1. THE UNEMPLOYMENT INSURANCE APPEALS PROCESS:
The following is meant to provide a brief description of the unemployment insurance (UI) appeal hearing process. It is intended to inform, not to advise. The statements contained herein do not have the force and effect of law or rules and regulations. If you do not fully understand the law or your rights in the appeal process, contact our office. A legal secretary will be glad to answer your questions, but cannot provide you with legal advice. Note: the hearing officer assigned to your case cannot discuss the case except during the hearing. Initial decisions about Ul benefits are generally issued through a Determination made by a UID adjudicator. An interested party who disagrees with the Determination has the right to appeal and have a hearing. Appeals are heard by a hearing officer in the Office of Administrative Hearings.
Does it do any good to have the hearing?
Hearings conducted by Office of Administrative Hearings (OAH) are full evidentiary hearings and are not reliant on previous determinations made by the Unemployment Insurance Division (UID). An appeal hearing allows both parties to present their case and to ask each other questions. Although the hearing officers are employed by DLI, they are independent from the offices that issue the determinations and they are required by law to provide fair and impartial hearings. All hearings are recorded. The recordings ensure that an accurate record is kept for possible review at a higher level. Hearings are open to the public, but it is very rare that anyone from the public participates in the hearing.
If you are a claimant who is claiming benefits while an appeal is still pending, you should continue to report to the UID as required, and file bi-weekly claims.
After OAH receives the appeal, it will schedule the hearing as soon as possible, assemble the hearing file and prepare a Notice of Telephone Hearing. A copy of the hearing file and the Notice of Telephone Hearing will be mailed to all interested parties (claimant, employer, and any others). This is called the hearing packet and it is very important that you review all the materials. The case number will appear on the Notice of Telephone Hearing mailed to you. If your address changes while you are a party to an appeal, you should immediately notify OAH and the UID office through which the claim was filed of the change. A party failing to do so may not receive important correspondence about the appeal.
Hearings are held by telephone and are recorded. A Hearing Officer, a neutral judge of the facts in your case, conducts the hearing. Statements are taken under oath. The Hearing Officer will issue a decision based on what you, your employer and any witnesses say at the hearing as well as any admitted written material you present.
Hearings are informal. You can, but do not have to, obtain legal representation. We can make special arrangements if you are hearing-impaired or need a special accommodation.
If you disagree with the hearing officer's decision, you can appeal it to the Montana Board of Labor Appeals (BOLA). Follow the instructions for requesting an appeal which are included with the hearing decision. The Board of Labor Appeals reviews only the recording and the admitted documents from the hearing. They mail a decision to the parties after they complete their review. If you disagree with this decision, you can appeal it to the Montana District Court.
For more information on the hearings process, please visit the Office of Administrative Hearings web site. There you can find an informational video on how to prepare your case and what to expect during your hearing.
2. Why did I Receive a Notice of Telephone Hearing and What is it for?
After the Office of Administrative Hearings (OAH) receives your appeal, it will assemble a packet of materials that includes the Notice of Telephone Hearing and the documents submitted by the parties during the adjudicative process. You should familiarize yourself with the information contained in the packet. It is up to the individual interested party to prepare and present his or her case at the time of the hearing. These materials are very important to you.
The first page of the Notice of Telephone Hearing lists important facts for your hearing, such as the names, addresses and telephone numbers of participants, the date and time of the hearing, the issue(s) to be heard, and requirements for the hearing process. The packet included with the Notice of Telephone Hearing contains documents previously submitted to the Unemployment Insurance Division. All of the documents have been numbered for easy reference during the hearing. It is important to have all of these documents with you at the time of the hearing. Tip:Put these documents in a three-ring binder so they stay in order during the hearing.
Address and Telephone:
Check your address and telephone number on the Notice of Hearing. If it is wrong, you must call the Office of Administrative Hearings immediately. If the hearing officer does not have your correct phone number, you will likely not be able to participate in the hearing.
