Back to Federal guidance
Third edition of lower-level unemployment appeals quality handbook
Summary ETA sent state workforce agencies the third edition of its handbook for measuring the quality of lower authority unemployment insurance appeals. The attached handbook sets review procedures and criteria for evaluating appeals decisions. ETA lists this letter as Active.
Document
Federal guidance
Agency
U.S. Department of Labor, Employment and Training Administration (ETA)
Document number
UIPL No. 20-11
Date issued
June 22, 2011
Status
Active
ETA lists this letter Active as of 2026-10-24, and the PDF prints “Continuing” in its expiration field.
Status last verified October 24, 2026
Apply this to your situation
This page explains the general guidance. Ask about your specific situation and see what current federal labor law says, with citations.
About this page: The full text below is the official document from U.S. Department of Labor, Employment and Training Administration (ETA). Ezel adds the plain-English summary and tracks the document's status. The official source linked on this page is authoritative for any reliance.
UIPL20-11ACC.pdf (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2011/UIPL20-11ACC.pdf)
CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION UI Appeals
ADVISORY SYSTEM CORRESPONDENCE SYMBOL
OUI - DUIO
U.S. DEPARTMENT OF LABOR
DATE
Washington, D.C. 20210 June 22, 2011
ADVISORY: UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 20-11
TO: STATE WORKFORCE AGENCIES
FROM: JANE OATES /s/
Assistant Secretary
SUBJECT: Revised Employment and Training (ET) Handbook No. 382, Handbook for
Measuring Unemployment Insurance Lower Authority Appeals Quality
1. Purpose. To transmit the third edition of ET Handbook No, 382, Handbook for Measuring
Unemployment Insurance (UI) Lower Authority Appeals Quality.
2. References. Social Security Act (SSA), Section 303(a)(3); Code of Federal Regulations
(CFR), 20 CFR Part 650 – Standard for Appeals Promptness; A Guide to Unemployment
Insurance Benefit Appeals – Principles and Procedures, USDOL, 1970; Unemployment
Insurance Program Letter No. 26-90; Requirement that UI Appeals Hearings Be Simple, Speedy,
and Inexpensive.
3. Background. Section 303(a)(3), SSA, requires state laws to provide for an opportunity for a
fair hearing before an impartial tribunal for all individuals whose claims for UI are denied. ET
Handbook No. 382 provides the Federal criteria used to measure the quality of appeal hearings
conducted in the states.
4. OMB Approval. There are no reporting instructions in this Handbook; therefore, OMB
approval is not required.
5. Action Requested. Administrators are requested to distribute this handbook to appropriate
staff. This Handbook will be available electronically at: http://wdr.doleta.gov/directives under
Employment and Training Handbooks.
6. Inquiries. Address all inquiries to the appropriate Regional Office.
7. Attachment(s). ET Handbook No. 382
RESCISSIONS EXPIRATION DATE
None Continuing
Handbook382.pdf (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2011/Handbook382.pdf)
ET Handbook No. 382
Third Edition
March 2011
HANDBOOK
FOR
MEASURING
UNEMPLOYMENT INSURANCE
LOWER AUTHORITY APPEALS
QUALITY
U.S. DEPARTMENT OF LABOR
EMPLOYMENT AND TRAINING ADMINISTRATION
OFFICE OF UNEMPLOYMENT INSURANCE
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
TABLE OF CONTENTS
I. INTRODUCTION.....................................................................................................................................................3
II. QUARTERLY EVALUATIONS .............................................................................................................................6
III. ANNUAL REVIEW OF STATES' QUARTERLY SELF-EVALUATIONS.........................................................9
IV. CRITERIA FOR MEASURING THE QUALITY OF LOWER AUTHORITY APPEALS HEARINGS AND
DECISIONS
1. Pre-hearing/pre-testimony explanation ..........................................................................................................11
2. Opening statement..........................................................................................................................................13
3. Exhibits .............................................................................................................................. ..........................14
4. Witnesses .......................................................................................................................................................16
5. Order of testimony from each witness............................................................................................................18
6. Opportunity to question own witness(es) .......................................................................................................19
7. Clear language................................................................................................................................................21
8. Single point questions ....................................................................................................................................22
9. Clarification of statements, which include conclusions .................................................................................24
10. Confrontation ................................................................................................................................................26
11. Cross-examination.........................................................................................................................................28
12. Repetitive and/or irrelevant testimony ..........................................................................................................30
13. Leading questions..........................................................................................................................................31
14. Control of interruptions.................................................................................................................................33
15. Off the record ................................................................................................................................................35
16. Interpreters ....................................................................................................................................................37
17. Continuances .................................................................................................................................................39
18. Closing the hearing .......................................................................................................................................41
19. Hearing within scope of notice......................................................................................................................42
20. Gratuitous comments.....................................................................................................................................44
21. Attitude .............................................................................................................................. ..........................45
22. Bias and prejudice .........................................................................................................................................47
23. Obtain reasonably available evidence ...........................................................................................................49
24. Issue(s) clearly stated ....................................................................................................................................51
25. Findings supported by substantial evidence ..................................................................................................52
26. Findings of fact .............................................................................................................................................53
27. Required conclusions ....................................................................................................................................55
28. Logical reasoning ..........................................................................................................................................56
29. Form, style and organization .........................................................................................................................57
30. Decision states legal effect............................................................................................................................59
31. Understandable decision ...............................................................................................................................61
V. ANNUAL REVIEW
1. Notice of hearing.............................................................................................................................................63
2. Finality date and further appeal rights.............................................................................................................65
FACSIMILE OF Evaluation score sheet .....................................................................................................................67
APPENDIX A – Sample Selection..............................................................................................................................68
APPENDIX B – Appeals Principles and Procedures ..................................................................................................84
-2- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
I. INTRODUCTION
“The right to appeal from a determination is a specific right, and it is essential all State
unemployment compensation agencies provide the means for ensuring that hearings on appeals
shall be fair to all persons concerned.” Benefit Payment Procedures, Memorandum VII, Part I,
Appeals Procedures; Social Security Board, August 2, 1938
The U.S. Department of Labor’s (USDOL) responsibility for the oversight of the quality of
states' unemployment compensation (UC) appellate processes is grounded in the Social Security
Act (SSA). Under Section 302(a), SSA, the Secretary of Labor certifies states whose
unemployment laws are approved under the criteria for certification under the Federal
Unemployment Tax Act (FUTA) as eligible for an administrative grant for the “proper and
efficient administration” of their UC law. Section 303(a)(1), SSA, requires states to have “such
methods of administration…as are found by the Secretary of Labor to be reasonably calculated to
ensure full payment of unemployment compensation when due.” Section 303(a)(3), SSA,
conditions this certification on state law providing “an opportunity for a fair hearing, before an
impartial tribunal, for all persons whose claims for UC have been denied.”
These provisions establish the Secretary of Labor's authority and responsibility for oversight of
states' UC appellate processes. A need to measure the quality of lower authority appeals
logically follows from this authority and responsibility. The criteria in this Handbook are
derived from the above provisions of Federal law, as well as traditional concepts of what
constitutes due process. States must meet these criteria to assure their appeals operations
conform to and comply with Federal law.
From the beginning of the UC program, Federal officials recognized the mandate of these
provisions to require that the appeal and hearing procedures account for the circumstances of
unemployed workers and the special needs of the program. Appeal hearings must be held and
disposed of in a timely manner to ensure payment is made “when due” to lessen the hardship of
unemployment. The hearings must be fundamentally fair, recognizing the interests of the
claimants, the employers, and the state agencies in making accurate UC decisions.
The need to conduct quality hearings while also disposing of them in a timely manner is reflected
in the measures established to evaluate states’ appeals performance. No single measure of a
state’s lower authority appeals operation tells the whole story. However, examining state
performance using the three measures below, when considered together, gives a good overview
of a state’s lower authority appeals performance:
o Time Lapse is a measure of how old a case was when decided,
o Case Aging is a measure of how old the cases are that have not been decided, and
o Lower authority quality is a measure of whether a “fair hearing” was provided using
criteria established in this Handbook.
-3- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
As set out in Unemployment Insurance Program Letter (UIPL) No. 26-90, appeal hearings must
be simple, speedy, and inexpensive. This is the foundation for ensuring that appeal and hearing
procedures are sound and practical, as well as fair, to claimants and to other interested parties.
Simplicity in hearings assures that parties may know and understand their rights, as overly
formal and technical procedures place undue burdens on parties. Speed in conducting and
disposing of hearings helps to assure the prompt payment of benefits when due. Inexpensive
hearings means no individual will be deprived of fundamental rights merely because s/he cannot
afford representation or to pay for other expenses in the pursuit of these rights. Inexpensive also
means that the state only expend the amounts necessary to properly and efficiently dispose of its
appellate workload. Also see Appendix B, A Guide to Unemployment Insurance Benefit Appeals
– Principles and Procedures.
The appeal hearing must be fair both in form and substance. In addition, the hearing must
appear fair both to the participants and to any casual observer. A hearing that is technically fair,
but gives the appearance of unfairness, is unfair in practical effect.
The Lower Authority Appeals Quality Criteria set forth in this handbook is a culmination of
efforts dating back to the mid 1970s in measuring performance and assuring state lower authority
appeals operations provide a “fair hearing.” The annual peer review was established in the mid
1990s, and some states began incorporating the ETA Handbook 382 criteria in staff performance
standards in addition to using the criteria as a training tool.
This third edition of the ETA Handbook 382 further clarifies each of the thirty-one criteria and
updates the reference notes to strengthen consistency. Since the previous revision, many
changes have occurred in the administration of state UC appeals operations. The number of
states conducting telephonic hearings has increased and there is more automation in appellate
procedures. This handbook is revised to more accurately reflect recent changes to appellate
processes.
While some things have changed in the handbook, the quarterly self-reviews and the annual
USDOL reviews remain in this revision. Readers will note however, that the “due process”
elements are now streamlined to five core areas with an explanation about how these areas affect
the review of due process.
The three components of the system for measurement of the quality review of the states' lower
authority appellate processes are described below.
Component 1 – State Self-Evaluation. This component measures the overall quality of the
case. The state evaluator determines if "good," "fair,” "unsatisfactory," or "did not occur"
should be assigned to each of the 31 criteria. Then, a percentage score for the entire case is
calculated.
-4- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
Component 2 – Identification of Number of Cases Failing "Due Process" Elements. This
component is an optional evaluation of the previously scored cases to determine if an
"unsatisfactory" score was given on any of the 5 criteria #10, #11, #19, #22, and #26 which
address the fundamental elements of "due process" and "fair hearing". Since these 5 criteria
are part of the 31 criteria scored in Component 1, no new scoring is necessary. Component 2
is strictly used as a management information measure to identify cases where the hearing
officer needs to improve on the "due process" component(s) or where a state’s practice may
negatively impact scoring.
Critical Fair Hearing and Due Process Elements:
o Confrontation (Criterion #10) – an opportunity for confronting all opposing
witnesses to know all the evidence presented by opposing parties.
o Cross-examination (Criterion #11) – an opportunity to question opposing
witnesses.
o Hearing within scope of Notice (Criterion #19) – to limit the hearing to the
issue(s) set forth in the hearing notice. Note: There are instances when issues can
be added to the hearing if all parties agree.
o Bias and Prejudice (Criterion #22) – the hearing officer must conduct the hearing
in a fair and impartial manner.
o Findings of Fact (Criterion #26) – the hearing officer must include all findings of
fact necessary to resolve the issues and support the conclusions of law in the
decision.
An “unsatisfactory” score in any of the five critical fair hearing and due process elements
does not automatically result in a failing score for the hearing, but it should raise a
management concern that an important aspect of the hearing may not have met an important
quality standard. However, only a hearing with a total score below 85% is considered not to
have met the minimum quality standard.
Component 3 – Annual Review. Each year USDOL coordinates with states to conduct a peer
review of subsample cases that states have already evaluated. The annual review also
evaluates the state's hearing notices and information provided to the parties about further
appeal rights.
All states with annual workloads below 40,000 decisions in the prior calendar year will review a
minimum of 20 randomly selected cases from each of the four quarters of the fiscal year (see
Appendix A of this handbook for sampling methodology). This is the minimum sample size
needed for statistical validity of the results. States with annual workloads exceeding 40,000
cases are required to select a 40 case sample per quarter to assure statistically reliable results.
The determination of sample size (either 20 or 40 cases per quarter) for each state for the
calendar year will be made prior to end of the first quarter of each calendar year, based on the
state’s workload during the prior calendar year. States will use the ETA 9054L – Lower
-5- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
Authority Appeals Time Lapse report to obtain the workload counts. The total completed
decisions (c1) from the 9054L report is used to calculate a state’s calendar year workload. See
ET Handbook 401, Unemployment Insurance Reports Handbook, Section V for the 9054L
report.
The hearing officer’s responsibility is to exercise good judgment in creating and developing a
record about the human experiences in a wide variety of workplace settings. The need to provide
timely hearings and accurate decisions is a challenge for every state agency. It would be
impossible to develop criteria upon which all reasonable persons can agree. This instrument
attempts to minimize variances in scoring among reviewers for similar events or non-events for
each of the elements to maximize scoring consistency. Consistent scoring repeated over time is
expected to increase the reliability of the results obtained from the use of this instrument.
Evaluators and other observers should keep in mind that hearing officers are frequently required
to react to a situation and make an immediate ruling, without the luxury of time to reflect on all
cases.
II. QUARTERLY EVALUATIONS
A. SAMPLING
A random sample of 20 or 40 cases (depending on state workload) will be drawn and evaluated
each quarter. These samples are not stratified. The evaluation should be completed and the
results reported no later than the 20th day of the second month following the end of each quarter
(e.g., for the quarter ending September 30, report no later than November 20). The sample
should be drawn from the cases decided in the previous quarter. For example, in October, cases
decided between July 1 and September 30 will be evaluated.
States which maintain automated records of appeals decisions may draw the quarterly sample
using either random file or systematic sampling methods. States which do not maintain
automated records of appeals decisions must use a manual systematic sampling approach.
Appendix A provides more complete and detailed information about sampling.
The three skeleton data elements (see ET Handbook 402, Appendix B for descriptions) for each
case selected must be entered in the electronic reporting system by the 15th day of the first
month of each quarter, so that the validity of the sample size and sampled universe can be
confirmed by USDOL.
B. ASSEMBLY OF CASE FILES
A case file for each case in the sample should be assembled. This file should contain, at a
minimum, a copy of: (1) the determination that was appealed, (2) the appeal, (3) the notice of
hearing, (4) the recording of the hearing, (5) all exhibits introduced at the hearing, and (6) the
hearing officer's decision. The files for the cases in the sample should be assembled as soon as
-6- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
possible after the end of the quarter so that the evaluation of the cases can be completed prior to
the required reporting date.
