Hearing process

As an employer, you have the right to request a hearing whenever you disagree with a determination regarding your liability under the Unemployment Insurance Law or a claim for benefits filed by one of your former employees.  There is no need to use a Department form to file your request.  However, your request must be in writing and should be sent to the office that issued the determination.  The request must be postmarked or otherwise proven to have been filed within 30 days after the mailing or personal delivery of the determination.  Absent proof to the contrary, a determination shall be deemed to have been mailed on the date recited on it and received by a party to whom it is addressed no later than five business days after the date on which it is mailed.  The request for a hearing should be in writing and state the factual basis or specific events which are the employer's grounds for denying benefits to the claimant.

The first step in the hearing process is a hearing before an impartial administrative law judge.  The Administrative Law Judge Section is under the jurisdiction of the Unemployment Insurance Appeal Board, an independent body appointed by the governor.   If you disagree with the decision of the administrative law judge you can file an appeal with the Unemployment Insurance Appeal Board.    Decisions of the Appeal Board can be appealed to the Appellate Division of the Supreme Court, Third Judicial Department, and from there to the New York State Court of Appeals.

Administrative law judge hearing.  The administrative law judge will open the hearing by explaining the hearing process.  The judge will then ask you questions about the case. Your attorney, accountant or other representative, if you have one, will also be allowed to ask questions.  You should be prepared to present all the evidence and testimony which you feel supports your position. 

You may bring witnesses to testify on your behalf at the hearing.    A witness is a person who has personal knowledge of the issues.   For example, someone who personally observed an incident or was involved in an incident which resulted in the termination of an employee should be called as a witness to testify as to the actual events. This is important because the Appeal Board and the courts have consistently held that a claimant's sworn testimony must prevail over an employer's hearsay evidence. You should also be prepared to present documentary evidence to support your position. This may include attendance records, counseling memos and employee handbooks for a hearing on benefit eligibility, or copies of contracts or agreements, business cards and invoices for tax liability hearings. In some cases, the Department of Labor will send a representative to the hearing in order to explain and defend the determination being contested.  The Department representative may also ask you questions.   

All parties have the right to cross-examine you or your witnesses and you have this same right of cross-examination. You will also be given an opportunity to make a closing statement.

Prior to the hearing, you will receive a notice with the date, time and place of the hearing, including instructions.   If you require further information, after receiving the notice, you can call the telephone number that appears at the top.

If you, your representative, or one of your witnesses is unable to attend the hearing, you may request an adjournment by writing to the Administrative Law Judge Section.  You should include the specific reason for requesting an adjournment. If the administrative law judge does not grant your request and issues an unfavorable decision, you may apply for a reopening. You should submit your application as soon as possible and include a reference to your request for an adjournment. If your reopening request is granted, a new hearing will be held. A benefit claimant has the same right to request an adjournment or a reopening as an employer.

Unemployment Insurance Appeal Board. If you disagree with the decision of the administrative law judge, you can appeal to the Unemployment Insurance Appeal Board (UIAB). The appeal must be filed, in writing, within 20 days of the administrative law judge decision. The UIAB will send you a "Notice of Receipt of Appeal," which assigns an Appeal Board number to the case and describes the appeal process, including how to submit a statement on appeal. Your statement must be submitted within seven days of the date on the "Notice of Receipt of Appeal."

You may request to review the hearing transcript before submitting your statement. If you elect to review the transcript, you will be notified in writing when the file is available for review.  You will have 20 days from the date of that notice to submit your statement.   You do not need a legal representative to prepare a statement. However, as most appeals are decided by the UIAB without further testimony; your statement should clearly specify your reasons for believing that the decision of the administrative law judge is incorrect.   The UIAB relies on evidence taken at the administrative law judge hearing and on written statements, documents and briefs submitted as part of the appeal.  The UIAB will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent.

If you disagree with an Appeal Board decision, you may appeal to the Appellate Division of the Supreme Court, Third Judicial Department, and from there to the New York State Court of Appeals.   

The Commissioner of Labor and benefit claimants have the same right to appeal an adverse decision to the UIAB and the courts.