Date and Time:
This is the date and time that the hearing will be held. Be ready to participate at this time. If you are not available, we will hold the hearing without you and issue a decision. If you have an emergency and are unable to participate in the hearing, call the OAH before the hearing, or as soon as possible thereafter. If the Hearing Officer has not called you within 15 minutes after the time set for hearing, call the OAH at the telephone number listed on the Notice of Telephone Hearing. For example: if your hearing is set for 9:00 a.m. and you have not heard from the hearing officer by 9:15 a.m., call OAH at the number on the notice. You do not need to call in before the hearing if the Notice of Telephone hearing has the correct phone number listed for you.
The issue(s) is stated on your Notice of Telephone Hearing beneath the names and addresses of the parties. The issue is determined from your appeal of an Unemployment Insurance Division determination or redetermination. This is the only subject that will be considered during the hearing.
The CLAIMANT is the one who can receive benefits. The other party in the hearing may be an EMPLOYER or it may be the Unemployment Insurance Division itself.
Parties to a hearing are called the APPELLANT (the one who appealed) and the RESPONDENT (the one who is "answering" the appeal). The Notice of Telephone Hearing identifies who is the Appellant and who is the Respondent.
3. WHAT IS A TELEPHONE HEARING?
More than 90 percent of unemployment insurance hearings are conducted by telephone conference call, but occasionally circumstances require an in-person hearing. An in-person hearing is held in Helena. In a telephone hearing, the parties and their witnesses testify over the telephone. Use of cellular and pay phones is discouraged due to noise and connection interference.
Telephone hearings allow parties to participate in hearings when it would be burdensome for them to travel to a common hearing site. However, any party to an appeal has the right to appear in person for the hearing. If a party requests an all in-person hearing requiring all parties to attend, that party must make a written request at least 5 days before the hearing date and show good cause for the request. All in person hearings are held in Helena, Montana. It will not sway the hearing officer one way or the other if you attend in person or by telephone.
The Hearing Officer will call you at the time stated on the Notice of Telephone Hearing. Please be near your telephone 15 minutes before the scheduled hearing time in order to avoid delay. However, also be prepared for a delay in the event the Hearing Officer has difficulty placing the call.
4. WHAT DOES THE HEARING OFFICER DO?
An unemployment insurance hearing is conducted by an impartial Hearing Officer who acts as a judge would in a courtroom hearing - except in this case; the atmosphere is much less formal. The hearing officer is trained to conduct hearings where one or both parties are not represented. The hearing officer has sole responsibility for the conduct of the hearing. The Hearing Officer is to obtain all evidence which is reasonably available and related to the case. The hearing officer will conduct a fair and impartial hearing at which each party has reasonable opportunity to oppose any other party's evidence. The hearing should involve only those issues properly raised by the appeal from the Unemployment Insurance Division's determination(s) and of which the parties have been given notice. The hearing officer will not allow anyone, including the parties, to interfere with the conduct of the hearing. In conducting the hearing, the hearing officer should:
- ensure a clear and orderly record of the hearing;
- identify the case and the hearing participants;
- explain the purpose of and issues for the hearing;
- make clear on the record that any waiver by a party of procedural rights, such as notice of an issue, is knowingly made;
- explain the procedure for the hearing, including the order in which the parties will present testimony or other evidence;
- describe the evidence of record accrued before the hearing, including any documents which the DLI has forwarded to the Office of Administrative Hearings if the parties are not familiar with them and any record of a previous hearing;
- administer the oath or affirmation required for testimony at the hearing;
- question parties and witnesses as necessary to develop the record and obtain the reasonably available evidence concerning the issues;
- allow the parties to present any testimony reasonably related to the case and, as the hearing officer deems necessary, assist the parties in asking questions of witnesses and other parties;
- enter into the record as properly marked exhibits any documents or other physical evidence timely offered for the hearing and reasonably related to the case;
- take administrative notice of laws or regulations of the State of Montana or the United States which generally apply to unemployment insurance cases and of commonly known facts or facts readily found from reference sources reasonably known to be accurate;
- rule on the written or oral record with regard to requests (motions) or objections of the parties, the admission of evidence into the record, and procedure such as subpoenas or continuing the hearing to another time; and
- allow the parties to make summarizing comments (i.e. closing statement), or otherwise ensure, before closing the hearing, that the parties have nothing further to present on the issues.
