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The Hearing Process: Frequently Asked Questions

Q: What are some of the reasons I could be denied benefits?

A: You must meet the conditions set by law to receive unemployment insurance. You cannot receive unemployment benefits if you have less than the required work and wages to establish a claim. Other circumstances under which your claim cannot be approved are explained below.

Note: If you are disqualified or suspended before beginning a benefit year, you can receive benefits after the suspension or disqualification ends if, at that time, you can meet all the tests for filing a new valid claim.

Voluntary Quit and Misconduct. You will be disqualified from receiving unemployment insurance if:

You quit a job without good cause; or
You quit a job due to marriage; or
You lost a job because of misconduct; and
You have not subsequently worked and earned five times your benefit rate.

A disqualification for the above reasons lasts until you work and earn at least five times your benefit rate. Self employment does not count. You must be out of work again through no fault of your own. In addition, any employment which you lost due to misconduct cannot be used to establish a claim or in the calculation of your benefit rate.

Criminal Misconduct. If you are discharged for committing a felony in connection with employment and admit guilt in writing or you are convicted of the crime, you will be disqualified from receiving benefits for 12 months after discharge from employment. Also, wages paid you for such employment cannot be used to establish a claim for unemployment insurance.

Job Refusal. You will be disqualified from receiving unemployment insurance if, after applying for unemployment insurance, you refuse without good cause to take a job for which you are fitted by training and experience and which pays the prevailing wage for that kind of work in the locality. You may also be disqualified, if, after receiving 13 full weeks of benefits, you refuse without good cause to take a job that you are physically and mentally capable of doing and that pays the prevailing wage for such work and pays at least 80% of your base period high quarter wages.

Strike and Other Industrial Controversy. If you lose your job because of a strike, lockout or other industrial controversy in the establishment where you are employed, your rights to unemployment insurance will be suspended for 49 days beginning with the day after you lost your job or until the labor dispute is ended if it does not last 49 days. This applies whether or not you are directly involved in the labor dispute.

Availability and Capability. If you are not ready, willing and able to work, are not prepared to take a job immediately, or are not physically or mentally capable of employment, you will not be paid benefits until you are satisfying the Department of Labor that you are again available for employment and are capable of working and are making diligent efforts to find a job.

Not Totally Unemployed. If you work while receiving benefits and do not report that employment, even if it is part-time work, you may be committing fraud. You may be suspended from receiving benefits for any day you worked and did not work that work. You may be required to pay back the money you received and a penalty may be assessed for falsely stating you did not work.


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Q: What if I am denied benefits?

A: If you are denied benefits, a Notice of Determination will be mailed to you telling you the reasons why. This notice will also explain for what period of time benefits are being denied, how to re-qualify and how to ask for a hearing.


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Q: What if I receive an overpayment determination?

A: If it has been determined that you have been overpaid benefits, you will receive a written Notice of Determination explaining the reason for the overpayment and how to request a hearing if you disagree.

If you think you were paid benefits in error, it is important to notify the Telephone Claims Center. If you are entitled to further benefits, you may be able to use those benefits to repay the overpayment. Check with the Telephone Claims Center for instructions. Failure to repay an overpayment may result in additional charges for interest.

In addition, arrangements have been made with other state agencies that enable the Department to intercept payments due you to repay amounts owed to the Department.

A forfeit penalty, called Willful Misrepresentation, may be imposed. Cases of fraud are considered misdemeanors or felonies and may be prosecuted.


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Q: What is willful misrepresentation?

A: A forfeit penalty is imposed when it has been determined that you knowingly made false statements to obtain benefits or that you purposely withheld pertinent information to obtain benefits. It results in a reduction of your rights to future benefits for a stated time period. Any future payments you may be eligible to will be used to liquidate a forfeit penalty by withholding and offsetting benefits.


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Q: What is a hearing?

A: A hearing is an informal proceeding held before an administrative law judge. Based on the evidence presented at the hearing, the judge will decide whether you are entitled to or eligible for unemployment insurance benefits. At the hearing, you, your employer and any witnesses for either side may testify. The testimony will be recorded. Either side can also present papers or other physical evidence.


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Q: How do I request a hearing?

A: You may request a hearing on any determination affecting your rights to benefits by writing a letter to NYS Department of Labor, P.O. Box 15131, Albany, NY 12212-5131. 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. Make sure you include your Social Security number on your hearing request and the reasons you disagree with the determination. You will be notified of the date, time and place of the hearing by the Administrative Law Judge section after your request has been processed.

To protect your rights, you must continue to claim weekly benefits for any week in which you are unemployed. Claim your weekly unemployment benefits online using your NY.GOV ID. You may also use a touch-tone telephone or a telephone with a pulse/tone switch by calling TEL-SERVICE at (888) 581-5812 for New York State residents or (888) 864-9920 for out of state residents.


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Q: Who is the administrative law judge?

A: The hearing is conducted by an administrative law judge, or ALJ. The ALJ is employed by the Unemployment Insurance Appeal Board to decide whether or not the determination made by the Department of Labor is valid and/or reasonable. The ALJ's job is to ensure that all parties have a fair chance to be heard and get a fair and impartial decision.


