney employed by the department is assigned when a tax case is appealed. The hearing notice in a tax case will specify the name, address and telephone number of the assigned attorney.

After the issuance of the hearing notice, any questions about the case should be addressed to the assigned attorney.

Prior to the taking of any testimony under oath, each party’s representative will be asked a few brief questions in the form of a position statement to help the appeal tribunal determine the issues in dispute and the burden of proof.

The representative has the right to question any witnesses and has the right to object to items being received into evidence.

The representative would also be expected to know what that party’s witnesses would testify about. In particular, the representative may be asked to provide an explanation of how the witness' testimony is relevant to the case. This offer of proof will then be used by the appeal tribunal in determining whether that witness’ testimony will be taken.

A representative may or may not be allowed to make a closing statement.

Yes. A decision will be issued based solely upon the record developed at the hearing.

Documents contained in the hearing file as part of the determination (for example, interview statements, documents sent to the adjudicator by the parties) will not be used unless they are marked as exhibits during the hearing.

If you are the appellant and do not appear, your appeal will be dismissed and the determination will become final. If you are the respondent, the hearing will proceed without you and a decision will be issued based solely upon the appellant’s testimony and any exhibits received into evidence.

No. Ex parte (or one-party) contact with the appeal tribunal is not permitted. The appeal tribunal cannot discuss the merits of your case with you when the other party is not present.

No. An appeal hearing is a more formal process than the earlier interview, testimony is under oath and rules of evidence apply during the hearing. The hearing is recorded, so that a record of the entire hearing may be preserved.

The hearing will be your only opportunity to present documents and testimony as evidence in this case. Any future review of this case is based upon the record made at this hearing.

Individuals with firsthand knowledge of the events or circumstances should attend.

The party with the burden of proof has the obligation to prove their assertion with credible evidence.

The party with the burden of proof with respect to a particular issue usually testifies first, giving the other party the opportunity to respond to material that party presents.

For instance, in cases where the parties disagree with respect to the nature of the separation that occurred (whether a claimant quit his or her employment or was discharged), the employer bears the burden initially of establishing the nature of that separation. In cases where an employee quits his or her employment, the employee has the burden of establishing that a statutory exception applies that entitles him or her to claim benefits. If a discharge has taken place, the employer bears the burden of establishing that the discharge was for misconduct or substantial fault.

If the party with the burden of proof does not meet that burden, the opposing party prevails. With respect to most issues in an unemployment insurance hearing, the burden to be met is "the preponderance of the evidence" (the more convincing evidence). In the case of a charge of fraud, however, proof of the allegation must be by "clear, convincing and satisfactory evidence" (substantially more likely than not to be true).

Hearsay testimony is testimony not within the witness’ own knowledge.  An appeal tribunal cannot rely solely on hearsay testimony to make any findings.

You can expect to be asked by the appeal tribunal how you know that an event you testified to occurred.  If you cannot answer by saying, "I saw it myself " or "I heard it myself", it is probably hearsay evidence.  You should bring to the hearing someone who can answer the question "How do you know that happened?" by saying, "I saw it myself".

There are a number of exceptions to the hearsay rule. Of particular relevance in the context of some unemployment insurance hearings is the "business record" exception.

Wis. Stats. § 908.03(6) provides that the following is not excluded by the hearsay rule:

Note that the exception requires that "the custodian or other qualified witness" be present to identify the documents in question, and testify from them.

It is also important to remember that whether a report is admissible under this exception depends on whether there are additional levels of hearsay within the report. If there are, all levels of hearsay must qualify under an exception to the hearsay rule.

For instance, an employer may want to establish that the employee’s supervisor gave him a verbal warning on a given date. In order to do so, the employer may want to offer a computer printout of entries made by the employee’s supervisor as part of a journal she regularly keeps. The printout may be sufficient to establish that some contact was made between the supervisor and the employee on that date, if the computer records were maintained in the course of a regularly conducted activity. However, the actual content of a conversation documented on the printout cannot be established without resorting to a second level of hearsay. In other words, the employer cannot prove what the supervisor said to the employee without the supervisor’s firsthand testimony.