5. DO I NEED A LAWYER?
Most parties do not have an attorney or other representation at their hearing. The Hearing Officer will ensure that all parties are given an opportunity to present their case. It is the Hearing Officer's job to make sure each party receives a fair and unbiased hearing, regardless of whether the party chooses to have representation at the hearing. If you believe your case is complicated, or you think you may be uncomfortable presenting your case, you can hire a lawyer or representative of your choice to present your case.
The representative questions witnesses, makes legal objections, and makes a closing statement. In most cases the claimant represents him or herself and a business is represented by one of its employees. If you pay the representative directly, that person must be a licensed Montana attorney. An employer may also use any employee of the business as its representative or a third-party representative. You cannot have someone else testify in your place.
If you are going to hire a lawyer, do so right away. Your lawyer will need time to prepare your case. If you hire a lawyer, he or she must file a Notice of Appearance with the Office of Administrative Hearings. A hearing is not automatically postponed because your lawyer may have a scheduling conflict.
6. HOW SHOULD I PREPARE FOR MY HEARING:
Tip: watch the video called "How to Prepare for your UI Hearing
How do I prepare for my appeal hearing?
Generally, the appeal will be decided solely on the basis of the testimony and evidence admitted at the hearing. Therefore, it is important that you prepare for the hearing. First read the Notice of Telephone Hearing. Read it and all of the attachments carefully. If you have any questions, call the telephone number at the top and ask to speak with a legal secretary. Next, read the Determination of the adjudicator. It states why the adjudicator ruled in one party's favor. Consider whether the facts, as you understand them, would lead to a different conclusion. Make notes of the events and circumstances as you recall them. The Determination also lists the law which the Adjudicator applied to your case. MCA means Montana Code Annotated. ARM means Administrative Rules of Montana. Copies of these are kept at most public libraries. They are also available on the Internet: Montana Code Annotated Title 39 and Administrative Rules of Montana (Title 24).
Tip: Work with a close friend or relative to help you prepare for your hearing.
Once you have decided what facts you want to present, contact the witnesses who can testify to those facts, and arrange for them to participate in the hearing. Identify any documents from the hearing packet which prove those facts, so you can enter them into evidence at the hearing. You may also identify documents that you believe should not be part of the record and object to their admittance at hearing. If you have any additional documents you want the hearing officer to consider, you must immediately mail or fax copies of any documents you want considered to the hearing officer (406) 444-2689) and the other party.
Why do I want to bring a witness?
You should be prepared to present firsthand evidence to support your position. Your witnesses should be able to testify as to what they actually observed, not what they heard happened. Your testimony as to what someone else told you happened - hearsay - is not the best evidence. The Hearing Officer may admit hearsay but may not give it much weight.
Use only witnesses you really need. If you have several people who would say the same thing, use the person who can best state the facts. Make sure your witnesses are available to participate at the time set for the hearing. You have the right to present testimony of witnesses. The Hearing Officer, however, will not allow repetitive evidence or evidence that is not relevant to the case. There is no need to call several witnesses to testify to the same occurrence or facts. You may need more than one witness, however, to cover different occurrences or facts. You must notify your witnesses of the hearing (and provide their telephone numbers if the hearing is by telephone). If your witness will not agree to testify, contact the OAH immediately. If the witness is necessary to your case, the Hearing Officer will, at your request, issue a subpoena which will compel the witness to testify. If you need more than three subpoenas, you must file a written request identifying the expected testimony of the additional witnesses; the necessity of the testimony; an indication that the witness has refused to testify willingly; and an explanation of how the witness' testimony will differ from the expected testimony of other witnesses.
How do I get evidence to the hearing?
If you want the Hearing Officer to consider documents not already in the file in deciding your case, you must send them to OAH (not your local employment office) and provide copies to the other parties involved in the hearing before the time set for the hearing. You may bring anything to help further your case. This might include letters, medical statements, pay vouchers, employment contracts, memoranda, employee handbooks, personnel policies, work rules, written warnings, pay records, etc. If the evidence is not paper, it will be up to you to make the arrangements in advance to have it considered at the hearing, e.g.: bring a tape player if you want a tape considered. Be sure to call in advance if your evidence requires special arrangements to be considered.