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Q: What will the hearing be about?

A: If you are denied benefits, a "Notice of Determination" will be mailed to you exlaining the reason you were denied benefits. If you disagree with the determination, you may request a hearing. The hearing will decide whether the determination was valid and/or reasonable.

If your employer requested a hearing after you were granted benefits, the hearing is to find out whether your employer's objection is correct.

The judge can decide to consider questions about your case other than those in the Notice of Determination or the employer's objections, but he or she must have a good reason for doing this and must tell you what that reason is. If you are not prepared to discuss a new question, you have the right to request an adjournment.


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Q: How can I prepare for a hearing?

A: Prior to the hearing, you will receive a detailed notice and a question/answer pamphlet describing the hearing procedure and your rights. If you have any questions not covered in the notice, contact the administrative law judge section or the Telephone Claims Center. You have the right to inspect the file on your case prior to the hearing.

Important: To protect your rights, if you are planning to request a hearing or if a hearing is pending, you must continue to claim weekly benefits for any week in which you work less than 4 days and earn less than $405.


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Q: Where can I find summaries of previous Appeal Board and Court decisions?

A: The Interpretation Service Index is a compilation of rules based on Appeal Board and Court decisions interpreting the Unemployment Insurance Law. It is intended to report, in summary form, decisions of current legal validity. View the Electronic Interpretation Service Index for Benefit Claims.


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Q: What happens at the hearing?

A: Before the hearing begins the judge will review your file. The file may contain records of information you provided in writing or over the phone, your employer's statements and the Department of Labor's determination(s).

The judge will begin the hearing by identifying all of the parties to the hearing and state what the hearing is about. The judge may then ask questions of you, your employer, and any witnesses present for either side. The judge may hear your employer's side of the story first. If either side has brought a lawyer or representative, the judge will allow the lawyer or representative to ask questions. At the end of the hearing both you and your employer can give closing statements summing up your arguments.


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Q: Can I ask questions?

A: Yes. You have the right to ask questions of your witnesses, your employer, and your employer's witnesses. If you have trouble, you can ask the judge to help you.

Your employer or your employer's representative will have a chance to question you and your witnesses.


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Q: What should I bring to the hearing?

A: You should bring all of the papers you have received from the Department of Labor.

You should bring any papers or other evidence that will support your position, such as contracts, letters, pay stubs, arbitration decisions, collective bargaining agreements, employee handbooks or manuals, doctors' notes, and photographs. Ask the judge to accept these papers for the record of your hearing. In deciding your case, the judge can consider only those papers or other pieces of evidence which have been identified at the hearing, reviewed by the other side, and accepted into the record.

Your employer can ask the judge to accept evidence and the judge can put papers from your file into the record. You have the right to look at any evidence before the judge accepts it for the record.


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Q: Can I examine my file before the hearing?

A: Yes. At any time before the hearing you may call the Administrative Law Judge Section to arrange to see your file.


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Q: Can I bring witnesses?

A: Yes. You can bring any individual(s) who can tell the judge something which helps you support your position. You, your employer, and the judge will be able to question any of your witnesses. Your employer may also bring witnesses and you may question them.


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Q: What if I cannot get the evidence or witnesses I need for the hearing?

A: If there is documentation or other evidence that will help you prove your case, but you cannot obtain because the person who has it will not provide it to you, ask the judge to force the person who has the evidence to bring it in. To do this the judge prepares a paper called a "subpoena" (sa-pee-na). If the judge grants your request, the judge will adjourn the hearing, so the subpoena can be delivered.

In the same way, if an important witness cannot or will not appear at the hearing, ask the judge to force the witness to appear by issuing a subpoena. Again, this will cause the hearing to be adjourned.

If you do not need a judge's help to obtain evidence or a witness, but you need time to get it, ask the judge to give you more time. The judge will only give you more time if you have a good reason for requesting it.

Your employer and the Department of Labor have the same rights to obtain evidence or witnesses.


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Q: Can I bring a lawyer or someone to help me?

A: Yes. You can bring a lawyer or anyone else to the hearing to help you. If you cannot afford to hire a lawyer, you may be able to get one free through your local Legal Aid Society or Legal Services office. Only a lawyer or an authorized agent can charge a fee to help you (and then only if you win).

View list of attorneys and authorized agents.

Anyone can help you who does not charge a fee.

Your employer can also bring a lawyer or agent.


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Q: Can I have the hearing delayed?

A: If you have a good reason for a delay, ask the judge to adjourn the hearing to a later date. The judge will decide whether there is adequate reason for a delay. Some good reasons may be:

  1. you have been called for jury duty;
  2. you have not had time to meet with your lawyer or representative; or
  3. you need more time to gather evidence.
If possible, ask for an adjournment ahead of time by writing to or calling on the Administrative Law Judge Section. If a delay is not granted in advance, you must go to your hearing to request a delay in person or to testify if a delay is not granted. If you cannot appear in person, you may send a representative along with a signed explanation as to why you cannot attend.


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Q: What happens if I miss the hearing?

A: The judge will hold the hearing without you and will decide your case without hearing your side.