Yes. Payment of taxes under protest does not prejudice the right to an appeal. Furthermore, payment will stop the accrual of additional interest on the tax portion of the assessment.

The determination of assessment will already include some interest and additional interest accrues at the rate of 3/4% per month simple interest to the date of payment.

Where payment is made under protest and the employing unit's appeal is ultimately successful to any degree, the department must refund the appropriate portion of the payment made under protest including interest on the tax portion at the rate of 3/4% per month simple interest from the date of payment under protest to the date of the refund.

When you receive the determination from the department, it will indicate at the bottom the date by which an appeal must be received or postmarked in order to be considered timely.

An appeal must be in writing.

You may appeal online at https://dwd.wisconsin.gov/uibola/appeal.htm.  You may also appeal in writing to the hearing office stating that you are appealing a determination.  The appeal must be mailed, hand-delivered or faxed to the hearing office.

CAUTION: The department may have issued more than one determination that is not favorable to you. Each determination has its own appeal deadline. Your appeal should be as specific as possible regarding the precise determination(s) you are appealing.

If the deadline for appeal has passed, you will need to file a request for a late appeal.  You can file online.

The hearing office may schedule a hearing addressing your reasons for filing the appeal after the deadline. An appeal tribunal may also dismiss the appeal without a hearing if your reasons for filing the late appeal do not constitute a reason beyond your control.

The hearing office may schedule a provisional hearing at the same time on the merits of your appeal, but an Appeal Tribunal Decision on the merits will be issued only if the appeal tribunal finds that your appeal was late for a reason beyond your control.

Your hearing will be scheduled as soon as possible after your appeal has been filed, generally within three weeks.

If a telephone hearing will be scheduled, you will receive documents in the form of a "Telephone Hearing Instructions Packet." The documents contained in that packet may be used as exhibits at your hearing. Be sure to keep them in a safe place. You will need them at the time of the hearing.

If you file an appeal or receive notice of an appeal and know that you will definitely not be available on certain dates in the future, contact the hearing office immediately and let them know you have unavailability dates. If you call before the hearing is scheduled, the hearing office will attempt to accommodate you when scheduling the hearing.

Notify the hearing office of any changes of address and of the identity of any individual you might ask to represent you during the hearing.

When a hearing is scheduled, the hearing office is required to mail notification of the hearing date, time and location no later than six days prior to the scheduled date. You should alert the hearing office to any possible problem with the scheduled date, time, representation, etc., immediately.

The department’s determination allowing you benefits remains in effect while the hearing is pending and until the appeal tribunal issues a decision. You will continue to receive benefits during that period.

If the appeal is not withdrawn or dismissed, the appeal tribunal’s decision will affirm (in whole or in part) the department’s determination, or reverse that determination (again, in whole or in part).

If the department’s determination is reversed, it is possible that there will also be a finding that benefits were overpaid to you in the period prior to the appeal tribunal’s decision, which may have to be repaid to the department.

It is important that you keep filing for benefits in each week that you wish to be considered eligible for benefits.

The department may have issued more than one determination or decision in your case.

The determination or decision you are referring to could be favorable to you, but a determination or decision with respect to a different issue might be unfavorable and result in your being denied benefits.

It is important to keep filing your weekly claims for any week you wish to receive benefits. Do not stop filing just because you are waiting for a hearing or decision. If you are unable to complete a weekly claim, or have stopped filing for benefits but still wish to be considered eligible, contact a claims specialist during business hours.

The answer to this question depends on whether or not a telephone hearing is scheduled in your case.

If the hearing is to be held by telephone (even if only one party is appearing by phone, and the other party is to appear in person), you will be instructed to mail any documentary evidence you want the appeal tribunal to consider (both to the hearing office and to the other party prior to the hearing).

If the hearing is in person for both parties, it is not generally necessary to send documents in beforehand. Two exceptions exist:

• Drug test evidence should be submitted in advance on a certified report form provided by the department, to allow the opposing party an opportunity to analyze and respond to this report; and

• Medical evidence, prepared by a treating health care practitioner on an employee's behalf, on Form UCB-474 provided by the department, should be received well before the hearing to allow for preparation of expert labor market analyst testimony based on the information the physician provides.