What if someone has evidence I want to present?
Parties should cooperate in exchanging information before the hearing. If the other party will not give you documents you need to prove your case, you can have a Subpoena for the Production of Documents issued for the information. This is a subpoena to require someone to supply you with the information you requested. OAH will send you up to three (3) subpoenas and you must fill them out and serve them on the person who has the information. If you request more than three (3) subpoenas, you must describe the item, identify the owner or custodian, list that person's address, and describe why the Hearing Officer must consider that item in order to make a proper decision.
Usually, the person who made a document is the best witness concerning it. If you have additional written material to present at the hearing, you must provide copies of the documents to the Hearing Officer and to the opposing party listed on the Notice of Hearing as soon as possible. You may also fax documents to OAH. The Tribunal's fax number is: (406) 444-2689. However, the hearing officer may not consider as evidence documents or other items which the hearing officer and all parties have not received sufficiently ahead of time, so the materials can be fairly examined at the hearing.
What information does the hearing officer have about my case?
The hearing officer has only those documents sent by the UID and which were included in the hearing packet.
What if I need an interpreter?
The Office of Administrative Hearings will furnish an impartial interpreter at the hearing if you give advance notice. If you need an interpreter, call the telephone number on your Notice of Hearing immediately.
What if I need a special accommodation in order to participate in the hearing?
Persons with a disability may request a reasonable accommodation, such as a sign language interpreter, by contacting a legal secretary at the number listed on the Notice of Telephone Hearing.
Requests should be made as early as possible to allow time to arrange the accommodation.
Can I find out what the other party will bring to the hearing?
No. Each party will have the documents included with the hearing packet and any documents provided by the other party. Disclosure of the names of the witnesses prior to hearing is not required, but will likely be evident from the documents included in the hearing packet.
Don't be defensive or aggressive – Your actions and conduct will be important factors in the Hearing Officer's assessment of the credibility of your testimony.
Make written notes of anything the other party says with which you disagree – Your notes can be used to refresh your memory of certain events, but don't read from these notes word for word. Notes read into the record are hearsay evidence, and may be less believable or credible.
The Hearing Officer is not bound by earlier findings or determinations made by the Department. Since this will be your only opportunity to present your evidence, and further appeals only review testimony and other evidence introduced at this hearing, you should be ready to submit your side of the story.
7. DO I NEED EVIDENCE?
In addition to the documents you receive with your Notice of Telephone Hearing, you may need other written evidence to help your case. Written evidence includes letters, time cards, medical reports, etc. You may also want to use photos, maps, charts, etc., if they help explain the facts of your case. Make sure that you are able to explain who prepared the written evidence, its purpose, and how it helps your case. If you need records that are not available to you, ask OAH for a subpoena. If you use written statements or letters at your hearing instead of first-hand testimony from those individuals, those written statements or letters may not be as persuasive to the Hearing Officer as first-hand testimony. IMPORTANT: If you have written evidence you want to use in the hearing, you must provide it to the OAH and to the other parties involved in the hearing before the time set for the hearing. Their names and addresses are shown on the Notice of Hearing. If you fail to provide copies of your written evidence to the other party or parties before the hearing, the Hearing Officer may decide not to consider your evidence.
Are Video or Audio Recordings Allowed As Evidence?
Yes. The party submitting the evidence must contact OAH to determine whether the evidence can be played on OAH equipment or whether the requesting party must provide the equipment to play the recorded material at the hearing. The party must also submit the recording(s) as part of the record. The material will be marked as an exhibit and will be kept with the hearing file. Recordings must also be provided to other interested parties and be playable.
Accuracy of reproduction is always important when pictorial evidence, such as a videotape, is presented at a hearing. The party offering the videographic evidence must establish that the pertinent parts of the videotape are a reasonably accurate representation of the subject pictured. Where the tape is offered despite the fact that no witness actually viewed the events portrayed on the videotape may be authenticated based upon 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 recording show. An example of this category would be a videotape from an unmanned surveillance camera.