C. CASE EVALUATION AND SCORING
The case evaluations should be done by individuals who are thoroughly familiar with the lower
authority appeals process and the elements of this handbook, preferably individuals who are
experienced supervisors of hearing officers. It is expected that the evaluator will need to give
full attention to this activity with a minimum of interruptions. Interruptions during the
evaluation of an individual case frequently necessitate listening to the recording a second time in
order to be able to accurately assign scores to the individual criteria. The evaluator(s) should
strive to be consistent in scoring each case, and if a state uses multiple evaluators, efforts should
be made to achieve consistency among them. Each evaluator should exercise good judgment in
deciding how many cases can be effectively evaluated per day and how much time should elapse
between case evaluations to ensure that similar cases will be scored consistently.
After making note of the time on the score sheet, the evaluator should examine the appeal filed,
the notice of hearing, listen to the recording of the hearing, examine any exhibits, read the
decision, and then complete a score sheet for each case being evaluated.
Steps an evaluator should follow for completing the score sheet (ETA 9057) are:
o The score sheet must be fully completed as it will be used as the supporting document for
electronically reporting the results of the evaluation.
o Complete the header information on the score sheet (ETA 9057). Specific instructions
about the four data elements in the header are in Section V-7-4 and V-7-5 of Handbook
401.
o Score each of the thirty-one criteria by marking the appropriate score in the columns
provided.
o Items 33 through 38 should be recorded and reported:
- In Item 33, indicate whether the Hearing Officer's decision resulted in the
potential allowance or denial of benefits;
- In Item 34, indicate whether the decision affirms, reverses or modifies the
determination that was the subject of the appeal;
- In Item 35, record the date the decision was mailed to the parties;
- In Item 36, record the date the decision was implemented. More specifically, the
date all payable benefits were released, the date benefit payments were stopped or
other action called for by the decision that was completed by the agency;
- In Item 37, record if all the necessary case materials were available to the
evaluator, if one or more necessary documents were missing, or if the recording
of the hearing was unavailable or inaudible. If the decision is missing and/or the
recording is missing or inaudible, the case should not be scored, but whatever data
is available for Items 33 through 38 should be recorded and reported. Cases that
-7- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
are not scored because of loss of the decision or the recording will not be included
in the calculation of the percentage of cases "passing" for the quarter or the year.
- In Item 38, record the time in minutes, from start to finish, that was used by the
evaluator to conduct the evaluation including the time used to complete the ETA
9057.
Note: ANNUAL REVIEW (AR1) - NOTICE OF HEARING and ANNUAL REVIEW
(AR2) - FINALITY DATE AND FURTHER APPEAL RIGHTS criteria need not be scored
by State evaluators during the regular quarterly self-evaluation process. These criteria will be
scored as part of the annual federal review of the state's quarterly self-evaluations.
o To determine the percentage score for a case, first calculate the sum of the scores
recorded in each of the "Good", "Fair", "Unsatisfactory", and "Did Not Occur" columns
of the score sheet. Second, subtract the sum of the "Did Not Occur" scores from 192
(maximum possible total points) to derive the number of points possible for the particular
case. Third, add the points scored in the "Good" column and the points scored in the
"Fair" column. Fourth, multiply the result of the third step by 100, then divide by the
result of the second step. This result is the percentage score for the case. (See formula
below.) Even though the percentage score will be electronically calculated when the data
is reported to DOL, evaluators should make this calculation so they will have immediate
knowledge of the quality of the case, and so it can be used later as an additional check of
the accuracy of the data entry.
Total Points1 X 100
= Percentage Score
Possible Points2
1. Total Points = Total "Good" + Total "Fair"
2. Possible Points = 192 - "Did Not Occur" points
The electronic reporting system will automatically calculate the percentage score for the case
after the score for each criterion has been entered. It will also identify any Critical Fair Hearing
& Due Process Criteria that were scored "Unsatisfactory." Evaluators should be mindful that
they need to complete the evaluations in time for the data to be electronically reported no later
than the 20th day of the second month following the end of each quarter. For example, for the
quarter ending September 30, report no later than November 20.
D. REPORTING
The data recorded on the evaluation score sheets (ETA 9057) will be entered in the state's
electronic reporting system and transmitted to USDOL’s required unemployment insurance
-8- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
reports (UIR) database. The results of each quarterly evaluation are to be electronically recorded
for transmittal as described in the latest edition of Unemployment Insurance Reports Handbook,
ET Handbook 401 and UIR Users' Manual, ET Handbook 402. The evaluations should be
completed and the results entered in the database and transmitted to USDOL no later than the
20th day of the second month following the end of each quarter. For example, for the quarter
ending September 30, report no later than November 20.
III. ANNUAL REVIEW OF STATES' QUARTERLY SELF-EVALUATIONS
The purpose of the annual appeals review is to ensure consistent interpretation of the criteria and
guidelines for appeals quality set forth in this handbook and consistent reporting on the Lower
Authority Appeals Quality Review report, ETA 9057. It is also used to identify areas where
training or technical assistance may be needed.
A two week, annual review of the states’ quarterly self-evaluations is conducted once a year,
usually mid-to-late March or early April. Random samples of the cases evaluated by the states in
the previous calendar year are reviewed. The review is done at the National Office (NO) by a
team of volunteer state appeals experts and may include selected regional office staff.
The NO asks the Regional Offices (ROs) to invite states to nominate one of their Lower
Authority Appeals Chief, supervisors, or key appeals staff to serve on the team. From the
nominees, individuals from different states are selected. It has been the practice to select, at the
least, five individuals who have previously served on the panel and at least five individuals who
have not served. This mix of experienced and new review team members promotes continuity
from one year to the next and provides, over time, an opportunity for all states to benefit from
participating in the process.
The Review Team scores a subsample of a state’s appeal cases against the thirty-one criteria, and
they also score aspects of the notices of hearing and information about further appeal rights. The
states of the selected volunteers are reimbursed by USDOL for travel expenses incurred for the
two weeks spent in Washington, D.C. conducting the review.
As soon as a state has drawn and "locked the skeleton fields" for its quarterly sample for the
quarter ending the calendar year (no later than January 15), the subsample for the annual review
will be drawn automatically. This subsample will be either 10 or 20 cases depending on whether
a state’s quarterly sample was 20 or 40. USDOL will use the UIR electronic reporting system to
determine which of a state’s quarterly sample cases are required for the annual review.
Each case sent for the Annual Review should include copies or facsimiles of any materials
and/or information routinely sent to the parties to appeal from the time the appeal is filed through
and including the time the decision is mailed, plus copies of: (1) the determination that was
appealed, (2) the appeal, (3) the notice of hearing, (4) the recording of the hearing; care should
be taken to ensure that the copied recording is an accurate and complete (only one hearing per
-9- March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
copied recording), (5) all exhibits introduced at the hearing, (6) the hearing officer's decision,
and (7) the score sheet completed by the state evaluator. Following the review process, these
materials will be destroyed unless requested by the state for return.
IV. CRITERIA FOR MEASURING THE QUALITY OF LOWER AUTHORITY
APPEALS HEARINGS AND DECISIONS.
The criteria for evaluating the quality of hearings and decisions are set forth in their entirety on
the following pages. The first thirty-one of these criteria will be used by the states for their
quarterly self-evaluations. There are two additional criteria addressing notices of hearing and
information about further appeal rights that will also be evaluated.
- 10 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERIA FOR UI LOWER AUTHORITY APPEALS HEARINGS
CRITERION 1: PRE-HEARING/PRE-TESTIMONY EXPLANATION.
PURPOSE - At the start of the hearing, the hearing officer should clearly explain the procedures to be
followed. The elements shall be covered in the recorded prehearing explanation or opening statement. The
explanation must be clearly stated and delivered in an understandable manner.
SCORING SEGMENT
Good (6): After recording began and before testimony was taken, the hearing officer clearly
explained the hearing procedures. This explanation included: (a) the order of testimony,
(b) the right to question witnesses, and (c) an opportunity for each of the parties to ask
questions about the hearing process or procedures.
Fair (3): The hearing officer allowed an opportunity to ask questions about the hearing process or
procedures, but did not explain all of the elements (a) through (c).
Unsatisfactory (0): The hearing officer did not explain the procedures or did not allow an opportunity to ask
questions about the hearing process or procedures.
Did not occur (6): A "Did Not Occur" score should be given if it is clear from the record that the parties
and/or their representatives were fully familiar with the UI hearing process and the
hearing officer omitted the explanation for this reason.
REFERENCE NOTES - CRITERION 1.
The intent of this criterion is to ensure that the parties understand how the hearing will be conducted, the rights
and opportunities they will have to participate in the hearing, and to allow the parties to ask questions about the
process or procedures before taking testimony. The explanation should be on the record since this minimizes
the possibility of a remand if a party on further appeal asserts lack of understanding of the hearing process to
explain the failure to fully present his/her case.
A “Good” score is achieved when the recording contains an explanation of the hearing procedures which
includes an explanation of the order of testimony and the right to cross examination, and provides the parties an
opportunity to ask questions about the hearing procedures. To achieve a “good” score in cases where only one
party appears and there are no witnesses for that party, the hearing officer should explain the hearing process
and ask if there are any questions before proceeding with the hearing. No deduction will be made when the
hearing officer explained the procedures off record but obtains the parties assent on record that the procedures
were explained consistent with (a) through (c).
- 11 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A “Fair” score is given when the hearing officer employs an opening statement in such a way that makes it
difficult for the parties to understand or assimilate, such as a rapid or “machine gun” statement, or when the
hearing officer explained the procedures off record and only obtains the parties assent on record only that the
procedures “were explained,” but does not obtain acknowledgement that items (a) through (d) were explained
and that the parties had no further questions about the hearing procedures.
An "Unsatisfactory" score will be given if the hearing officer did not identify all the procedure elements or if
the explanation is not on the record.
- 12 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 2: OPENING STATEMENT.
PURPOSE - The opening statement should include the identification of the parties, those participating in the
hearing, the date, the place of hearing, and the hearing officer. The hearing officer should also verify the
parties’ mailing addresses.
SCORING SEGMENT
Good (6): Before taking testimony the hearing officer identified: (a) himself or herself, (b) the
parties and/or representatives participating in the hearing, (c) verification of the parties’
address, (d) date of the hearing and place (or that it was a telephone hearing), (e) the
determination appealed and the issues that would be considered, and (f) if the parties
had any additional witnesses or representation not already identified.
Fair (3): The hearing officer omitted one or two of the elements (a) through (f).
Unsatisfactory (0): The hearing officer omitted three or more of the elements (a) through (f).
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 2.
The intent of this criterion is to ensure that the hearing officer establishes a complete record of the hearing
including identification of the hearing officer, the parties and their witnesses, attorneys or representatives, and
verification of their addresses to ensure they receive a copy of the decision issued in the appeal. The hearing
officer must identify the issues to be considered at the hearing. The hearing officer should explicitly state
whether the hearing is being conducted in person or by telephone. The hearing officer should ask whether any
one else will be participating in the hearing, other than the parties, to verify on the record that the parties are
proceeding without additional witnesses or representation.
A “Good” score is achieved when the hearing officer provided and obtained the information to satisfy (a)
through (f).
A “Fair” score is given if the hearing officer omitted or failed to provide or obtain one or two of the items listed
in (a) through (f).
An “Unsatisfactory” score is warranted when the hearing officer omits three or more of the items listed in (a)
through (f).
Criteria 1 & 2 are closely related and it is permissible for the hearing officer to intermingle the elements of the
two criteria, if all necessary elements of both are present.
- 13 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 3: EXHIBITS.
PURPOSE - The hearing officer should handle exhibits correctly by properly identifying the exhibits for the
record, manage any objections, and rule on any document admissibility concerns.
SCORING SEGMENT
Good (6): The hearing officer correctly handled exhibits in that s/he:
(a) described and marked all exhibits;
(b) presented parties with an opportunity to review the exhibits and offer objections;
(c) authenticated evidentiary exhibits (to the extent possible) where questionable or
challenged;
(d) received all competent, relevant and reasonably available exhibits;
(e) ruled on the admissibility of any documents offered as exhibits and gave an
explanation if s/he denied admission.
Fair (3): The hearing officer received all competent relevant and reasonably available exhibits but
failed to satisfy two of the requirements from (a) through (e) to achieve a “Good” score.
Unsatisfactory (0): The hearing officer failed to satisfy three or more of the requirements from (a) through (e)
to achieve a “Good” score.
Did not occur (6): There were no exhibits tendered, marked or introduced, or no documents made reference
to in statements or testimony that should have been marked or introduced.
REFERENCE NOTES - CRITERION 3.
An exhibit is a document, record, or other object which is made a part of the record or is formally introduced as
evidence. Overall, the intent of this criterion is to ensure that the hearing officer builds as complete a record as
possible including all competent, relevant, and material exhibits that are available; that these exhibits are
properly described, authenticated, marked and entered into the record; and that the parties are made aware of
their contents and provided with the opportunity to object, explain, or rebut.
Difficulty in scoring this category stems from variations in state practice regarding which documents are
required, or permitted, to be made a part of the record of an appeal. Some state procedures require that the
entire agency file be made part of the record as part of the opening of the hearing, some state procedures require
that only the jurisdictional documents be marked as an exhibit; and some state procedures require exhibits to be
marked and identified only when a party offers them as evidence or if the hearing officer intends to rely on them
as part of the decision.
In reviewing a case, the scorer should make a distinction between jurisdictional documents marked for
identification at the beginning of a hearing and documentary or other evidence that a party offers to prove its
case or that the hearing officer may rely upon in making his or her decision. Identification and jurisdictional
- 14 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
documents (such as the benefits determination appealed, the request for hearing and the notice of hearing) are
not marked as evidence to prove the case but to establish the record of appeal. As such, marking these
documents does not require the technicalities required for admission of documentary evidence.
When a hearing is conducted by telephone, the hearing officer must confirm that an exhibit has been received
by the party against whom it is offered. If the exhibit has not been received, the hearing officer must use good
judgment in evaluating whether a continuance should be offered. If the exhibit is a party’s only evidence on a
particular point, and that point will be crucial in the ultimate decision to be made, it is recommended that a
continuance be offered depending on the reason why the party did not send the document, or why it was not
received. However, if the item is merely cumulative of other evidence, or not crucial to the ultimate decision
that will be reached, there is no need to continue the hearing. Additionally, a party may waive his/her right to
see the exhibit and allow the hearing officer to read its content or describe it.
All exhibits should be clearly described on the record and marked with an exhibit number or otherwise
identified. Depending on the evidence code of a state, a document may need to be authenticated by a witness.
The party against whom an exhibit is offered should be permitted the opportunity to ask questions about an
exhibit and to object to its introduction as evidence. Of course, the hearing officer should explain, before
marking an exhibit that both parties will be given an opportunity, at the appropriate time, to testify about any
exhibit. An exhibit should be marked and given its appropriate weight under the state evidence code, if it is
offered by a party on a relevant or material issue(s) of the appeal. If a party objects to an exhibit, the hearing
officer must rule upon the objection.
In order to simplify scoring of this criterion, the difference between “Good,” “Fair,” and “Unsatisfactory” is
based upon the number of elements the hearing officer meets to achieve a “Good” score.