The UCB-474 form will also be sent to the employer for review prior to the hearing, to afford the employer the opportunity to subpoena the treating health care practitioner or to present rebuttal medical evidence on its own behalf.

• If you need an interpreter, the hearing office requires the use of its own official interpreters (sign or language) during the hearing. The hearing office provides the interpreter at no cost to the party. If you use or need an interpreter, contact the hearing office immediately to notify them of your need.
• If you have other special needs, all hearing office sites are accessible to persons with physical disabilities. If you are required to appear in person and require disability accommodation(s), contact the hearing office immediately to notify them of your need(s).
• Participants who are deaf, hard of hearing, or speech impaired and use a TTY (text telephone) or PC (personal computer) to communicate may dial 7-1-1 for Wisconsin Relay Service.

You have the right to review your case file before the hearing, at the hearing office indicated on the hearing notice, and to request a copy of the material in the file. You should call the office in advance to arrange for this review.

Hearing office personnel cannot give you legal advice. Personnel can explain hearing procedures and the applicable law that will be used by the appeal tribunal in arriving at the decision, but personnel cannot advise you with respect to strategy and tactics.

You may want to write down questions you wish to ask the other party, and important points you wish to make on your own behalf (such as dates relevant events took place, or a checklist of documents you wish to present).

Remember, though, that you are making notes only to refresh your memory, and you may not be permitted to read them aloud as testimony.

Special Note for Tax Appeals: In an unemployment tax appeal case, you may contact the attorney representing the department and discuss the case.

Often, this attorney will have a good idea of what the issues are likely to be at the hearing and can give you information on what part of the unemployment law may be relevant to the case and what court decisions have construed that part of the law.

The department attorney also has the authority to settle cases and to limit issues, so discussion with that attorney may be advisable. Keep in mind though, that the attorney is representing the department.

Most hearings are scheduled by telephone for all participants

If you prefer to appear in person, you must contact the hearing office as soon as possible to make sure the hearing office has facilities available for your in-person appearance. If such facilities are available, you will be able to participate in person.

Cautionary Note: The other party (if any) will still participate by telephone and you will be expected to send them any documentary evidence that you offer as exhibits so that they have copies of that evidence at the time of the hearing.

No. For telephone hearings, the appeal tribunal must call you. You need to provide a number before the scheduled hearing start time and need to be able to be reached at that number.

Also, take into account any time zone changes.

Once a hearing has been scheduled, parties are expected to make the necessary arrangements to attend, including taking time off from work, management duties, school, vacation, doctor’s appointments, etc.

Postponements are only granted for exceptional circumstances, and must be requested as soon as possible.

The appellant may withdraw the request for a hearing at any time before a decision on the merits is issued.

After receipt of a request, no hearing will be conducted. The determination (the last decision made by the department) remains in effect and becomes final, without any further appeal rights.

The withdrawal request may be made online, in writing, by fax, by telephone call to the hearing office, or on the record during a scheduled hearing. The withdrawal request should include the hearing number.

Yes. If you are participating by telephone and will be having a witness at your location, you need to make arrangements to have either a speaker phone or a separate telephone for that individual. This is necessary in order for you to hear the questions that your witness is being asked by the appeal tribunal and the other party.

If your witness will be at a different location, you need to contact the hearing office prior to the hearing and provide it with that witness's telephone number so that a telephone conference call can be arranged.

You may ask someone with firsthand knowledge to appear as a witness at your hearing.  If a witness is not willing to appear, you may request a subpoena for that witness.

Only the appeal tribunal or a party’s attorney of record (has submitted a letter of retainer) may issue a subpoena. Subpoenas may be issued for documents not in your custody or control.

If you have retained an attorney, contact him or her about subpoenaing witnesses. Your attorney is expected to send the hearing office copies of any subpoenas issued for a hearing.