8. HOW DO I GET WITNESSES TO TESTIFY?
Before you ask witnesses to appear at the hearing, be sure their testimony is necessary. Talk to them first. Find out what they know. Generally, you will want witnesses who have first-hand knowledge of the facts of your case. If a witness will simply repeat what others will say, or they don't know anything about your case, the Hearing Officer might not allow them to testify. If you need witnesses to help you explain your case, contact them as soon as possible. Be sure they are available at the time set for the hearing. If they are not willing to appear at the hearing, but their testimony is necessary, ask the Office of Administrative Hearings for a subpoena. You must make your request as soon as possible. You may obtain three (3) subpoenas. If you want more, you will be required to explain why the witness or document(s) are needed for your case. You must provide the name and address of the witness or of the person who has the document(s).
Upon request, we will mail you a blank subpoena. You must complete the subpoena and have it delivered to the witness. Request subpoenas at least one week in advance of the hearing to allow adequate delivery time. Admin R. Mont. 24.11.330
OAH will consider the need and importance of the testimony or other evidence in ruling whether it will issue a subpoena. For example, if five people observed the same event and you request subpoenas for all five of them, the OAH may only issue subpoenas for one or two of those people in the case.
9. WHAT IS A BURDEN OF PROOF?
At an unemployment appeal hearing, the parties have to prove certain things in order to win their case. This is called the Burden of Proof.
In a discharge case, the employer has the burden to establish that the claimant committed work-related misconduct. Misconduct generally means a willful or wantonly negligent violation of the employer's standards of behavior for its employees or disregard of the employer's interest. Click here for a full definition of Misconduct.
The employer must show specific details about how and when the claimant violated the employer's standards of behavior or disregarded its interest. The claimant needs to explain why he or she believes his or her conduct did not violate the employer's standards of behavior or did not disregard the employer's interest.
In a voluntary quit case, the claimant must show good cause to quit. Good cause means compelling reasons arising from the work environment that the claimant told the employer about and gave the employer time to correct before leaving. The claimant must provide details about what caused him or her to quit. The claimant needs to show that he or she had no reasonable alternative but to quit his or her job. The employer may dispute that the claimant left for good cause.
Your legal issue is shown on your Notice of Telephone Hearing. If your case does not involve a discharge or voluntary quit as shown above, the Hearing Officer will explain at the hearing what you must prove. After all the evidence has been presented, the Hearing Officer will close the hearing. A written decision will be mailed to the parties after the hearing.
In cases involving issues other than a separation from employment, the party opposing an action by the UID has the burden of proof.
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. If a discharge has taken place, the employer bears the burden of establishing that the discharge was for misconduct. The party who has the burden of proof will not prevail if they do not meet that burden. With respect to most issues in an unemployment insurance hearing, the burden to be met is "the preponderance of the evidence."
10. WHAT IF I AM UNABLE TO ATTEND THE HEARING?
Can I request a postponement?
All hearings must be completed so that the hearing officer can issue a decision within 30 days from the date the appeal was filed. The party requesting the postponement must show good cause for the delay which will only be granted if the schedule allows for the hearing to still meet the 30-day requirement. If the party requesting the postponement wants a different date that would extend beyond the 30-day requirement, it must show clear and convincing evidence of some extraordinary circumstances justifying the delay. In no case will the hearing be postponed beyond 45 days. ARM 24.11.320.
If you cannot attend the hearing on the date and time listed on the Notice of Hearing, call OAH immediately at the telephone number on the Notice of Telephone Hearing to request a postponement. The hearing may be postponed on a showing of good cause. Factors that will be taken into account when considering whether to grant or deny a postponement request are:
whether the request is reasonable,
whether the circumstance causing the request is beyond the control of the requesting party,
whether failure to grant the postponement would cause undue hardship to the requesting party,
the potential inconvenience to other parties and witnesses,
the need to decide cases in a timely manner,
the time and date that the postponement request was made, and
the number and reason for any prior postponement requests made by either party.
What happens if I am late for the hearing?
If you filed the appeal and you are not available when the Hearing Officer calls you, the case may be decided without you. If the appeal was filed by another party, the Hearing Officer may begin the hearing without you. If you become available before the hearing is over, you may join the hearing in progress. The Hearing Officer will summarize what happened before you arrived.