- 15 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 4: WITNESSES.
PURPOSE - Parties and witnesses should be called and sworn, and the evidence developed, in logical order.
SCORING SEGMENT
Good (6): The order of taking testimony was reasonable and flexible depending on the
circumstances of each case. As a general rule, the party likely to have the most
information should be called to testify first. In most cases, and consistent with many
states’ laws, this means that the party with the burden of proof should testify first. In a
voluntary quit case, the claimant usually testifies first. In a discharge case, the employer
and its witnesses usually testify first.
Fair (3): The hearing officer permitted the introduction of some testimony in illogical sequence, but
it did not substantially jeopardize the organization of the hearing and the presentation of
evidence.
Unsatisfactory (0): The hearing officer did not swear in a material witness, and/or did not take evidence in a
logical order.
Did not occur (6): The evidence was submitted without witnesses or sworn testimony.
REFERENCE NOTES - CRITERION 4.
A key distinction between an adjudicatory interview and an appeal hearing is that witnesses offer sworn
testimony in a recorded setting. The intent of this criterion is to confirm that witnesses were sworn in on the
record and that the hearing was conducted in a logical and orderly manner, although the hearing officer is
permitted to exercise reasonable discretion and may be flexible dependent upon the particular circumstances of
each case.
A "Good" score is achieved when the hearing officer followed a logical order of testimony. The hearing officer
appeared to take into consideration which party bears the burden of proof and/or who possesses first hand
information in determining the order of testimony. The order produced an easy flow of information and fact
finding without the hearing officer resorting to aimless jumping back and forth between witnesses. A brief
question to a party not currently testifying, to clarify an issue or to determine whether further foundation or
explanation was necessary, will not result in point deduction. Additionally, if some special circumstance
requires a witness’ testimony be taken out of order, no point deduction is made.
A "Fair" rating should be scored when the hearing officer failed to meet the criteria for "Good" in some
instances, but in a manner which did not seriously affect the fact-finding process. However, for the most part,
the hearing officer adhered to a logical sequence of testimony.
- 16 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" rating should be scored when the hearing officer did not swear in a material witness or
lacked sound judgment in the order of testimony, thereby prolonging the hearing unnecessarily, or when
testimony jumped back and forth between witnesses and/or issues. A material witness is defined as an
individual whose testimony is relevant to the issue(s) being heard and possesses direct knowledge of the issue(s)
under consideration.
- 17 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 5: ORDER OF TESTIMONY FROM EACH WITNESSES.
PURPOSE - The evidence from each witness should be developed in a logical order.
SCORING SEGMENT
Good (3): As each witness testified, the available evidence was developed in a logical and orderly
manner, although the hearing officer was flexible as required by the circumstances.
Fair (1): The hearing officer permitted the introduction of some evidence in illogical sequence
but this did not substantially jeopardize the organization of the hearing and/or the
presentation of evidence. The hearing officer generally completed one line of inquiry
before moving on.
Unsatisfactory (0): The hearing officer did not take the evidence in logical order and sequence.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 5.
The intent of this criterion is to move the testimony of each witness to a conclusion in a logical and orderly
manner. The hearing officer must exercise responsibility and good judgment in managing the testimony of each
witness. The goal is to obtain relevant information, under time constraints, with sufficient detail pertaining to
the final incident of the issue(s) in order to render a quality decision once the hearing is closed.
A "Good" is achieved when the hearing officer exercised reasonable discretion in determining the order and
sequence of the testimony. The hearing officer directed and controlled the testimony of a witness to obtaining
material information and did not allow the witness, or a representative, to illicit information in a manner that
confuses the record. The order should produce an easy flow of information and fact finding such that it is clear
as to the specific event or incidents for which the witness is testifying.
A "Fair" rating should be scored when the hearing officer failed to direct or control the testimony of a witness
such that the witness provided information on immaterial points or an in a illogical order, or when the hearing
officer did not make sufficient efforts to direct or control the testimony provided and allowed the witness to
ramble on or allowed a representative to ask questions that were immaterial or unnecessarily prolonged the
hearing.
An "Unsatisfactory" rating should be scored when the hearing officer failed to swear in a witness, or failed to
direct or control the testimony of a witness such that it was difficult or impossible to know whether the
information the witness provided was relevant and material to the issues involved in the case.
- 18 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 6: OPPORTUNITY TO QUESTION OWN WITNESS(ES).
PURPOSE - The hearing officer must provide parties and representatives with a timely opportunity to
question their own witnesses.
SCORING SEGMENT
Good (9): The hearing officer informed the parties that they, or their representatives, could
question witnesses on the party's own behalf. When necessary, the hearing officer
assisted such party or representative in framing questions, and cautioned him or
her not to make statements or arguments.
Fair (3): Although the parties were advised that they could question their own witnesses,
the hearing officer failed to assist when appropriate; or the hearing officer did not
allow the parties to question their own witnesses in a timely manner.
Unsatisfactory (0): The hearing officer failed to provide the parties the opportunity to question their
own witnesses.
Did not occur (9): The parties did not have witnesses to question or it was not necessary to inform
them of this right, e.g., a party was represented by counsel or an experienced
representative.
REFERENCE NOTES - CRITERION 6.
The intent of this criterion is to ensure that the hearing officer has provided the parties or their
representatives the right to question their own witnesses in a timely manner, as some parties may be
unaware of this right. A timely manner means before the hearing officer moves on to take testimony from
other witnesses or the opposing party.
It is the responsibility of the hearing officer to provide the parties with assistance, as needed, and to question
witnesses in a timely and proper manner. The hearing officer must be impartial when assisting a party in
forming questions, and should avoid appearing to be an advocate for that party.
A “Good” score is achieved when the hearing officer informed the party, or their representative, of the right to
ask questions of their witnesses and allowed them to do so. When assistance was clearly needed, the hearing
officer provided it in an impartial manner.
A “Fair” score is given when the hearing officer informed a party, or its representative, of the right to ask
questions of its witnesses, and allowed the questioning but either did not offer sufficient instructions about
proper questioning techniques or failed to prevent a party from testifying during the questioning opportunity.
- 19 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" rating should be scored when the hearing offer either failed to inform the party, or
representative, of the right to ask questions of its witness, or failed to provide him or her an opportunity to do
so, or did not provide meaningful assistance when it was clear the party was unable to do so in a proper manner.
- 20 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 7: CLEAR LANGUAGE.
PURPOSE - Throughout the hearing, the hearing officer should use language that is clear and understandable,
avoiding unnecessary legal phrases and technical language.
SCORING SEGMENT
Good (6): The hearing officer's language was clear and understandable at all times, with the
possible exception of inconsequential instances. There was no unnecessary use of legal
phrases or technical language.
Fair (3): There were minor instances when the hearing officer's language was not clear and
understandable, or legal phrases or technical language was used. "Minor instances"
would be confined to those that would not have a significant bearing on the outcome of
the case.
Unsatisfactory (0): The hearing officer's language was not clear and understandable in significant and
critical areas or unnecessary legal phrases and technical language was used at critical
points in the hearing
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 7.
The intent of this criterion is to ensure that the hearing and all discussion with parties is clear and
understandable, and that the parties are not confused by legal phrases or technical language.
When it appears a party or witness does not understand what is being communicated or asked, the hearing
officer has the responsibility to tactfully ask the party or witness if he or she understands, and rephrase
statements or questions, if necessary.
References to form numbers and agency jargon should be avoided.
A “Good” score is achieved when the hearing officer used clear and understandable language and avoided
references to technical terms or unnecessary legal phrases.
A “Fair” score is given when the hearing officer used some language that would not be easily understood by the
average person but overall the language employed was understandable and during the minor occasions when
technical terminology was used it did not appear to confuse or intimidate the parties.
An "Unsatisfactory" rating should be scored when the hearing officer corrupted the hearing record by
employing language that was not easy to understand, or relied on such formal technical, or legal terms or
phrases such that the parties were confused or intimidated.
- 21 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 8: SINGLE POINT QUESTIONS.
PURPOSE - Each question by the hearing officer should express only one point.
SCORING SEGMENT
Good (6): Each of the hearing officer's questions expressed only one point and, if more than one
point was initially expressed, it was corrected.
Fair (3): Occasionally, the hearing officer asked a question with more than one point, but it did
not interfere with the development of the testimony and/or did not result in the evidence
being unclear on any dispositive element.
Unsatisfactory (0): The hearing officer repeatedly asked questions containing two or more points that
confused the witnesses or resulted in answers responsive to only one point.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 8.
Ideally, the hearing officer should begin all questioning with a neutral technique. In this respect, questions
should be in the form of “who, what, where, when, how or why” questions to elicit the specific information
about the single point. See Criterion 9 for specific examples. Compound questions should never be asked if the
answer relates to the substantive issues and the ultimate outcome.
A compound question is a question that asks more than one question, each of which requires a separate answer.
Questions should relate to one point only so that neither the question nor the answer will be misunderstood. For
example, a compound question such as "Didn’t your supervisor, John Doe, discharge you?" would be unlikely
to produce a clear answer. If the claimant answered “no,” it would be unclear if “no” was in response to the
discharge, or that John Doe was not the claimant’s supervisor.
The hearing officer should not permit the parties, or their representatives, to ask compound questions without
making a reasonable attempt to clarify the question or the response so the question and answer express one
point only. The hearing officer may ask follow-up questions on any other point(s); as appropriate.
There are exceptions to this guideline. Compound questions, along with leading questions, see Criterion 13, are
permissible for obtaining background information in order to move the hearing along.
- 22 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A “Good” score is achieved when the hearing officer asks mostly single point questions.
A “Fair” score is given when the hearing officer asked numerous questions that were not single point in nature
but these did not hinder development of the record or result in unclear testimony.
An "Unsatisfactory" rating should be scored when the hearing officer asked numerous questions that were not
single point in nature, and these questions seriously hindered development of the record, or resulted in unclear
testimony of material and important issues in the case.
- 23 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 9: CLARIFICATION OF STATEMENTS WHICH INCLUDE CONCLUSIONS.
PURPOSE - The hearing officer should attempt to clarify statements which include conclusions, opinions, and
ambiguous or unclear testimony.
SCORING SEGMENT
Good (6): When a witness responded with an opinion or conclusion, the hearing officer made a
reasonable effort to develop the factual basis for the opinion or conclusion. When the
testimony was not entirely clear or was ambiguous, the hearing officer questioned the
witness(es) in an effort to get specific, clear responses.
Fair (3): The hearing officer attempted to develop the facts of a witness’s statement, and/or asked
sufficient questions in an attempt to clarify ambiguous or unclear testimony.
Unsatisfactory (0): The hearing officer's questioning of the witnesses demonstrated little or no effort to
establish the factual basis for testimony that contained opinions or conclusions, or failed
to clarify ambiguous or unclear testimony on material points in the case.
Did not occur (6): There were no statements which included conclusions or opinions and the testimony was
clear and unambiguous and did not need clarification.
REFERENCE NOTES - CRITERION 9.
The intent of this criterion is to ensure that the hearing officer fulfills his or her obligation to require witnesses
to testify to evidentiary facts, as distinguished from conclusions. It is essential that the hearing officer establish
the factual basis for all testimony offered to determine if the witness is testifying from personal knowledge or
otherwise competent evidence. All witnesses expressing opinions should be subjected to further questioning to
establish the factual basis for the opinions whenever the testimony will be relied upon by the hearing officer in
the decision.
For example, if the witness says that the claimant was warned about certain behavior the hearing officer must
clarify the statement with appropriate open-ended questions. Who warned the claimant? How was the claimant
warned? If the warning was in writing, do you have a copy of the document? If the claimant was verbally
warned, who issued the verbal warning? Was the witness present during the warning? What specifically was
said that constituted the verbal warning? What did the claimant say in response to the warning?
All of these additional questions are necessary to clarify the statement that the claimant was warned and to
ascertain whether the witness is testifying from personal knowledge about the warning. The hearing officer
must not accept general statements without developing the record to ensure the record contains sufficient
information upon which to base the decision.
- 24 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
Similarly, when the claimant testifies he quit because he did not get a raise, additional questions need to be
asked. Who hired you? What was said to you regarding your pay? What about possible raises during your
employment? What specifically led you to expect a raise? Did you discuss your dissatisfaction with anyone?
With whom did you discuss it? What specifically did you say? Did you ever tell anyone you would leave
employment if your concerns were not addressed? These additional questions are necessary to ascertain
whether the claimant’s opinion that he should have received a raise does or does not support a finding that he
had good cause to quit under state law.
Testimony by expert witnesses is admissible to provide additional information related to the facts in the record
based on the expert’s education, background, experience, training and study. This permits the expert to express
an opinion on questions of fact relating to his or her particular expertise. For example, a qualified employment
service representative can offer expert witness testimony on labor market conditions when the appropriate
questions are asked to establish his/her status as a subject matter expert. The hearing officer should ask, on the
record, questions about the expert witness's background and qualifications as an expert.
A “Good” score is achieved when the hearing officer actively asks specific questions to determine whether the
witness is testifying from personal knowledge, and when opinion or conclusions are offered by a witness that
the hearing officer asks enough questions to establish the factual basis, if any, for those opinions or conclusions,
and when the hearing officer clarified, or attempted to clarify, ambiguous or unclear testimony on all material
issues in the case.
A “Fair” score is given when the hearing officer asked questions about opinion or conclusory testimony but did
not consistently do so for all witnesses, or for all opinions or conclusions offered, and/or the hearing officer
occasionally allowed ambiguous or unclear testimony but not about testimony related to material issues of the
case.
An "Unsatisfactory" rating should be scored when the hearing officer passively accepted opinions or
conclusions of witnesses without asking additional questions to determine the personal knowledge of a witness
or the factual basis for the opinion or conclusion, or failed to clarify ambiguous or unclear testimony on
evidence related to significant material issues in the case.
- 25 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 10: CONFRONTATION.
This criterion is a CRITICAL FAIR HEARING & DUE PROCESS element.
PURPOSE - There must be an opportunity for confrontation of all opposing witnesses to conduct a fair hearing.
SCORING SEGMENT
Good (9): Each party had the opportunity to be present during all testimony or present during the
appeal (use of telephone hearings where all parties have the opportunity to participate and
hear the witness(es) satisfies the confrontation requirement).
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The hearing officer denied the opportunity for confrontation.
Did not occur (9): There were no opposing witnesses.
REFERENCE NOTES - CRITERION 10.
The intent of this criterion is to ensure both parties are present and have an opportunity to hear and have
knowledge of the evidence presented during the appeal.
A party must be present for all evidence. Excluding witnesses while others testify does not conflict with this
criterion unless the witness is an "interested party" (claimant or employer).
A “Good” score is achieved when the hearing officer provided an opportunity for confrontation including the
right to be present during all testimony, the opportunity to see all documents the hearing officer possesses that
make up the record, and the opportunity to see all documents the opposing party presents unless the party
waives the right to do so.
In a remand case, this criterion is satisfied if the absent party is mailed a copy of the recording of the previous
hearing and acknowledges on the record receipt thereof.
