THE NEXT STEP – APPEAL
We talked last time about the hearing that takes place to determine if an employee should receive unemployment benefits. You can read that blog post here, and the others in our series for employers, here and here. In our last post we gave our view that having an attorney present isn't necessary and may cause more harm than good. At the next level, however, having an attorney represent your company is a good idea. It's the last chance really to present testimony and evidence, and if successful could save your company thousands of dollars. Here are the basics of the appeal:
• Both parties may appeal a decision awarding or denying benefits. The appeal hearing is held before an “Appeals Referee.”
• Both parties have twenty-one (21) calendar days from the mailing date of the notification in which to file an appeal.
• The Appeals Referee holds an informal hearing to which all interested parties are invited. Again, both parties may bring documents or witnesses and be represented by an attorney. You can present to the Referee the same evidence you presented at the first “hearing” and can also present new evidence – the appeal is a complete “do-over” of the first proceeding. We do advise that your company be represented by counsel at this hearing – especially if the employee has other claims against the company. If, for example, the employee has filed a charge of discrimination against the company, important admissions can be obtained from the employee during the hearing, and your attorney will be prepared to obtain those admissions. The witnesses should be the person who made the decision to terminate employment, and a supervisor or someone who can testify about the conduct that led to the decision to terminate employment.
• The Appeals Referee will then issue a written decision.
• The Appeals Referee’s decision may be appealed to the “Board of Review” by either party within twenty-one (21) days of its mailing date.
• Requests for postponement should be made to the office that issued the notice of hearing, and will be granted only for “good cause.”
• Instructions for filing such appeals will follow the Referee’s decision. You should clearly identify the appeal as “Appeal to the Board of Review.”
• The Board of Review’s role is limited to questions of law, and it can be very difficult, but not impossible, to win at this stage. Decisions to appeal to the Board of Review should be carefully considered and reviewed with the company’s attorney. There may very well be good and valid reasons to appeal, but they should be limited to issues that impact the company more widely than just this employee.
After an Appeal to the Board of Review, your challenge of a decision must be made to the Superior Court. Written legal briefs are filed, again focusing on the law and the evidence that existed, or didn’t exist, to support the decision, and the Superior Court Judge will hear oral argument from the parties or their attorneys. No new evidence can be presented. Again, the decision to take an appeal to the Superior Court should not be made lightly, as it can be expensive without a lot to gain, unless the issues impact the company more widely than just this particular employee. For example, the Board of Review may have determined that an independent contractor was really your company's employee. That ruling will have widespread implications, on back withholding taxes and penalties, for example. Or, if your business regularly uses independent or "subcontractors" like a home improvement contractors often do, the ruling could mean all your subcontractors are employees which could be financially devastating for a small business.
We don't want our clients to spend money unwisely, but we do want them to be informed. We hope you find this information useful, and feel free to contact us anytime.