11. WHAT IF I NEED AN ACCOMMODATION:
If you need assistance to participate in the hearing because of speech, hearing, language or other special needs, immediately call or have someone call the OAH at 406-444-4662 or TTY (406) 444-0532/Relay Service (800) 253-4093 so arrangements can be made to assist you.
This Department complies with the Americans with Disability Act. If you require special assistance due to a disability, as defined in the Act, please contact the OAH office as soon as possible.
12. WHAT HAPPENS AT THE HEARING?
Tip: watch the video called "How to Prepare for your UI Hearing"
Be prompt. If your hearing is by telephone, you must be at your contact telephone number for the call.
Tardiness. If you filed the appeal, and you do not appear at the time of hearing or are not available to take the call within 15 minutes after the hearing starting time, the Hearing Officer will allow the other parties and witnesses to leave. Even if you are available later, the hearing cannot be held if the other side is not present. If the appeal was filed by another party, the hearing will proceed on schedule without you.
If you do not attend. If you are the person who appealed and you do not participate in the hearing, the Hearing Officer may dismiss the appeal or uphold the appealed decision. If you are not the person who appealed and you choose not to attend, the hearing will proceed, and you will not have a later chance to present your case. Admin R. Mont. 24.11.320(5). If you miss the hearing, the Hearing Officer's decision will explain how you can appeal the decision or dismissal to the Montana Board of Labor Appeals.
Representation. Most parties appear without an attorney or other representative. The Hearing Officer will explain hearing procedures and safeguard the rights of all parties during the hearing.
Hearing procedure. At the time of the hearing, the interested parties will be together, either by telephone or in person. The Hearing Officer will introduce documents or other material evidence. The Hearing Officer will explain the hearing procedures and issues to be decided. Each person who gives testimony will be under oath, and all the testimony will be recorded. You will have an opportunity to testify, and you or your representative will have an opportunity to ask questions of witnesses who testify. At the end of the hearing, the Hearing Officer will allow you to make a closing statement to explain your position.
Assistance at the hearing. The Hearing Officer has a duty to provide a full, fair, and courteous hearing to all parties. The Hearing Officer will control the hearing to prevent intimidation or discourtesy and will assist you when necessary in presenting your case. If you are taken by surprise or confused about what to do next, ask the Hearing Officer for help. Please remember, however, that the Hearing Officer must exclude evidence that is repetitious or not relevant.
All of the witnesses for one side will testify first. Then all of the witnesses for the other side will testify.
Each party will get to object to the Hearing Officer considering the evidence already in the file. Each party will get to submit its own evidence and object to the other party's evidence. The Hearing Officer will decide what evidence will be considered.
After each party has presented all of its testimony and evidence, the Hearing Officer will give the party who went first a chance to present additional testimony and evidence. That will be limited to rebutting what the party who went second presented. No new matters may be raised.
After the Hearing Officer has taken the first party's rebuttal testimony and evidence, and all parties have had the opportunity to question the rebuttal witnesses, the Hearing Officer will decide whether all testimony and evidence has been presented.
The Hearing Officer will either allow further testimony and evidence, or call for closing statement(s). Think about the evidence and testimony presented. Tell the Hearing Officer at the end of the hearing why he/she should rule in your favor. Be brief and to the point.
Finally, it is important to remember that the hearing is held to gather facts, not to get into an argument. Arguing, or getting angry during a hearing, prevents you from clearly stating the facts of your case. You will give a much better presentation if you stay calm and do not allow emotions to cloud the issues.
13. WHAT HAPPENS AFTER THE HEARING:
The final decision will be mailed to the parties as soon as possible after the hearing. We cannot give the results of the hearing over the phone. The decision will state the important facts of the case, the legal conclusions and reasons for the decision, and an order stating the result of the decision. The decision may disqualify the claimant from receiving unemployment insurance benefits or may allow the claimant benefits that may be chargeable to the employer. You can appeal the Hearing Officer's decision to the Montana Board of Labor Appeals. Instructions for appealing are given at the end of the Hearing Officer's decision under the heading of "Appeal Rights." The claimant should continue to file their biweekly unemployment claims while awaiting the decision in their case.