A “Fair” score is given when the hearing officer accepts documents or testimony when one party is not present
but the documents or testimony was on a point not material to the case and/or was not initiated by the hearing
officer.
An "Unsatisfactory" rating should be scored when the hearing officer affirmatively obtains testimony or
evidence without both parties being present on material points in the case, or failed to afford an absent party
an opportunity to review the additional testimony or evidence obtained on a material issue before issuing a
decision in the case.
- 26 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
If a case receives an unsatisfactory score, this Critical Fair Hearing & Due Process element has failed. This
may help management to identify training issues to improve the "due process" component(s), or where a state’s
practice may negatively impact this criterion.
Criterion 10, Confrontation; Criterion 11, Cross-Examination; Criterion 19, Within Scope of Notice; Criterion
22, Bias & Prejudice; and Criterion 26, Findings of Fact, are considered Critical Fair Hearing & Due Process
elements of this evaluation process.
Confrontation is distinguished from cross-examination which is discussed in Criterion 11.
- 27 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 11: CROSS-EXAMINATION.
This criterion is a CRITICAL FAIR HEARING & DUE PROCESS element.
PURPOSE - The hearing officer must afford a timely (before testimony from another witness) opportunity to
cross-examine, properly control cross-examination, and provide appropriate assistance where necessary.
SCORING SEGMENT
Good (9): The hearing officer provided the parties their right to timely cross-examine the opposing
witnesses, and limited cross-examination to permissible bounds, and provided assistance
in framing questions as necessary.
Fair (3): The hearing officer informed the parties of their right to cross-examination, but did not
offer it in a timely manner, or did not effectively control it, or did not provide assistance,
when needed, but these failures did not corrupt the hearing record.
Unsatisfactory (0): The hearing officer failed to afford the parties their right to cross-examination, or made no
attempt to properly control the process to the point that cross-examination negatively
affected the hearing record, or did not provide assistance when it was obvious a party was
unable to form questions and was unable to proceed.
Did not occur (9): There were no opposing witnesses.
REFERENCE NOTES - CRITERION 11.
The intent of this criterion is to ensure that all parties are afforded a timely opportunity to cross-examine
opposing witnesses. The opportunity to cross-examination is a fundamental right and not a mere privilege.
The purpose of cross examination is to permit a party to bring out, through questioning of the opposing party or
witnesses, any contradictions and improbabilities or to raise doubts about the testimony or evidence presented
by the opposing party.
The right to cross-examine is not diminished by reason of the fact that the parties are unrepresented by counsel.
However, because the party may not be legally trained, the hearing officer may offer some assistance such as
when a party appears to want to ask a question but makes a statement instead. The hearing officer may turn a
statement into a question to demonstrate how one can ask questions of the opposing party.
The right to cross-examine should be offered immediately after a witness testifies and should not be delayed
until all the witnesses for one side have concluded their direct testimony.
The right to cross-examine may be restricted, for example, when questions become unduly repetitious or when
the cross-examiner harasses, argues with, or badgers the witness. Additionally, the cross examiner must not be
permitted to testify during the cross examination.
- 28 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A “Good” score is achieved when the hearing officer offers the timely opportunity to cross-examine each
witness, assists an unrepresented party who has difficulty framing questions, and effectively controls cross-
examination by not allowing a party to testify during cross-examination or badger or harass opposing witnesses.
A “Fair” score is given if the hearing officer allows cross-examination but does not effectively control it by
allowing the party to make statements during cross examination that "badger" the opposing witnesses without
admonishment or fails to provide meaningful assistance to lay persons, as appropriate. A "Fair" score should be
given if the cross-examination did not occur immediately after the witness testified.
An "Unsatisfactory" rating should be scored when the hearing officer fails to provide an opportunity for
cross-examination, or makes no attempt to keep the questioner from badgering the witness to the extent that the
failure to act negatively impacts the hearing record, or the hearing officer does not provide assistance during
cross-examination when it was clearly needed and it can be said that the hearing officer effectively denied the
party the right to cross examine.
If a case receives an unsatisfactory score, this Critical Fair Hearing & Due Process element has failed. This
may help management to identify training issues to improve the "due process" component(s), or where a state’s
practice may negatively impact this criterion.
Criterion 10, Confrontation; Criterion 11, Cross-Examination; Criterion 19, Within Scope of Notice; Criterion
22, Bias & Prejudice; and Criterion 26, Findings of Fact, are considered Critical Fair Hearing & Due Process
elements.
- 29 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 12: REPETITIVE AND/OR IRRELEVANT TESTIMONY.
PURPOSE - The hearing officer should control repetitive or irrelevant testimony to keep the hearing moving
toward a conclusion.
SCORING SEGMENT
Good (3): The hearing officer diplomatically informed persons testifying that repetitious and
irrelevant testimony was not necessary and added nothing to the hearing. The hearing
officer did not question witnesses excessively or permit undue repetition or extensions
of testimony by witnesses, or duplication of testimony from multiple witnesses, and
testimony was limited to the issues.
Fair (1): The hearing officer asked repetitive or irrelevant questions, or allowed testimony that
was repetitious or irrelevant, but doing so did not burden the record and did not affect
the final decision.
Unsatisfactory (0): The hearing officer permitted frequent repetition of testimony, prolonged testimony, or
irrelevant testimony; the hearing officer frequently asked repetitious or irrelevant
questions of the witness(es).
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 12.
This criterion is intended to keep hearings moving forward. The hearing officer should not ask, or allow any
party to ask, questions that are repetitive or that address irrelevant matters, and should keep the witness(es) from
providing irrelevant, immaterial, and/or unduly repetitious testimony.
The hearing officer should also ensure that answers given are responsive to the questions asked. For example,
when a witness is unresponsive to a question from the hearing officer or a party, and the question is rephrased,
the hearing officer should move on from that line of questioning if the witness is still unresponsive. The
hearing officer should give the appropriate weight to the unresponsive testimony and should inform the person
testifying of the consequences of continued nonresponsive or evasive answers.
A “Good Score” is achieved when the hearing officer properly controlled the hearing by not allowing repetitive
or irrelevant testimony to be presented. A “Fair Score” is given when the hearing officer allowed some
repetitive or irrelevant testimony to be presented but this did not burden the hearing record. This score may be
given on those occasions when it is clear that the hearing officer permitted a party to "ramble on" because that
party would undoubtedly have perceived that s/he had been denied the opportunity to fully state his/her
position. An "Unsatisfactory" rating should be scored when the hearing officer allowed repetitive or irrelevant
testimony that burdened the record, or consistently failed to require a witness to be responsive in testimony on
material issues in the case.
- 30 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 13: LEADING QUESTIONS.
PURPOSE - The Hearing Officer should not ask, or allow others to ask improper leading questions on material
issues upon direct examination.
SCORING SEGMENT
Good (6): The hearing officer did not ask, or permit a party to ask, improper leading questions
about important facts.
Fair (3): The hearing officer asked, or permitted a party to ask, some improper leading questions
but they did not inhibit the fair presentation of the evidence because the points on which
they were asked were not material to the ultimate decision in the case.
Unsatisfactory (0): The hearing officer asked, or permitted the parties to ask, without admonishment,
improper leading questions on material factual matters in the case.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 13.
The intent of this criterion is to ensure that the hearing officer did not ask, or permit the parties to ask, improper
leading questions upon direct examination. A leading question is one which suggests the answer. An improper
leading question is one which is asked during direct examination and is suggestive of the answer regarding a
fact which bears on a material issue in the case.
For example, an employer representative’s question to the employer that asks “Over the last week he was
employed, Mr. Smith was always late to work, and that’s why you fired him, isn’t it?” suggests the answer, and
precludes an explanation of what happened.
Upon direct examination, the hearing officer or parties should not ask improper leading questions to witnesses
on factual matters which are material to the case and which the questioner intends to suggest a specific answer
to the witness. If improper leading questions are asked by others, the hearing officer should curtail them and/or
tell the questioner that answers to such questions will be given less weight in the consideration of the evidence.
Not all leading questions are impermissible. A hearing officer may use leading questions to expedite the
hearing by obtaining background information on matters such as the name, address, and social security number
of the party or witness, and similar information which is not a material point of dispute in the case. The hearing
officer may ask leading questions on direct examination, if necessary, to develop the evidence as long as the
questions do not inhibit the fair presentation of the facts. Additionally, leading questions of opposing witnesses
are permissible during cross examination.
- 31 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An exception relating to leading questions being permissible is when the witness is hostile, biased, or unwilling
to cooperate. In this situation, the hearing officer must decide if any one of these conditions exists and proceed
accordingly.
Further, if a witness cannot recall dates, names, places, times, etc., leading questions may be asked in order to
refresh his/her memory.
A “Good” score is achieved when the hearing officer did not ask, or permit any party to ask, improper leading
questions. No reduction in score is made when the hearing officer asks some leading questions that were not
improper, usually those about background information.
A “Fair” score is given when the hearing officer asked some improper leading questions on points that were not
in dispute, or on points which were not material to the outcome of the decision.
An "Unsatisfactory" rating should be scored when the hearing officer frequently asked, or allowed others to ask,
improper leading questions that suggested answers on material points in the case.
- 32 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 14: CONTROL OF INTERRUPTIONS.
PURPOSE - The hearing officer should effectively respond to interruption of testimony and/or disruptive
individuals at the hearing. This also means the hearing officer should refrain from inappropriate and
unnecessary interruptions.
SCORING SEGMENT
Good (6): The hearing officer, in as tactful a manner as possible, effectively handled interruptions
and/or disruptive individuals at the hearing and did not himself or herself interrupt
unnecessarily.
Fair (3): The hearing officer allowed some interruptions that did not disrupt the hearing.
Unsatisfactory (0): The hearing officer's interruptions were inappropriate or s/he did not effectively control
disruptions or interruptions by others.
Did not occur (6): There were no interruptions or disruptive individuals.
REFERENCE NOTES - CRITERION 14.
This criterion is intended to ensure that the hearing officer fulfills his/her obligation to prevent undue or
improper interruptions during the testimony of the witness(es) and/or to control disruptive individuals. This
intent also applies to the hearing officer interrupting unnecessarily.
If possible, the hearing officer should first tactfully remind participants of the hearing procedures, including a
reminder that each individual will be allowed to present his or her testimony at a later time. The hearing officer
must firmly prevent a disruptive individual from interrupting the flow of testimony.
The hearing officer should advise all parties that they are not permitted to comment or audibly react to the
testimony of another, and should progressively warn disruptive individuals that such behavior may result in
either a continuance of the hearing, or in an extreme case, exclusion from the hearing, if permitted under state
law.
The hearing officer must not allow himself/herself to be interrupted during the course of the hearing. This
includes taking nonemergency personal phone calls during the course of the hearing. The hearing officer
should also refrain from unnecessary or inappropriate interruptions that diminish the quality of the hearing.
A “Good” score is achieved when the hearing officer effectively controlled the hearing by tactfully handling an
interruption by a disruptive party, and the hearing officer did not interrupt unnecessarily or allow parties to
unnecessarily.
- 33 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A “Fair” score is given when the hearing officer handled an interruption or disruptive individual but did so in a
manner which was not tactful and/or allowed him or herself to occasionally interrupt unnecessarily.
An "Unsatisfactory" rating should be scored when the hearing officer failed to stop unnecessary interruptions,
failed to make a reasonable effort to control disruptive individuals, or the hearing officer's interruptions were
frequent, inappropriate, and/or unnecessary.
- 34 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 15: "OFF THE RECORD".
PURPOSE - The hearing officer should effectively control "off the record" situations and handle correctly "on
the record" matters that occurred or were discussed "off the record."
SCORING SEGMENT
Good (6): The hearing officer handled "off the record" procedures well and granted a request to do
so for good and sufficient purposes. The hearing officer allowed no one else to go "off the
record" but himself/herself. On resuming the record, the hearing officer summarized the
essentials of what took place and obtained the concurrence of the parties.
Fair (3): The hearing officer allowed parties to go "off the record" without establishing good and
sufficient cause on the record, but the hearing officer did summarize for the record the
"off the record" discussion and obtained concurrence from the parties of the accuracy of
the summary.
Unsatisfactory (0): The hearing officer went "off the record" and failed to summarize and obtain concurrence
from the parties "on the record "of what happened "off the record," or failed to repeat
questions or testimony when the recording unexpectedly stopped or there was some other
technical malfunction.
Did not occur (6): The hearing was not "off the record" for any reason.
REFERENCE NOTES - CRITERION 15.
The intent of this criterion is to build a record that is totally complete and without unexplained interruptions.
Any interruption or break in the record must be covered by the hearing officer. The hearing officer may hear
and grant a motion to go "off the record" from either of the parties.
If a party asks to speak briefly with counsel, or counsel with his/her client, the hearing officer should continue
recording, but allow the party and counsel to step outside the hearing room for a private conversation. In this
case, because the hearing officer did not go “off the record,” no statement and concurrence is needed.
A "Good" score is warranted when the Hearing Officer: (a) goes "off the record" or grants a request to do so
only for good and sufficient reasons; (b) allows no one to go "off the record" without his/her permission except
when beyond his control, such as with machine failure; and (c) summarizes the "off the record" discussion and
events and obtains the concurrence of the parties to the summary upon resuming the record.
A "Fair" score should be given if the hearing officer allows parties to go "off the record" without establishing
good and sufficient reason for doing so.
- 35 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" score should be given if the hearing officer went "off the record" and failed to summarize
on the record what happened while “off the record” or failed to get a concurrence of the parties to the hearing
officer’s summary of what happened while “off the record.”
For hearings that are being recorded by tape:
o On turning over the tape or putting in a new tape, the hearing officer should state s/he is going "off the
record" to change the tape and, when returning to the record, state that the tape has been replaced and that
nothing relating to the hearing transpired in the process.
o Concurrence from both parties must be obtained.
o If the tape runs out unexpectedly, creating a gap in the record, the hearing officer should repeat or ask the
last speaker to repeat any missing portions of his/her statement. In these instances, concurrence of the
witness and parties is required.
- 36 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 16: INTERPRETERS.
PURPOSE - The hearing officer should instruct and monitor an interpreter to insure she or he provides accurate
interpretation.
SCORING SEGMENT
Good (6): When necessary, the hearing officer gave clear instructions to the interpreter as to how to
interpret, and administered a special interpreter's oath. When necessary, the hearing
officer established "on the record" that the interpreter was fluent in both languages. The
hearing officer must require literal interpretation of the testimony of the witness, to the
extent possible in the native language of the witness.
Fair (3): The hearing officer did not give clear instructions to the interpreter as necessary, but
administered the special interpreter’s oath and gave an appropriate admonition when the
interpreter did not appear to be following instructions.
Unsatisfactory (0): The hearing officer (a) did not give an interpreter's oath, or (b) failed to take reasonable
steps to ensure that the interpretation accurately reflected the testimony.
Did not occur (6): An interpreter was not used.
REFERENCE NOTES - CRITERION 16.
