Section 1000

HEARINGS AND APPEALS

Index 1000

TABLE OF CONTENTS



Introduction 1000

Timeliness 1010

Referee hearing, right to 1020

Appeal Board hearing, right to 1030

Jurisdiction of referee and Appeal Board 1040

 

1000. Introduction

Sections 620 through 626 of the Unemployment Insurance Law pertain to hearings before referees (administrative law judges) and the Appeal Board and the procedure for contesting initial determinations and appealing administrative law judge and Appeal Board decisions.

Index 1000 contains rules of cases regarding the above subjects including questions on the right to a hearing. timeliness of request for hearing or appeal and jurisdiction of adjudicating officials.

NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING.

Index 1000

Hearings and Appeals

1010. Timeliness

  1. Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)

 

  1. A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)

 

  1. A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)

 

  1. A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)

 

  1. An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)

 

  1. The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)

 

  1. An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)

 

  1. A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)

 

  1. Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)

 

  1. When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)

 

  1. Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)

 

  1. Obsolete. See A-750-2130

 

  1. In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30    days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)

1020. Referee hearing, right to

  1. Only after the initial determination of benefit rights had been made, was claimant entitled to a hearing before a referee. (A.B. 167,38; similarly, A.B. 146,854)

 

  1. Although leave to apply for reopening of a referee decision is given to a claimant who failed to appear at the hearing, such application may be denied by the referee if there was an unreasonable delay in making it, because of claimant's lack of due diligence. (Ref.. 544-190-54R; A-750-1279; similarly A.B. 224,308)

 

  1. Appeal Board did not entertain claimant's appeal from referee's decision closing a case after claimant withdrew his request for hearing. (A.B. 827-39)

 

  1. The Board sustained the referee when he reopened a cancelled hearing request since "to hold claimant absolutely and unconditionally bound by his request for cancellation of the hearing would not be in the interest of substantial justice. . . ." (A.B. 66,183-58)

 

  1. A claimant for benefits has no right to a hearing on a denial of his request for disclosure of information furnished by his employer when no initial determination adverse to him is involved. (A.B. 85,187-61; A-750-1562)

 

  1. An employer is not entitled to a hearing from an initial determination disqualifying a claimant from receiving benefits since he is not a party aggrieved or affected by such determination. (Ref. OSR-935-53R; A-750-1200; similarly, A.B. 269,904)

 

  1. Claimant's last employer is entitled to a hearing on an initial determination holding that claimant left employment with good cause even though claimant did not work for such employer during his base period and benefits paid would not be charged to the employer's account. (A.B. 33,219-52; A-750-1152)

 

  1. The last employer is entitled to a hearing on an initial determination holding that claimant refused re-employment With good cause. (A.B. 25,209)

 

  1. Any potential chargeable employer is entitled to a hearing on any initial determination favorable to the claimant. (Section 620.1 ) 1/

 

  1. Removed 1/

1/ The rule previously at this entry was rendered obsolete by UI Reform. The Appeal Board decision giving rise to this rule is no longer controlling precedent.

  1. An out-of-state employer, not subject to the New York Unemployment Insurance Law. is not entitled to a hearing on its objection to an initial determination allowing benefits to a former employee since he is not a party affected by such determination. (A.B. 52,272-55; A-750-1391)

 

  1. An out-of-state employer is entitled to a hearing on a combined wage claim because he was a potentially chargeable employer. (A.B. 263,321)
  1. A party does not have good cause for failure to appear at a hearing, and its application to reopen that hearing should not be granted, where the failure to appear at the prior hearing was due to the party's failure to properly read the notice of hearing. (A.B. 546157; A-750-2132)
  1. Where a claimant is not contesting the validity of an initial determination, the administrative law judge and the Appeal Board do not have jurisdiction to rule on the Commissioner’s efforts to collect an overpayment resulting from the determination. A-750-2145)
  1. The fact that an employer waited a year after the final incident to discharge the claimant is not controlling as the employer waited until after the legal process ran its course to discharge the claimant for misconduct. A-750-2147)

 

1030. Appeal Board hearing, right to

  1. Where referee closed case due to lack of evidence with leave to claimant to reopen, his remedy is application to referee to reopen in order to produce additional evidence and not by way of appeal to the Board. (A.B. 2237-40; A-750-183)

 

  1. Appeal Board handed down several decisions stating that claimants could not take an appeal from decision of referee solely for the purpose of proving earnings to which they made no claim at the hearing before the referee. The remedy in such cases was for claimant to apply to the referee for a reopening of the case. (A.B. 193-38; A-60-38; A.B. 203-38)

 

  1. Referee's decision holding employer subject to Law and not appealed, was final and controlling. Employer could not appeal subsequent decision involving the same period of time and a different claimant. (A.B. 2432-40; A-750-181)
  1. Where a claimant is not contesting the validity of an initial determination, the administrative law judge and the Appeal Board do not have jurisdiction to rule on the Commissioner’s efforts to collect an overpayment resulting from the determination. A-750-2145)

 

1040. Jurisdiction of referee and Appeal Board

  1. Referee had no jurisdiction to rule on a determination of the local office which the claimant did not contest. (A.B. 10,939-44; A-750-583)

 

  1. Referee had jurisdiction to change the reason for withholding benefits stated in the initial determination where the issues were related and when the same state of facts could lead to more than one reason for denying benefits. (A.B. 6868-42; A-750-336)

 

  1. A referee has jurisdiction to rule upon an amended determination, even though introduced for the first time at the hearing, if such amended determination is based on the same facts which gave rise to the issuance of the original determination. (A.B. 48,935-55; A-750-1435)

 

  1. A determination of unavailability loses its validity when a claim becomes inactive, so that a new determination must be issued if a claimant is still unavailable when an additional claim is filed after a lapse of time or a change of conditions. (The referee has no jurisdiction to rule on subsequent period for which no new determination is issued). (A.B. 157,903; A-750-1723)

 

  1. Initial determinations fixing penalties are subject to review and modification by a referee or the Appeal Board. A decision of the Appeal Board reducing a forfeiture penalty from 80 to 20 effective days was affirmed. (Matter of Horvat. 300 N.Y.704 aff'g 275 App. Div. 442; A.B. 18.607-49; A-750-885).