If you do not have an attorney but wish to have a witness subpoenaed, contact the hearing office responsible for scheduling the hearing. When you ask for a subpoena, have the following information available:

1. Name and address of the individual to be subpoenaed.
2. If documents are needed, a detailed description of the documents and the name and address of the custodian of records (the person who has firsthand knowledge of those documents) you wish to have subpoenaed.
3. Why that witness or record is necessary and material to your case.

At that point, the hearing office will decide whether to grant your subpoena request.

• If your request is not granted: No subpoena will be issued but you have the right to ask the appeal tribunal to reconsider your subpoena request at the time of the hearing.
• If the request is granted: The hearing office will prepare the subpoena form for you to serve.

You will be responsible for the costs of service, if any, and are expected to tender the subpoena fee to the subpoenaed individual at time of service. The subpoena fee is a $16.00 fee, plus travel expenses of 20 cents per mile to and from the hearing location.

An instruction sheet will be provided with the subpoenas. At the time of the hearing, you may ask the appeal tribunal for reimbursement of the subpoena fees, but remember, service fees are not reimbursable.

Factors the appeal tribunal will consider in deciding whether to reimburse you are whether the testimony was relevant, material and not unduly repetitive based on the record of the hearing.

Unemployment insurance hearings are public hearings, and interested members of the public may attend and observe hearings.

The hearing begins with the introduction of the appeal tribunal, appearances and an explanation of the procedures. The issue for the hearing is explained and parties are asked brief position statements.

Testimony is taken under oath or affirmation, in order of burden of proof. Each party has the right to question their own witnesses (direct examination), the other party’s witnesses (cross-examination), and any departmental witness who might be called to testify.

Documents and other evidence may be marked as exhibits and, if those exhibits are received into evidence, the exhibits may be considered by the appeal tribunal together with the testimony in making a decision.

The appeal tribunal is responsible for controlling the hearing process and may make rulings about evidence. After both parties have had an opportunity to present evidence, the hearing is closed.

The appeal tribunal will issue a written decision thereafter.

Depending on the complexity of the issues involved, hearings typically last anywhere from thirty minutes to an hour or more. It is rare, but possible, that a hearing will be continued, and require participation by the parties on more than one day.

Unemployment tax appeal hearings may be somewhat more complex and therefore may last longer than the average unemployment benefit appeal.

Please contact the hearing office if you have questions.

No, during a hearing both parties, if they choose to participate, appear together.

See question 1. "What happens at a hearing?" above.

No. Each party is responsible for his or her own representation. You may be your own representative or bring someone to represent you at the hearing.

Generally, no. Parties are expected to make arrangements for representation prior to the hearing date.

If you are the party that appealed the determination, the appeal tribunal may dismiss your appeal if you cannot be reached by phone or do not appear in person within ten minutes after the time the hearing was scheduled to start.

If you are the respondent, the hearing will begin without you if you cannot be reached by phone or do not appear in person within ten minutes after the time the hearing was scheduled to start.

Another hearing on the merits will not be scheduled unless a party who failed to appear at the hearing shows good cause for the failure to appear.

The party wishing to demonstrate good cause for failing to appear must make a written request for a hearing on this issue, and the request must explain the reason for the failure to appear.

If there have been unforeseen delays in the hearing schedule, you are expected to wait up to one hour for your hearing to begin.

As soon as practical, the appeal tribunal will speak to you about the delay.

If you have not heard from the appeal tribunal within ten minutes of the scheduled start of the hearing, call the hearing office at the number listed on the hearing notice.

The hearing office will verify the number where you can be reached, and do its best to notify you when the hearing can be expected to begin.

Yes, however, please contact the hearing office in advance for instruction.

The party must also submit the recording(s) as part of the record while the appeal is pending. The material will be marked as an exhibit and will be kept with the hearing file. See When do I get my exhibits back?

Accuracy of reproduction is always important when pictorial evidence, such as a video recording, is presented at a hearing. The party offering the videographic evidence must establish that the pertinent parts of the video recording are a reasonably accurate representation of the subject pictured. The level of proof necessary to satisfy this general foundation requirement depends on the circumstances under which the recording was prepared and the reason it is offered at the hearing.