The intent of this criterion is to ensure that the testimony is accurately interpreted. State practices vary
regarding interpretation procedures, including whether the witness may bring a friend or family member to
translate, or whether a professional interpretation provider is used. In any event, the interpretation should be
conveying the original meaning to the extent possible as it was spoken in the foreign language. When scoring
this criterion, the reviewer may consider that a professional interpretive service usually does not require the
same extent of instruction as a friend or family member. A hearing officer should exercise caution when
allowing family members or friends to translate to ensure they understand their role is to translate in first
person, to convey the original meaning of what is being spoken in the foreign language, and not to change the
meaning or words used by the witness.
For example, in response to a question that was asked and translated, if the interpreter says, "S/he said that s/he
heard . . . ," instead of “I heard,” the interpreter is not providing a literal interpretation and the interpreter
should be admonished to do so.
Objections to ambiguities in the interpretation need to be resolved so the record accurately reflects the
interpreted testimony.
Generally, although consecutive interpretation is preferred to ensure a clear record some states have developed
procedures for hearings where testimony and interpretation simultaneously occur, especially when an
- 37 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
experienced interpreter is used. If the testimony and interpretation overlap but the testimony is clear and
audible then the reviewer should not reduce the score. However, if the testimony and interpretation overlap and
the testimony is not sufficiently audible for recording purposes or results in confusion of the record, the hearing
officer must provide proper instruction to the witness and interpreter.
A "Good" score is warranted if the hearing officer gave clear instructions to the interpreter on how questions
and testimony are to be interpreted, and administers an appropriate oath to the interpreter. The hearing officer
also conducted the hearing in such a way as to ensure that the interpretation accurately reflected the testimony
and the proceedings.
A "Fair" score should be given if the hearing officer provided instructions to the interpreter but failed to
administer the special interpreter's oath, or allowed some departure from the instructions but these did not affect
the accuracy of the interpretation or the quality of the hearing record.
In distinguishing between a “good” and “fair” score, the reviewer should consider whether the interpretation is
responsive to the question asked. If a question is asked, and the interpreter and witness engage in a
conversation, with back-and-forth discussion, the hearing officer must admonish the interpreter to translate all
statements made by the witness for the record or to repeat the question again, and remind the interpreter to
provide literal interpretation.
An "Unsatisfactory" score should be given if the hearing officer failed to administer the special interpreter's
oath and failed to provide instructions to the interpreter, unless a professional interpreter service is used, and it
is clear this service was familiar with hearing protocol and procedures. Additionally, an unsatisfactory score
should be given when the hearing officer clearly permitted the translator to “testify” for the witness, or
consistently failed to admonish the interpreter when the instructions were not followed and this failure
materially impairs the hearing record.
- 38 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 17: CONTINUANCES.
PURPOSE - After the hearing has begun the hearing officer should use good judgment regarding continuances.
SCORING SEGMENT
Good (3): The hearing officer granted a necessary continuance when requested by either party or
upon his/her own motion.
Fair (1): The hearing officer granted a continuance where the need for such action was doubtful
and not fully supported by the record.
Unsatisfactory (0): The hearing officer granted a continuance for insufficient reasons or failed to order a
continuance when necessary.
Did not occur (3): A continuance was not requested or appropriate.
REFERENCE NOTES - CRITERION 17.
The intent of this criterion is to ensure timely disposition of cases to ensure prompt payment to individuals and
the avoidance of unnecessary delay. The criterion evaluates continuances and not postponement decisions. A
postponement occurs when a case is rescheduled prior to the opening of the hearing record. A continuance
occurs when the hearing officer suspends the hearing record and reschedules the case for a later time and date.
Unwarranted continuances unreasonably delay the timely disposition of cases and may impose a hardship on the
claimant, or an additional burden on an employer, who were prepared to proceed with the case on the date
scheduled. Assuming proper notice is provided, a case should not be continued absent compelling or necessary
reasons.
The hearing officer may grant a continuance for compelling and necessary reasons if the circumstances of the
case warrant it. For example, new issues develop for which proper notice was not provided, or when an element
of surprise is present that a party could not have reasonably anticipated and would become an issue if the case
went forward. Additionally, if a material witness unexpectedly is unavailable for the hearing, the hearing may
be continued in order to obtain his/her testimony. If parties to a telephone hearing are not furnished copies of
exhibits, a continuance may be necessary to allow opportunity to review and object to documents. (See
Criterion 3)
A "Good" score is warranted when the hearing officer granted a continuance only for good and sufficient
reasons that were fully supported by the record.
A "Fair" score should be given if the hearing officer granted a continuance and the need for such action was
doubtful or not adequately explained on the record.
- 39 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" score should be given if the hearing officer granted a continuance for reasons that were not
compelling; or were frivolous in nature or not supported by the record; or when the hearing officer did not order
a continuance when the need for one was supported by the record and led to a party not being able to present
evidence or testimony on a matter centrally in dispute.
- 40 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 18: CLOSING THE HEARING.
PURPOSE - The hearing officer should properly conclude the hearing by ascertaining whether the parties have
anything to add.
SCORING SEGMENT
Good (6): The hearing officer asked the parties prior to the end of the hearing if they had anything
further to say or present.
Fair (3): The hearing officer made a statement that the hearing was closed unless the parties
stated that they had something further to say.
Unsatisfactory (0): The hearing officer failed to ask this question at the conclusion of the hearing.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 18.
The intent of this criterion is to ensure that the parties have a full and fair hearing and are afforded ample
opportunity to present their case. Affording the parties an opportunity to state anything additional at the
conclusion of the hearing aids all subsequent reviewers of a case in their consideration of allegations that a party
was not allowed to fully present evidence. Any wording which the hearing officer chooses which clearly
accomplishes this result is permissible. The criterion will not be scored down for curtailing repetitive or
irrelevant statements by the parties.
A “Good” score should be given when it is clear that the hearing officer offered the parties a final chance to
present testimony or evidence. A hearing officer shall not be marked down when, after numerous attempts to
properly conclude the hearing, one or both parties persists in offering repetitive or irrelevant testimony, and the
hearing officer closes the record.
A "Fair" score should be given when the hearing officer demonstrates he or she is soliciting a “no” answer
either by the words used to ask the question or the tone of voice employed.
An "Unsatisfactory" score should be given when the hearing officer ends the hearing abruptly without affording
the parties an opportunity to make additional statements.
- 41 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 19: HEARING WITHIN SCOPE OF NOTICE.
This criterion is a CRITICAL FAIR HEARING & DUE PROCESS element.
PURPOSE - The hearing officer must conduct the hearing within the scope of the issues raised by the notice of
hearing, and if new issues arise during the hearing, the hearing officer must provide proper notice of them.
SCORING SEGMENT
Good (9): The hearing officer conducted the hearing within the scope of the issues stated on the
notice of hearing and if a new issue arose, properly explained the parties rights under
state law to either waive notice and proceed or issue a continuance of the hearing.
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The hearing officer did not conduct the hearing within the scope of the issues appearing
on the hearing notice or which were raised during the course of the hearing. The
hearing officer based his/her decision on new issues which were not properly noticed
and/or failed to obtain waiver of the notice requirement before issuing a decision on
these new issues.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 19.
The intent of this criterion is to ensure that the hearing and decision are based on issues to which the parties
received proper notice or which the parties were willing to waive proper notice and agree to be decided. If a
new issue arises during the hearing, the hearing officer must inform the parties that there is a new issue which
could affect entitlement to benefits and that it needs to be covered (state law will determine whether the hearing
officer has jurisdiction or must remand the case). The parties must be advised of their options to proceeding
which may include a party insisting on proper legal notice of the issue, waiver of the notice and proceeding with
the case, or asking for a continuance to bring forward testimony or evidence as to any new issues. Any waiver
of notice must be on the record.
A “Good” score is achieved when the hearing is conducted with proper notice of the issue, or, if a new issue
arises, if proper notice is waived.
An "Unsatisfactory" score should be given when the hearing and decision involve issues for which there was
not proper notice and for which a waiver of proper notice was not obtained by the hearing officer.
- 42 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
If a case receives an unsatisfactory score, this Critical Fair Hearing & Due Process element has failed. This
may help management to identify training issues to improve the "due process" component(s), or where a state’s
practice may negatively impact this criterion.
Criterion 10, Confrontation; Criterion 11, Cross-Examination; Criterion 19, Within Scope of Notice; Criterion
22, Bias & Prejudice; and Criterion 26, Findings of Fact, are considered Critical Fair Hearing & Due Process
elements.
- 43 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 20: GRATUITOUS COMMENTS.
PURPOSE - The hearing officer should not interfere with the development of the case by making gratuitous
comments or observations.
SCORING SEGMENT
Good (6): The hearing officer made no unnecessary comments or uncalled for remarks.
Fair (3): The hearing officer made one or two observations, not helpful or immediately pertinent
to the issues, but not to the point of being objectionable.
Unsatisfactory (0): The hearing officer made unnecessary comments or observations that diminished the
quality of the hearing.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 20.
A gratuitous comment is a comment that is made which is either unnecessary or improper during the hearing.
Generally speaking, it is not appropriate for the hearing officer to comment on the evidence presented. This
criterion is intended to ensure that the hearing officer conducts a hearing that is both fair in appearance and in
substance. It is intended to prevent the hearing officer from making uncalled for comments in an attempt to be
"smart" or "funny," or making remarks that do not meet high standards of demeanor and decorum.
A “Good” score is achieved when the hearing officer refrained from engaging in gratuitous comments, and did
not provide comments on the nature or quality of the evidence unless necessary to explore its admissibility.
Cases should not be "scored down" for remarks which appear to have been intended to make the parties feel at
ease.
A “Fair” score is given if the hearing officer did make some gratuitous comments but these were clearly not
intended to offend or disrespect the parties or their evidence, or the hearing officer commented on the evidence
but not in a derogatory manner.
An "Unsatisfactory" score should be given when the hearing officer made gratuitous comments which were
offensive to the parties, witnesses, evidence or the decorum of the proceedings.
- 44 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 21: ATTITUDE.
PURPOSE - The hearing officer should display an attitude that allows the parties and representatives to speak
freely in an orderly manner about the issues in the case.
SCORING SEGMENT
Good (6): The parties were made to feel at ease in offering testimony and in developing their case.
Fair (3): The hearing officer did not consistently make all parties feel at ease, but not to the
extent that it affected the outcome.
Unsatisfactory (0): The hearing officer's attitude was antagonistic or indifferent.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 21.
The intent of this question is to ensure that the hearing officer makes the necessary effort to put the parties and
witnesses "at ease" as much as possible. It is important that the parties believe that the hearing is fair as well as
for a fair hearing to be provided. The hearing officer must strive to leave the parties with the impression that a
fair opportunity was provided to both parties to present testimony and evidence and that a fair decision will be
rendered.
The hearing officer should exhibit care to make the parties and witnesses feel at ease with providing
information and try to strike a balance between being too formal and too informal. Too much formality in
mannerisms and tone of voice can be intimidating, and can give the impression that form is more important than
substance. On the other hand, too little formality can lead to a loss of control of the hearing, as well as the
appearance that the hearing officer is disinterested.
The hearing officer must take care to avoid demeanor that projects an attitude of dislike, boredom, lack of
concern, disengaged, and the like. While this may be primarily a problem for in-person hearings, such an
attitude may be discernable over the telephone, such as when the parties can hear the hearing officer typing, or
speaking to someone else, or a sigh.
A “Good” score is achieved when the attitude of the hearing officer was professional, courteous, and the
hearing officer attempted to allow the parties and witnesses to feel at ease in offering their information.
A “Fair” score is given when the attitude of the hearing officer was generally pleasant and professional during
the hearing but there was an occasion during the hearing when the attitude of the hearing officer possibly did
not make the parties feel at ease in offering testimony or evidence.
- 45 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" score should be given when the hearing officer displayed a bad attitude during the hearing,
such as, being consistently antagonistic, indifferent, or unprofessional which clearly interfered with the
presentation of the parties or the witnesses in the case.
The score for Criterion 20, Gratuitous Comments, and/or Criterion 21, Attitude, should not negatively influence
the scoring of Criterion 22, Bias and Prejudice. See Criterion 22 for a discussion of bias and prejudice.
- 46 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 22: BIAS AND PREJUDICE.
This criterion is a CRITICAL FAIR HEARING & DUE PROCESS element.
PURPOSE - The hearing officer must conduct the hearing in an impartial manner.
SCORING SEGMENT
Good (9): The hearing officer did not appear to demonstrate, or give the appearance of
demonstrating, bias or prejudice toward any participant in the hearing. The intensity of
questioning, type of questions asked, and/or the treatment of the participants, did not
indicate bias or prejudice.
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The hearing officer appeared to blatantly demonstrate bias or prejudice toward a
participant, or the hearing officer's actions were reasonably perceived as doing so.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 22.
The intent of this criterion is to ensure that the hearing officer conducted the hearing in a fair and impartial
manner. It is not enough that the hearing officer was not biased or prejudiced. The hearing officer must also
avoid the appearance of bias or prejudice.
When it appears that the hearing officer blatantly treated any party in a biased or prejudiced manner, the
criterion must be scored as unsatisfactory. For example, the hearing officer displays a negative or demeaning
manner directed towards a party's attitude, vocabulary, mannerisms, career field, status, beliefs, appearance,
age, sex, or religious beliefs, among other characteristics.
The hearing officer must control the hearing by asking important questions, limiting irrelevant testimony or
improper statements, and being persistent in clarifying or determining the truth of a statement. However, at
some point the attempt to clarify seemingly contradictory or inconsistent statements can be, or appear to be,
badgering. At times one party may require more assistance than the other. Maintaining control and asking
questions do not excuse bullying or badgering a party or witness. By the same token, offering assistance in a
way that clearly is demeaning and disparaging would result in an unsatisfactory score.
The difference between a “Good” and “Unsatisfactory” score should be obvious. If the hearing officer clearly
favors one party over the other in terms of the respect shown during the hearing, the questions asked, or the
amount of time allowed for a response to questioning, the case should be marked down.
- 47 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
If a case receives an unsatisfactory score, this Critical Fair Hearing & Due Process element has failed. This
may help management to identify training issues to improve the "due process" component(s), or where a state’s
practice may negatively impact this criterion.
Criterion 10, Confrontation; Criterion 11, Cross-Examination; Criterion 19, Within Scope of Notice; Criterion
22, Bias & Prejudice; and Criterion 26, Findings of Fact, are considered Critical Fair Hearing & Due Process
elements.
A Fair or Unsatisfactory score for Criterion 20, Gratuitous Comments, and/or Criterion 21, Attitude, should not
have a negative influence on scoring Criterion 22, Bias & Prejudice. In scoring Criterion 22, Bias & Prejudice,
if the hearing officer was not blatantly biased or prejudiced, then this criterion should be scored as a “Good.”
- 48 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 23: OBTAIN REASONABLY AVAILABLE EVIDENCE.
PURPOSE - The hearing officer must attempt to obtain the reasonably available competent evidence necessary
to resolve the issue(s) in the case.