If you miss a hearing for a good reason (for example, you had a medical emergency), you may apply to reopen the judge's decision by writing to NYS Department of Labor, P.O. Box 15126, Albany, NY 12212-5126. You will need to give the reason(s) why you did not appear. If the judge finds that you had a good reason, the judge will reopen the case.


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Q: What happens if your employer misses the hearing?

A: If your employer misses the hearing, the judge will hold the hearing and will decide your case without hearing your employer's side.

Your employer may also request a reopening if there is good and sufficient reason for missing the hearing.

If your employer is appealing a determination allowing you benefits and your employer does not appear at the hearing, the case will automatically be decided in your favor.


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Q: When will I find out about the judges decision?

A: The decision will be mailed to you as soon after the hearing as possible. If you do not receive a decision within three weeks, contact the Telephone Claims Center or the Administrative Law Judge section where you had your hearing (the phone number is on the notice of hearing).

The decision will set forth the facts found from evidence, the reasons for the findings, and the decision itself. There will also be an explanation of how to file an appeal with the Unemployment Insurance Appeal Board if you disagree with the decision.

If you do not understand the language of the decision, you may call the Telephone Claims Center and it will be explained to you. Call the Telephone Claims Center at (888) 209-8124 or toll-free at (877) 358-5306 for out of New York State residents between 8:00am and 5:00pm, Monday through Friday.


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Q: Can I appeal the administrative law judge's decision?

A: Yes. You have 20 days to appeal the judge's decision to the Unemployment Insurance Appeal Board. If more than 20 days have passed, you must explain why your appeal is late. Send a letter to NYS Department of Labor, P.O. Box 15126, Albany, NY 12212-5126 and state the reason why you do not agree with the judge's decision. You must have been at the hearing to request an appeal. If you did not appear at the hearing, you may request that your case be reopened. Your employer (or the Department of Labor) may also request an appeal.

After your appeal has been filed, you will receive an acknowledgment and instructions on how to submit additional written statements.


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Q: How does an appeal work?

A: Once your request for an appeal of the ALJ's decision has been received, the Appeal Board will send you a "Notice of Receipt of Appeal". The notice will explain your rights and the time limits for you to inspect your file, instruct you to submit a written statement to the Appeal Board as to why you disagree with the judge's decision, and to reply to statements by other parties.

You may get an attorney or someone else to help you prepare your statement. Your employer will also be allowed to file a statement.

You can review the transcript of your hearing before you write your statement. (The transcript is the written record of everything said at the hearing). To review the transcript, write a letter to the Appeal Board once you receive the "Notice of Receipt of Appeal" and before your statement is due. Request that the Appeal Board notify you know when the transcript is ready and to give you two weeks from the time the transcript is ready to submit your statement.

These time limits will be strictly enforced. Therefore, you should read the Notice of Receipt of Appeal very carefully.

If the Appeal Board finds that there was a problem with your hearing, it can send your case back to the judge for another hearing or it can decide to hold a hearing itself.

If the Appeal Board decides that the judge's decision was not correct, it can overturn the judge's decision.


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Q: What if I win, but my employer appeals?

A: Your employer (or the Department of Labor) may appeal a decision that is rendered in your favor. If the Appeal Board agrees with them, you may be required to repay any benefits you received. Therefore, you should submit a written statement in opposition to any appeal made by the employer or the Department of Labor. You have the same rights that you would have if you had lost the hearing and requested the appeal yourself. For example, you may review the transcript and/or consult an attorney.


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Q: What if I lose the hearing?

A: If the Administrative Law Judge does not rule in your favor, you will be informed of whether you are required to repay any unemployment benefits that were issued to you and/or whether your rights to future benefits will be reduced due to a forfeit penalty.

If you have been disqualified or suspended and file a new claim for benefits, you may be able to receive benefits after the suspension or disqualification ends, if, at that time, you can meet all of the tests for filing a new valid claim. If you are determined eligible for benefits on a new claim and have an outstanding overpayment or forfeit penalty, your rights to those benefits will be offset by the number of forfeit penalty days outstanding, up until the penalty expiration date. Once the forfeit penalty is satisfied, any benefits you are entitled to will be applied to offset an existing overpayment. When the overpayment has been repaid, you may receive weekly benefits under the same eligibility criteria as any other claimant.

If you do not file a new claim, but are required to repay unemployment benefits issued to you, you may send a check or money order payable to Unemployment Insurance Division and mail it to Unemployment Insurance Division, NYS Department of Labor, P.O. Box 4320, Binghamton, NY 13902-4320. Be sure to write your Social Security number on each check or money order. For payment arrangements, call the Overpayment Unit at (800) 533-6600.


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Q: Can I further appeal to the court?

A: Yes. If you, your employer, or the Commissioner of Labor disagrees with the decision of the Unemployment Insurance Appeal Board, the case may be taken to the Appellate Division of the State Supreme Court, Third Department. Further appeal must be made in writing to the Appeal Board within 30 days of the date on which the decision was mailed. Mail your appeal to UI Appeal Board, P.O. Box 15126, Albany, NY 12212-5126. You will be given further instructions once your appeal is received by the Appeal Board.


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