• Where the recording is used as a representation of a live witness’ testimony about what he or she actually observed ("illustrative" or "demonstrative" evidence)
  Illustrative evidence may be authenticated by a witness (not necessarily the videographer) who testifies that he or she knows the scene or series of events depicted, and that the recording is a fair and accurate representation of the scene.
• Where the recording is offered despite the fact that no witness actually viewed the events portrayed ("substantive" or "real" evidence)
  An example of this category would be a video recording from an unmanned surveillance camera. The video recording in this case may be authenticated based upon reliance of the basic principles of videography, strengthened by assurances that the equipment used and procedures followed were proper. This may include testimony about how the unmanned video camera is placed, how the recording was handled from the time of its removal from the machine ("chain of custody"), internal indicators of time and date, and what the background scenery in the video recording portrays.

Yes, you can testify under oath as to what is contained in a document or video recording, but it is preferable to bring the actual document or recording itself. Copies generally will be accepted as exhibits, but the originals should be brought to the hearing whenever possible to verify the authenticity of the duplicated materials. Alternatively, if just a copy is brought in, you or your witness may be asked to verify that the copy is a true and accurate rendering of the original.

Keep in mind that if you choose to testify as to the contents of a document or video recording rather than bring in the document or video recording, the appeal tribunal may not give much weight to your testimony or may discredit it altogether.

A signed statement (even if notarized) or an affidavit cannot substitute for the personal appearance of a witness. A witness must be present at the hearing, sworn in, and subject to questioning by the appeal tribunal and to cross-examination by the other party.

After the hearing, the appeal tribunal 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 decision is usually issued within two weeks but may be delayed because of the complexity of the case, the need for additional research, etc. In unemployment tax cases, the Appeal Tribunal Decision is normally issued within 45 days following the hearing.

A copy of the decision is delivered to the parties and their representatives.

Yes. An appeal must be received or postmarked within 21 days from the date of the decision.

The front page of the decision will indicate the deadline date for appeal. There is no filing fee for this appeal. You may mail, fax or deliver your appeal to the Labor and Industry Review Commission or file your appeal over the Internet by following the directions at Appeal a UI Appeal Tribunal Decision to LIRC.

If the appeal is timely, the Commission will review the evidence already presented at the hearing in order to make a decision. No further hearing will be held unless the Commission orders one. For further information, consult the Labor and Industry Review Commission website.

A claimant who is unemployed should continue to file weekly benefit claims while an appeal is pending. This includes any appeal of the decision the claimant may make to the Labor and Industry Review Commission or any reviewing court.

At the same time your appeal tribunal decision was delivered, a copy of the decision was delivered to the location that issues your payments.

The effect of that decision needs to be entered into the unemployment insurance benefit system; this may take one to two weeks to implement. You may contact a claims specialist if this time period has elapsed and you still have not received payment.

Note: If you did not file weekly claims for those weeks, another eligibility issue will arise.

The documents that are marked and received into evidence as exhibits are part of the record of the hearing and cannot be returned while an appeal is pending.

For this reason, you should bring extra copies of documents you wish to have marked as exhibits. Unless the original copy is necessary, photocopies may be marked. But be sure to bring the original to verify that no alterations have been made to it.

You may request that the original exhibit be returned to you when the decision becomes final.

No. Such a conversation would not be permissible.

Once the hearing record is closed, no other evidence may be submitted unless the record is reopened by the appeal tribunal.

No. You may not obtain the appeal tribunal’s notes because they are the appeal tribunal's personal work product.

However, if you or the other party petition to the Labor and Industry Review Commission for review of the appeal tribunal's decision (a synopsis of the hearing testimony is prepared from the hearing record).

Upon request, the Labor and Industry Review Commission will furnish you a copy of the synopsis of the testimony.

In addition, all hearings are recorded and parties may request a copy of the hearing recording.

For a copy of the hearing recording, contact:

Unemployment Insurance Division
Bureau of Legal Affairs
(608) 266-3174

Be prepared to provide the hearing number, date of hearing, who you are representing and your telephone number.