SCORING SEGMENT
Good (9): The hearing officer obtained competent evidence, reasonably available and necessary to
resolve the issue(s) in the case.
Fair (3): The hearing officer obtained most of the evidence necessary to resolve the issue(s) of
the case and the omissions were not prejudicial to the outcome of the case.
Unsatisfactory (0): The hearing officer did not make a sufficient record to render a decision, because s/he
did not obtain sufficient competent, available evidence to resolve the issue(s) in the
case.
Did Not Occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 23.
The intent of this criterion is to ensure that the hearing officer functions as a “fact-finder” and all available
evidence are included as part of the record.
The unemployment insurance lower authority appeals hearing is not a contest between two opposite parties,
with the hearing officer sitting on the sidelines. The hearing officer is in effect a seat of inquiry, responsible for
getting complete and accurate facts. It is the responsibility of the hearing officer to ensure that the burden of
proof lies upon the appropriate party in UI hearings.
A hearing officer needs to preserve the appearance of neutrality of the issue(s) being discussed yet ask the
necessary questions to develop the facts of the issue for the record. It is the responsibility of the hearing officer
to develop all the evidence that is reasonably available and to make a decision according to the dictates of the
state law. State laws differ on the hearing officer’s obligations to obtain evidence. "Reasonably available"
means that evidence or testimony which is available at the hearing and which is critical to the issue(s) to be
decided.
In applying this criterion, consideration must be given to the adequacy of the hearing officer's attempts to
develop the evidence on each issue: Was it sufficient to secure evidence that was necessary and reasonably
available? For example, when attendance is an issue, a party may offer time keeping records. If the attendance
record is a matter of dispute, it is incumbent upon the hearing officer to accept this evidence.
A “Good” score is achieved when the hearing officer made sufficient efforts to obtain the available evidence to
resolve the material issues of the case.
- 49 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A “Fair” score is given if the hearing officer made an effort to obtain all of the reasonably available evidence
but may have failed to accept available evidence tendered which might have had a bearing on a material point.
An "Unsatisfactory" score should be given when the hearing officer does not make a sufficient attempt to obtain
available evidence or affirmatively prevents a party from presenting evidence on material issues in the case.
See Criterion 17, Continuances, and Criterion 3, Exhibits, for further information on issues and evidence.
- 50 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 24: ISSUE(S) CLEARLY STATED IN THE WRITTEN DECISION.
PURPOSE - The statutory issue(s) involved should be clearly and simply stated in the written decision.
SCORING SEGMENT
Good (3): The written decision included, in simple language, all the statutory issues in the case.
Fair (X): Not applicable - Do not use
Unsatisfactory (0): The written decision either omitted some or all of the issues, or stated them in a
convoluted manner that was incomprehensible.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 24.
The intent of the criterion is to ensure that there is a clear understanding of what issue(s) the decision addresses.
The statement should communicate clearly and effectively to the interested parties and other readers exactly
what the issues were. It should also establish the boundaries of the decision.
At the beginning of the decision, early in the description of the case history, or at another appropriate spot, the
issue(s) to be decided should be stated in simple terms for clear understanding and should include all the
elements of the applicable statutory provision(s). This statement need not be in the precise language of the
statute. For example, the decision may read, "The issue in this case is whether the claimant voluntarily left his
employment without good cause."
A “Good” score is achieved when the issue statement is clearly stated in the decision.
An “Unsatisfactory” score is given when the issue statement is omitted from the decision, or when the issue
statement is so overly complex that the average reader would not understand what issue(s) is being decided.
- 51 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 25: FINDINGS SUPPORTED BY SUFFICIENT EVIDENCE.
PURPOSE – Accepting the hearing officer's judgment of credibility, unless it is manifestly without basis, the
findings of fact must be supported by sufficient evidence in the hearing record.
SCORING SEGMENT
Good (9): The written decision’s findings of fact section must be supported by substantial evidence.
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The findings of fact stated in the written decision were not supported by substantial
evidence.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 25.
The intent of this criterion is to ensure that the findings of fact are supported by evidence in the record and this
evidence is of sufficient quality to support the findings.
In scoring this criterion, the evaluator does not decide whether all the necessary findings of fact were made, but
whether the findings of fact made by the hearing officer are supported by substantial evidence in the hearing
record. See Criterion 26 for findings of fact.
Only evidence that is properly entered into the record and which is officially and administratively “noticed” can
be considered as a basis for the findings of fact.
The weight the hearing officer gives to the testimony and evidence in the case of contradictory evidence or
testimony the hearing officer's judgment of credibility, should be accepted unless it is entirely without basis or
is clearly unreasonable.
There is no "Fair" score. Either the findings of fact are supported by the evidence, or they are not.
The distinction between "Good" and "Unsatisfactory" is whether or not, on matters material to the decision, the
findings of fact are supported by substantial evidence to support the ultimate outcome in the case. Substantial
evidence has been defined as "such evidence, or such relevant or competent evidence, as a reasonable mind
might accept as adequate to support a conclusion." It means simply, accepting the hearing officers internal
authority to determine credibility on material points in dispute, is the evidence sufficiently well founded in the
testimony and documentary evidence accepted to support the decision.
- 52 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 26: FINDINGS OF FACT.
This criterion is a CRITICAL FAIR HEARING & DUE PROCESS element.
PURPOSE - The hearing officer must make all of the findings of fact necessary to resolve the issues and
support the conclusions of law included in the decision.
SCORING SEGMENT
Good (9): The decision contained all the necessary findings of fact. The decision clearly states the
findings of fact upon which the hearing officer relied in the decision for each material
point in the case. The findings of fact in the decision accurately reflect the testimony and
are specific, relevant, and material to all major issues. The decision does not merely recite
testimony as findings of fact.
Fair (3): The decision contained most of the necessary findings of fact pertinent to the material
points. However, there was some recitation of testimony, or the findings were not clearly
stated, or the findings were not relevant and material to the case.
Unsatisfactory (0): The findings of fact in the decision did not accurately reflect the testimony presented or
did not contain the specific, relevant, and material findings of fact necessary to resolve
material issues in the case upon which the hearing officer relied in the decision.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 26.
The intent of this criterion is to measure how accurate, and clearly stated, the findings of facts were used by the
hearing officer in making the decision. The findings of fact represent the story of what happened in the case
and should be expressed in logical order (usually chronological) and in unequivocal terms. The reader should
be left with no doubt about what facts the hearing officer relied upon in making the decision. The findings of
fact must be made on all the elements of the issue being decided. The findings must be accurate, specific,
relevant, and material to all issues in the case.
Findings of fact are sometimes referred to as evidentiary findings or material points. The hearing officer must
clearly and accurately identify the specific findings of fact for the material issues in the case since they are final
(in most states) if supported by sufficient, competent evidence in the record. A reviewing authority must know
what specific findings of facts were identified by the hearing officer in making the decision (as distinguished
from a summary of evidence).
- 53 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
The findings of fact must be specific. If the hearing officer intends to document willful misbehavior based upon
a prior warning, the hearing officer should specifically identify in the decision the nature of the warning. A
finding that the claimant was “previously warned,” by itself, is insufficient since it does not permit the reader to
know whether the warning was verbal or in writing, when it was issued and by whom, on what event the person
was warned, and how it bears a relationship to demonstrating willful misbehavior in relation to the incident(s)
which prompt an employment separation.
Similarly, in a voluntary leaving case, the decision should contain findings of fact specific to the situation;
whether the quit was verbal, in writing, or in some other manner, what reasons (if any) were provided for
quitting, and any other circumstances which are relevant to making a decision about whether the claimant had
good cause under the state law for the voluntary leaving.
A recitation of testimony is impermissible since it is not a finding of fact but a summary of a party’s viewpoint.
Findings of fact on matters irrelevant to the outcome of the case are unnecessary and should be avoided. Prior
to issuing the decision, the hearing officer should review the findings to ensure the findings of fact accurately
reflect the evidence, are clearly stated, material and relevant to all issues, and clearly supports the conclusion of
law upon which the decision is based.
A "Good" score is warranted if the decision clearly and accurately states the facts found, and the facts found are
material and relevant to all of the issues involved in the case.
A "Fair" score is warranted if the decision contains some inaccurate facts on minor points that do not affect the
outcome, or contains some unclear facts, or irrelevant facts but these do not affect the reader’s understanding of
how the facts support the decision outcome.
An "Unsatisfactory" score should be given if the decision contains findings of fact that do not accurately reflect
the hearing record, or fails to make specific, necessary findings of fact needed to resolve the issues, or where the
majority of facts found constitute a recitation of testimony such that it is unclear what facts are being relied
upon by the hearing officer in making the decision.
If a case receives an unsatisfactory score, this Critical Fair Hearing & Due Process element has failed. This
may help management identify training issues to improve the "due process" component(s), or where a state’s
practice may negatively impact this criterion. Criterion 10, Confrontation; Criterion 11, Cross-Examination;
Criterion 19, Within Scope of Notice; Criterion 22, Bias & Prejudice; and Criterion 26, Findings of Fact, are
considered Critical Fair Hearing & Due Process elements.
- 54 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 27: REQUIRED CONCLUSIONS.
PURPOSE - The decision should contain the conclusions of law required to resolve the issue(s) in the case.
SCORING SEGMENT
Good (6): The decision contains the necessary conclusions of law.
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The decision does not contain the necessary conclusions of law.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 27.
The intent of this criterion is to ensure that the hearing officer has indicated his/her final conclusion on each
issue involved.
The conclusions of law represent the hearing officer’s application of the law to the facts of the case. Following
the language of the appropriate statute, it tells the parties the legal standard that will be applied to the facts of
the case and that mandate the result of the case.
For example, in a misconduct issue for absence without notice, the specific provision in the law should be
referred to by quoting it or by explaining it in simple terms with, when necessary, an explanation of a term such
as "misconduct." The conclusion of law might be, "The claimant is disqualified since “misconduct connected
with the work" includes instances when an employee who has been previously warned about attendance is
absent without proper notice to the employer. This statement resolves the issue and should be supported by the
hearing officer's findings that the claimant had been absent, had been warned, and had not given notice to his
employer, with further appropriate details.
A “Good” score is warranted when the decision contains the conclusions of law setting forth the legal standard
which applies to the material issue(s) in the case.
“Fair” is not used.
An “Unsatisfactory” score is warranted when the necessary conclusions of law are not stated in the decision, or
are stated in such an unclear manner that the average reader would not understand what legal standard governs
the material issues being decided.
- 55 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 28: LOGICAL REASONING.
PURPOSE - The decision should state logical reasons for the outcome that are consistent with the findings of
fact and the conclusions of law.
SCORING SEGMENT
Good (6): The hearing officer stated logical reasons for the decision consistent with the findings of
fact and applied those facts in a logical manner to the conclusions of law.
Fair (3): The reasoning was not fully stated or contained some inconsistencies but, when read as a
whole; the decision is understandable both factually and legally.
Unsatisfactory (0): The reasoning and rationale in the decision were not stated or did not logically follow
from the findings of fact to the conclusions of law.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 28.
The intent of this criterion is to measure how well the decision is written such that a reasonable person will
know upon reading the decision that it has a sound basis, in law and fact, for the outcome. The intent is not to
second guess the decision of the hearing officer. Whether reasonable minds might differ in the outcome is not
the standard. The reasoning in the decision cannot be inconsistent with the findings of fact or the conclusions of
law applied. The explanation of the decision should be reasonably dawn from the findings of fact, be
understandable, and adequately covers only the factors in the provision of the law relating to the issue.
The reasoning should be consistent with the findings of fact and the conclusions of law. The reasoning should
use clear, concise, and understandable terms without unnecessary elaboration, and without reliance upon
immaterial considerations. The facts should not be repeated as reasoning, nor should new facts be entered. The
reasoning should include an explanation to the parties why material contentions were either accepted or
rejected, and explain the basis for it.
A “Good” score is given when the reasoning of the hearing officer is clear in the decision, including that the
findings of fact and conclusions of law are consistent and relevant to the material issues. Deduction will not be
made when the hearing officer addresses specific legal or factual contentions raised by the parties. A "Fair"
score may be given when, after consideration of all the facts and law, the reasoning is understandable and has a
rational basis in law and fact even though there may be some minor inconsistencies or some incompleteness is
addressing minor points.
An "Unsatisfactory" score should be given when the reasoning is not clearly stated, or when the reasoning is
inconsistent with the law and facts of the case, or when there is such incompleteness in analysis or so many
internal inconsistencies that it is difficult to understand the outcome.
- 56 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 29: FORM, STYLE, AND ORGANIZATION.
PURPOSE - The decision should be well organized as to form and style. It should be noted that this criterion
does not address content.
SCORING SEGMENT
Good (3): The decision was organized so that the issues in the case, the findings of fact, the
rationale, the conclusions of law, and the ruling were clearly outlined.
Fair (1): Although the various portions of the decision merged with one another, it was clear which
statements were findings of fact and which were conclusions of law.
Unsatisfactory (0): The decision was not organized and it was difficult to understand.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 29.
The intent of this criterion is to ensure that each segment of the decision is stated distinctly for clarity, correct
administrative adjudication procedures, and compliance with legal requirements. This criterion refers to the
outline or form of the decision not to the content of the decision. The content of the decision is covered in other
criteria.
The written decision is of the utmost importance. It is the culmination of the hearing process, and must be
adequate for judicial review. The decision should include the following elements: 1) a statement of the issue(s)
being decided; 2) the findings of fact; 3) the rationale or reasoning -- based on the findings of fact and the
applicable statute; 4) the conclusions of law -- based upon the findings of fact and reasons, and showing the
final judgment of the hearing officer on the issue(s); 5) the "decision outcome" -- the action to be taken by the
agency in accord with the decision; and 6) information on further appeal rights if a party disagrees with the
written decision.
While there is no standard or prescribed order for the above listed elements and some acceptable formats may
merge some of them, each element should be clearly identifiable.
A “Good” score is achieved when the decision is well organized and contains an issue statement, a statement of
the findings of fact, the conclusions of law, the rationale for the outcome, a decision statement and further
appeal rights.
A “Fair” score is given when the decision contains each of the above but the organization makes it unclear to
the average reader which section represents each of the above.
- 57 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" score should be given when the organization of the decision is such that it would confuse
the average reader of the issue, facts, law, reasoning or outcome of the case, or does not include all of the
described elements, including further appeal rights.
- 58 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 30: DECISION STATES LEGAL EFFECT.
PURPOSE - The written decision should contain a clear and correct statement of the legal effect of each issue
covered.
SCORING SEGMENT
Good (3): In the decision paragraph, the hearing officer correctly identified the determination(s)
appealed and stated whether the determination is affirmed, reversed, or modified. If a
determination is reversed or modified, the decision explained the reversal or modification
in sufficient detail to allow the parties to understand it and the administrative agency
enough information to implement the decision.
Fair (1): The decision paragraph states whether the determination(s) is affirmed, reversed, or
modified. However, the decision paragraph did not specify the administrative action the
agency must take to implement the outcome.
Unsatisfactory (0): The decision paragraph did not correctly identify the determination appealed, or it did not
state whether the determination was affirmed, reversed, or modified, or the decision
paragraph states an improper outcome in relation to the findings of fact and conclusions of
law.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 30.
The decision paragraph informs the parties of the ultimate outcome of the case and directs the administrative
agency to affirm, reverse, or modify a specific determination(s) which is the subject of the appeal. The hearing
officer must identify the determination(s) that is being ruled upon and accurately state the result in a style and
format that easily informs the reader of the outcome.
The decision paragraph should also direct the administrative agency of actions to be taken; e.g., if a
disqualification is imposed, the specific date the disqualification begins and what action, under state law, the
claimant must take to overcome it, and any further actions the administrative agency should investigate e.g. if a
previously undetected, unrelated eligibility issue arose during the hearing that should be resolved before
benefits are paid as the result of a job separation ruling that the hearing officer was unable to address during the
hearing.
A “Good” score is achieved if the decision paragraph correctly identified the determination(s) appealed and
stated whether it is "affirmed," "reversed," or "modified" as appropriate. If modified, the decision paragraph
clearly and specifically stated the modification and informed the administrative agency of the action to take as a
result of the modification. For example, "The determination dated (state date) is modified to reflect that the
claimant quit without good cause and is disqualified the week of (date) and the (X) weeks immediately
- 59 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
following ending on (date)". Any similar wording showing the administrative action required to implement the
decision may be used.
A "Fair" rating should be given if the decision paragraph meets all of the requirements for "good" but does not
specify the administrative action.
An "Unsatisfactory" score should be given if the decision paragraph fails to correctly identify the
determination(s) the decision is ruling upon, fails to state whether the determination is affirmed, reversed or
modified, or the decision is inconsistent with the facts and conclusions of law. An example could be the
affirmed decision is noted but the facts and conclusions of law clearly reflect the hearing officer meant to
reverse the determination.
- 60 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CRITERION 31: UNDERSTANDABLE DECISION.
PURPOSE - The decision should be worded so that it is understandable to most claimants and employers
and it should have a professional appearance.
SCORING SEGMENT
Good (6): The language used in the decision contains words that are easy to understand to the
average reader, avoids unnecessary legal jargon, technical verbiage or other “shop talk,”
and contains no or limited grammatical, typographical or other errors. The decision is
clear and concise and avoids using objectionable or abrasive words or phrases. The
decision is neat and professional in appearance.
Fair (3): The decision contains some legal jargon, or technical verbiage or some unfamiliar words,
or contains some grammatical, typographical or other errors, but these did not
substantially impair the average reader in understanding the decision.
Unsatisfactory (0): The decision contains uncommon words that could not be easily understood by the
average reader. The decision contained too much legal jargon, technical verbiage or
“shop talk” such that the reader was left without a clear understanding of the rationale or
outcome of the decision, or the decision contained such numerous grammatical,
typographical or other errors that they adversely affected the coherence of the decision.
Did not occur (X): Not applicable - Do not use.
REFERENCE NOTES - CRITERION 31.
The intent of this criterion is to ensure that the hearing officer issues a written decision that can be understood
by the parties and the agency. The decision must be clear, concise and worded in “plain English” to the level of
understanding of most people. It should be written clearly and tactfully, and should appear neat and
professional.
A "Good" scored is achieved when the language used in the decision is understandable to ordinary persons, is
clear, tactful and concise, and the decision is free of all but minor grammatical, typographical or other errors. A
deduction will not be made when the hearing officer cites a statutory provision, or court case, if there was some
attempt to explain it in terms the ordinary person will understand.
A "Fair" score should be given if the decision meets the qualifications above except that it contains some words
that may be difficult for readers to understand, uses some legal jargon or technical verbiage without an attempt
to explain these terms so that the average person can understand them, and/or contains some grammatical,
typographical or other errors but these do not significantly impair the ability of the reader to understand the
rationale or outcome of the decision.
- 61 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
An "Unsatisfactory" score is warranted when the decision uses overly complex words or phrases that are not
easily understood by the average person, or overly resorts to unnecessary legal jargon, technical verbiage or
“shop talk” that significantly detracts from the reader’s ability to understand the decision rationale or outcome,
or which contains such numerous grammatical, typographical or other errors that reflect negatively on the
reader’s ability to have confidence in the decision. Simply put, if after reading the decision, the reader does not
know who prevailed and why, the criteria should be scored "Unsatisfactory."
- 62 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
ANNUAL REVIEW (AR1): NOTICE OF HEARING.
PURPOSE - The notice of hearing should clearly identify the parties, the date, time and place of hearing and
the issues involved in the appeal to be addressed or identify whether there was an informed waiver.
SCORING SEGMENT
Good (6): The hearing notice clearly lists all parties to whom the hearing notice was mailed. The
date and time of the hearing is prominently displayed. The notice should state whether the
hearing shall be conducted in person or by telephone.
If the hearing is scheduled in person, the notice provides the address of the hearing. No
deduction will be made if the place of hearing is listed, for example, as "Employment
Security Office, 1100 W 10, Jasper, MA."
If the hearing is scheduled as a telephone hearing, the notice must advise the parties how
they will participate, and give instructions, providing a telephone number to be contacted
or by listing the phone to call.
The issues must be stated as required under state law and must be sufficiently clear so as
to allow the parties to adequately prepare for the hearing, e.g., "whether the claimant will
be disqualified from benefits because of his or her reason for separation from work."
Fair (3): The notice of hearing complied with the elements listed under “Good”, but the notice did
not adequately state the issue(s), or failed to provide clear instructions regarding how to
participate in the hearing. A generalized statement that the hearing will discuss the
correctness of a determination is not sufficient to provide adequate notice. For example
all, of the parties were notified, but it does not clearly state the issue.
Unsatisfactory (0): The notice of hearing was not sent to an interested party, or it did not state the date and
time of the hearing, or it did not state the issue in sufficient detail so that the parties could
understand why they were being summoned to participate in the hearing.
Did not occur (X): Not applicable - do not use.
REFERENCE NOTES - NOTICE OF HEARING (AR1).
The notice of hearing is the official document notifying the parties that an appeal has been filed, and will be
heard by the hearing officer on a specific date and time. The intent of this criterion is to ensure that the
document provides adequate notice of the hearing and gives the parties an opportunity to prepare for it. The
notice should indicate all the parties who have been given notice of the hearing, and in the case of a telephone
hearing, it should provide specific information regarding how to participate.
- 63 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
For a telephone hearing, the notice must adequately state how the parties will participate. For example, "Parties
should call the toll free number above at least 15 minutes before the hearing to notify the hearing officer of the
number to be called for the hearing." Or, “Failure to keep a telephone line open at the above schedule date and
time for the hearing may result in an unfavorable decision if the hearing officer is unable to reach you at the
telephone number listed above. Note to employer: at least 24 hours before the scheduled hearing above, please
provide the deputy clerk with the name and telephone number of the person who will represent the employer at
the hearing.”
A "Good" score is given if the hearing notice covers all of the required information and does so in a way that
can be understood by the parties. No deduction will be made if a hearing proceeds without a notice of hearing
when there was either actual notice or a waiver of notice to any new issues involved in the appeal.
A "Fair" rating is given if the notice provides the date, time, and place of the hearing but does not adequately
state the issue(s) or fails to provide clear information on how to participate in the hearing.
An “Unsatisfactory” score is given if the hearing notice does not identify one or more interested party since
there can be no fair hearing without proper notice. Additionally, if the notice of hearing omits the date and
time, or fails to list the issue(s) involved, it cannot be said to constitute adequate notice unless this has been
waived by the parties.
- 64 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
ANNUAL REVIEW (AR2): FINALITY DATE AND FURTHER APPEAL RIGHTS.
PURPOSE - The decision should clearly and understandably state the date that the decision will become final
unless appealed within the timeline provided under state law, and shall provide information regarding the rights
of further review or appeal.
SCORING SEGMENT
Good (3): The decision clearly states when the decision is final and that the party adversely affected
may appeal. For example, a statement such as "This decision becomes final 14 days after
the date of mailing" is sufficient if the date of mailing is clearly identified. A statement
such as "See the attached brochure for further appeal rights" is adequate to advise the
parties that further appeal rights are available.
Fair (X): Not applicable - Do not use.
Unsatisfactory (0): The decision does not clearly set out the number of days to appeal before it becomes final
or does not indicate that further appeal rights are available.
Did not occur (X): Not applicable - do not use.
REFERENCE NOTES - FINALITY DATE AND FURTHER APPEAL RIGHTS (AR2).
The intent of this criterion is to ensure that the parties understand their right to appeal the decision and the
deadline for doing so provided under state law. The appeal rights must be prominently displayed in the decision
and must specifically inform the parties of the procedure they must follow if they disagree with the decision. If
the state law contains a particular requirement to effectuate an appeal (such as that the appeal must be mailed,
faxed or filed electronically) it should be stated. If a state law contains some provision for an absent party to
request a reopening of the case, it should be stated in the appeal rights or a reference to information about how
an absent party can request a reopening should be provided.
- 65 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
- 66 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PLEASE SEE ET HANDBOOK 401, UI Reports Handbook for the ETA 9057 Lower Authority Appeals Quality Review report.
A facsimile of the State Evaluation Score Sheet is listed here.
1. EXPLANATION G-6 F-3 U-0 D-6 G = GOOD; F = FAIR;
2. OPENING STATEMENT G-6 F-3 U-0 U = UNSAT; D = DID NOT OCCUR
3. EXHIBITS G-6 F-3 U-0 D-6 COMMENTS
4. WITNESS ORDER G-6 F-3 U-0 D-6
5. ORDER OF WITNESSES' TESTIMONY G-3 F-1 U-0
6. QUESTION OWN WITNESS G-9 F-3 U-0 D-9
7. CLEAR LANGUAGE BY H.O. G-6 F-3 U-0
8. COMPOUND QUESTIONS G-6 F-3 U-0
9. CLARIFIED TESTIMONY G-6 F-3 U-0 D-6
10. CONFRONTATION G-9 U-0 D-9
11. CROSS-EXAMINATION G-9 F-3 U-0 D-9
12. REPETITIVE TESTIMONY G-3 F-1 U-0
13. LEADING QUESTIONS G-6 F-3 U-0
14. INTERRUPTIONS G-6 F-3 U-0 D-6
15. "OFF THE RECORD" G-6 F-3 U-0 D-6
16. INTERPRETERS G-6 F-3 U-0 D-6
17. CONTINUANCES G-3 F-1 U-0 D-3
18. CONCLUSION OF HEARING G-6 F-3 U-0
19. WITHIN SCOPE OF NOTICE G-9 U-0
20. GRATUITOUS COMMENTS G-6 F-3 U-0
21. ATTITUDE G-6 F-3 U-0
22. BIAS AND PREJUDICE G-9 U-0
23. OBTAIN AVAILABLE EVIDENCE G-9 F-3 U-0
24. ISSUE STATEMENT G-3 U-0
25. FINDINGS SUPPORTED BY EVIDENCE G-9 U-0
26. FINDINGS OF FACT G-9 F-3 U-0
27. NECESSARY CONCLUSIONS INCLUDED G-6 U-0
28. LOGICAL REASONING G-6 F-3 U-0
29. FORM AND STYLE G-3 F–1 U-0
30. DECISION STATES LEGAL EFFECT G-3 F-1 U-0
31. UNDERSTANDABLE DECISION G-6 F-3 U-0
32. TOTAL POINTS SCORED (OPTIONAL)
33. INTENT OF DECISION A - ALLOW; D - DENY
34. EFFECT ON APPEALED DETERMINATION. A - AFFIRM; R - REVERSE; M - MODIFY
35. DATE OF DECISION (MMDDYYYY)
36. DATE IMPLEMENTED (MMDDYYYY)
37. CASE MAT. STATUS: OK; TI(RECORDING INAUD.); TM(RECORDING MISS.); DM(DOCS. MISS.) IM
(RECORDING INAUD. & DOCS. MISS.); MM (RECORDING & DOCS. MISSING)
38. TIME REQUIRED FOR EVALUATION OF CASE IN MINUTES.
- 67 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
APPENDIX A
Sample Selection
Appendix A explains the procedures for selecting the samples for lower authority appeals
review. Explanations of options have been included; each state should select the option best
suited to their particular operation. The option preferred by the U.S. Department of Labor
National Office (NO) will be indicated with reasons for the recommendation.
WHAT DOES SAMPLING REQUIRE?
The sampling methodology for lower authority appeals contains five distinct steps:
1. Identify, find, or gather data elements for sampling the universe files;
2. Extract or collect data to create the universe files;
3. Determine which transactions to select for the sample;
4. Select the cases to review; and
5. Create output reports and files of the selected cases.
How these five steps are accomplished is the state's choice. Not all states have the same level of
automation, and varying file structures may lend themselves to different sampling approaches.
The state may use an automated or manual method to create the universe files and select the
samples. Throughout this section of the Appendix, both methods will be discussed. Various
details and tips on how to determine the best approach for your state is also provided.
Step 1 - Gather Data for the Sampling the Universe
Collect Required Data
The first step is to gather or have access to the sample universe (ALL of the particular
transactions to be reviewed). It is essential that every transaction or item meeting the criteria be
included. This means that all possible sources or locations of the transactions must be searched.
For example, since appeal decisions may be generated and stored in various units, check to be
certain they will all be included in the universe.
Be sure to check that only valid transactions are included. Refer to the definitions in the UI
Reports Handbook No. 401 to determine which records should be included. ETA 5130 Benefit
Appeals Report and ETA 9054 Appeals Time Lapse are the reports to review.
For instance, episodic claims programs such as Extended Benefits, Disaster Unemployment
Assistance, Trade Readjustment Allowances along with disposed by other than decision, such as
a dismissal, are not valid in terms of the definitions for the sample universe.
- 68 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
Depending upon the automation level of the Appeals Unit, the creation of the universe may
require the extraction of data from a computer (mainframe or PC) or the keeping of a manual list
or searching file drawers.
If an automated sampling method is chosen, the state’s Information Technology (IT) staff is
responsible for creating the universe files which contain the requested information. The NO has
developed specifications of the minimum data needed for each sampling of the universe. The IT
staff is responsible for creating the programs and/or utilities to extract or gather the requested
data elements.
Each sample being reviewed will be selected from a universe which includes the lower authority
appeals which were dated within the three months in the preceding quarter, which is referred to
as the review quarter. The date the appeal decision was issued determines in which quarter’s
universe that record will be included.
Schedule Data Capture
In building the universe files, lower authority appeals should be captured as they occur.
This is important as the desired transaction may be superseded by a subsequent transaction and
the desired information may no longer be readily available. This may be especially true in
highly automated states where data fields are often overlaid with the most recent information.
Some states may be able to reconstruct events by using daily transaction logs maintained in their
data processing environment. It is still better to capture the transactions as they occur during the
time period to be reviewed.
In manual record storage systems, the transaction source information is tracked by a filing
system. The universe to be sampled should be isolated in some manner so that the integrity of
the data will not be compromised with it is time to select the sample.
HINT: Once the elements for the universe files have been identified and the extraction program
created, the quality reviewer should examine a small cross section of the records to verify that
the data elements are correct and the proper time frames are being followed.
After the quality reviewer has approved the data elements and time frame, the IT staff should
establish procedures for building the universe files, selecting the sample cases and saving the
universe files.
Step 2 - Collect Data to Create the Universe
Data Collection
Save the universe files. Each state has the option to collect the data for the universe files any
way they choose. If the necessary file is automated, the IT staff must create a file of the
- 69 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
transactions that make up the universe. The SWA can either write a program to create the
universe file or use commercial software. The resulting transaction files can then be used as
input into a sample selection program such as PICKNMBR, which is described later in this
appendix.
For files not automated, the state must collect the information manually. This can be
accomplished many ways but a simple method can be the creation of a list.
For example, as lower authority appeals are completed, each hearings officer will record the
docket number and the date of the appeal was heard. Throughout the quarter, the list is updated.
At the end of the quarter, the list is assembled as the universe and the number of completed
appeals are sequentially numbered and counted.
States MUST save the universe files from which samples are selected for data validation
purposes for one year.
Step 3 - Determine Records for the Sample
Perform Calculations The third step is to determine which records to select for the
sample. The formulas used to determine which records to select
must be the formulas provided by the NO, or alternative formulas
approved by the NO.
To perform the calculations, three numbers are needed:
1. Total Records in the universe - Once the universe has been created, a count of all the
transactions in the universe must be performed. This count is represented by "P" in
the calculations.
2. Number of Records to Sample – The number of cases to sample for lower authority
appeals quality depends on the total number of lower authority appeals decisions
reported by the state in the preceding calendar year from ETA 9054 Appeals Time
Lapse report, cell C1. States reporting 40,000 or more decisions completed from the
previous calendar year will sample 40 decisions each quarter for quality review.
States reporting fewer than 40,000 decisions in the preceding calendar year will
sample 20 decisions each quarter for quality review. State may sample larger
numbers if they choose, but all the decisions sampled must be reviewed and entered
into the Unemployment Insurance Report (UIR) database in order to preserve the
validity of the sample.
Note: Interval sampling can be implemented with no difficulty in states whose
automated systems allow appeals disposed of by withdrawal, dismissal, or “no show”
to be identified by code and excluded from the universe. If these types of disposals
are indistinguishable and cannot be excluded from the universe before sampling, there
are three alternatives to pursue.
- 70 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
o The first, and possibility easiest, method would be to add a marker with which
to indicate those lower authority appeals in which an actual hearing led to a
decision. The marked appeals would constitute the universe for pulling a
random sample by interval sampling.
o As a second alternative, IT could be asked to randomize the lower authority
appeals file transactions within the quarter being reviewed. Randomizing
routines are readily available, and one the file is randomized, the quality
reviewers can begin drawing their sample from the top of the list, examining
each record to be certain it meets criteria before saving it to the sample list.
As many records as necessary can be pulled and examined until the required
number is obtained, and the result will be a random sample for valid appeals
decisions.
o A third approach requires running the sampling routine three times. First,
draw a random sample of twenty decisions from the universe, removing them.
Then draw a second sample of 5 decisions from the remaining universe,
removing them. And finally, draw a third sample of 3 decisions for the
universe remaining. If all twenty of the first sample are valid hearings
decisions, the next two samples will not be needed. If only 15 of the first
sample are valid, move to the second sample of 5. If all of them are valid,
stop. But if only 4 of them are valid, the third sample will be needed. The
drawback here is that to preserve sample integrity, all of the valid cases from
the third sample must be reviewed and entered, even if only one is needed.
3. Random Number. This is the third critical number necessary to perform the
sample calculations. It is represented as “R” in the formulas. Random numbers
are distributed by the National Office for each calendar year, may be generated on
the state’s IT system, or may be obtained from any statistics manual.
FORMULAS TO IDENTIFY RECORDS FOR QUALITY SAMPLES
The following are the steps needed to determine which records to select for the sample. These
steps must be repeated for each sample that will be selected.
A count of the total number of transactions in the universe must be performed. If automated,
the state’s IT staff can supply this number. This number is represented by "P" in the
calculations.
Determine the number of cases to sample. Based on the number of lower authority appeal
decisions reported by the state in the previous calendar year, determine the number of cases
to sample for each. The letter "N" represents sample size in the calculations.
Obtain a random number. In the calculations, "R" represents the random number, which can
be obtained from the NO, from a statistics handbook, or from the IT system. The random
number must be a decimal between 0 and 1 and must be at least three digits (for example,
- 71 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
.729). For states with large universes, the random number must contain four digits, if the
sampling interval is greater than 1,000.
After the above mentioned numbers are identified, several calculations must be performed.
Balanced Systematic Sampling
CALCULATIONS
First, determine the sampling interval (K), by dividing the sample size into the universe size. If
the result of this calculation is not a whole number, round the result to the nearest integer.
K = P/N (round to the nearest integer)
Second, determine the starting point (I) within the universe. This is accomplished by multiplying
the sampling interval (K) by the random number (R) and rounding to the nearest integer.
I = (R*K) (round to the nearest integer)
Next, "N" cases must be selected. This is accomplished by selecting pairs of cases (J) until all
the cases have been identified. First, the number of pairs must be determined by:
If N is even, J = 0, 1, 2, ... ( ½ N - 1)
If N is odd, J = 0, 1, 2, ... ½(N - 1) - 1, the remaining case is calculated separately.
Once the number of pairs is determined, the cases are selected by using the following formulas:
I + JK and (P - JK) - I + 1
The remaining (odd) case is calculated by:
I + ½(N - 1)K
CALCULATIONS EXAMPLES
Example 1: P = 43, N = 5, R = .261
K = 43/5 = 8.6 = 9 (rounded)
I = (.261 * 9) = 2.349 = 2 (rounded)
Since N = 5,
J = ½ (5 - 1) - 1 = 1
- 72 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
The following records would be selected:
I + JK (P - JK) - I + 1
when J = 0 2 + (0*9) = 2 (43 - 0*9) - 2 + 1 = 42
when J = 1 2 + (1*9) = 11 (43 - 1*9) - 2 + 1 = 33
The remaining case is calculated by: I + ½ (N - 1)K
2 + ½ (5 - 1)9 = 20
Records 2, 11, 20, 33, and 42 would be selected for the sample.
Example 2: P = 244, N = 10, R = .743
K = 244/10 = 24.4 = 24 (rounded)
I = (.743 * 24) = 17.832 = 18 (rounded)
The following records would be selected:
18, 42, 66, 90, 114, 131, 155, 179, 203, 227.
Systematic Sampling
Under certain circumstances, balanced systematic sampling can result in the selection of
duplicate sample cases, especially if the population is small. To avoid duplicates, systematic
sampling can be used as an alternative selection method.
First, a skip interval is computed by dividing the number of records in the sampling frame (P) by
the number of records to be sampled (N). The first sample case selected is determined by
multiplying the skip interval by the random start number (R), which is obtained as described for
balanced systematic sampling. The product of the skip interval and the random start number is
rounded to the nearest integer. If the rounded integer is zero, the case corresponding to the
rounded skip interval is selected as the first case in the sample.
CALCULATIONS EXAMPLES
Number of Records in the Sampling Frame (P) = 118
- 73 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
Random Start Number (R) = .261.
Total Number of Cases to be Sampled (N) = 20.
Skip interval (K) = 118 /20 = 5.9
Initial case selected (I) = .261 x 5.9 = 1.54 = 2 (rounded)
Record 2 in the sampling frame is the first record selected for the sample. Subsequent cases are
selected using systematic sampling.
1. Select the initial sample case as described above.
2. Select the next (N-1) cases by adding multiples of the skip interval (K), rounded to the
nearest integer, to the case number of the initial selection (I): I + round(JK), where J =
1,2,...,(N - 1).
In the example, cases 2, 8, 14, 20, 26, 32, 37, 43, 49, 55, 61, 67, 73, 79, 85, 91, 96, 102,
108, and 114 will be selected from the sampling frame of 118 records.
If the last case designated for selection by the sampling algorithm is greater than the size of the
sampling frame (P), the case will be selected from the beginning of the sampling frame. That is,
the sampling frame will be considered to be circular. For example, if the last case selected is P +
1, the 1st case in the sampling frame will be selected.
The general rule is:
if (I + round(JK)) > P, select case H, where H = [(I + round(JK)) - P] and 1 < H < I.
Other Automated Approach
The state may choose to use another automated method of identifying which records will
constitute the sample. However, it is imperative that the formulas described on the previous
pages or an alternative method approved by the National Office be used to ensure that the sample
selection is non-biased.
Steps 4 & 5 - Select Cases and Create Sample Files
The last steps of the sampling process involve the creation of files containing the selected sample
cases. These steps use the universe file from step two and the calculated record numbers from
step three to create the sample file. The calculated record numbers from step three identify
which records from the universe file will comprise this file.
- 74 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
The sample case file must contain, at a minimum, the skeleton fields identified in ET Handbook
402. The skeleton fields for lower authority appeals are the case identification, the decision date,
and the case docket number.
States are responsible for creating the programs/utilities necessary to extract the data elements
for the universe files for each quarterly sample. USDOL cannot provide programming resources
to write or modify sample selection routines.
The NO sampling system consists of two COBOL programs which were developed for the Tax
Performance System (TPS) samples: PICKNMBR and SAMPS0nn. The TPS SAMPS0nn
programs, specifically the TPS Status Determination sample selection program, can serve as a
general model for the development of a sample selection program specific to the Appeals Quality
program. It would require extensive modifications for use in selecting lower authority appeals
samples. States are discouraged from undertaking this task.
The PICKNMBR program can be used for every sample process. The calculations performed by
this program are designed to ensure a non-biased systematic sample. This program is not
dependent on the method used to select sample cases.
The PICKNMBR program can be used if the universe is:
not stored using the NO format; or if
kept as transactions occur.
PICKNMBR Processing – The narrative below describes the processing steps that are performed
in the PICKNMBR program. These processing steps are also illustrated in the flowchart format.
o 0000-DRIVER-ROUTINE – this section is the main routine for the program. This
routine calls all of the other routines.
o 0010-LISTING-HEADING; 0020-LISTING-HEADING – these sections control printing
of the report page and column header information, line count, and page advancement
o 0011-CS011, 0031-CS031, 0041-CS041, 0042-CS042, 0043-CS043, 0051-CS051, 0061-
CS061 – these sections identify lower authority appeals and corresponding year/quarter
fields for the activity being processed.
o 0100-OPEN-ROUNTINE – this section opens the input file CNTRL-DATA, and output
files SELECT-NUMBERS, PICKNUM-LIST and reads the CNTRL-DATA file.
o 0110-CNTL-OPTION – this section determines which function is being processed.
o 0120-CNTL-ERROR – this section validates the three CNTRL-DATA file fields
- 75 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
CNTRL-RANDOM-ALF, TRANS-REC-CNTRL-ALF, and SAMPLED-NMBR for non-
numeric values. These fields must be numeric for the program to execute. To assist in
the validation, a STOP-FLAG field is incremented by a certain amount. As a result, a
comparison is made between the incremented STOP-FLAG and a value in the range 0
through 7. Within this range, different error messages will be displayed depending upon
the error detected, and then the program is terminated.
o 0130-FIPS-TABLE – this section searches SESA-ID in the FIPS table to find the exact
state name associated with its abbreviation.
o 0140-SPL-TABLE – this section searches the SAMPLE-TYPE field of the CNTRL-
DATA file for a corresponding match in the sample table (SPL-TYPE-DATA). If a
match occurs, the sample type abbreviation is replaced by the exact sample type
description to be utilized in the output report formats.
o 0200-CALC-SKIP-INTERVAL – this section calculates the SKIP-INTERVAL (K)
utilizing the following K=P/N. P: the total number of records, N: sample size.
o 0300-INITIAL-CASE – this section calculates the initial sample case number (I). It is
determined by truncating the result of I = R * K + 0.5. The INITIAL-CASE field (I) is
defined as a 5-position numeric integer. The right side of the equation I = R*K + 0.5
yields a real number, thus allowing (I) to truncate the result of the calculation. R:
CNTRL-RANDOM-ALF, and K: SKIP-INTERVAL.
o 0310-CHECK-ODD-EVEN – this section determines whether the number of records (N)
to be selected for the sample (SAMPLED-NMBR) is either odd or even. If (N) is odd,
the 0320-ODD-RTN procedure is executed.
o 0320-ODD-RTN – this routine calculates the additional number that was described in the
random function formula. The equation is as follows: ONE-MORE-REC = I + ½ (N -1)
* K.
o 0330-CREATE-REC – this routine writes the calculated record numbers to an output data
file (SELECT-NUMBERS) and an output print file (PICKNUM-LIST). A record counter
(MATCH-CNTR) is incremented by one each time a record is added to the files.
o 0400-REMAINING-NUMBER – this section performs the calculations to determine the
remaining numbers for the sample. As the balanced systematic sample of the random
function formula, if N is even, N/2 pairs of records are selected. If N is odd, the iteration
number is as follows: 0, 1, 2, ….. ½ (N -1) - 1 and ½ (N -1) - 1 pairs of records are
selected.
o 0500-CALC-SKIPINTERVAL – this section will calculate the SKIP-INTERVAL-B for a
transaction sample size less than 200 using the equation K = P/N (K not rounded).
- 76 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
o 0600-CALC-INITIAL-CASE – this section calculates the initial sample case number (I)
for transaction sample size less than 200. It is determined by truncating the result of I =
R*K + 0.5.
o 0700-SELECTED-NUMBERS – this section performs the calculations to determine the
numbers to select for the sample. This procedure is based on the transaction sample size
less than 200. The second record is calculated by adding the skip interval (not rounded)
to the initial case (truncated) and rounding the result. The remaining numbers are
calculated by adding the skip interval to the previous (not rounded) number and then
rounding the result. This process is continued until all the records have been calculated.
o 0800-CHK-SPL-NBR – this section verifies that the number of records written to the
SELECT-NUMBERS files equals the number of records to be sampled (SAMPLED-
NMBR) in the CNTRL-DATA file. If these fields are not equal, the error message is
displayed.
o 0900-TRAILER-LIST – this section prints the information that was used to perform the
calculations and select the record numbers.
o 9999-CLOSE-FILE – this section closes the files CNTRL-DATA, SELECTED-
NUMBERS, and PICKNUM-LIST.
- 77 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PICKNMBR
Start Run
Initialize Counter
Open input and
output files
Read
control record
A
- 78 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PICKNMBR
A
Set record type
(cntrl-data)
Set stop flag for Display
error checking Error Stop Run
Message
Validate
State Identification Field
(SESA-ID)
Set Sample Type
B
- 79 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
B
No
Is Trans-
Rec-Cntr
C
> 200 ?
Yes
Calculate
Skip Interval &
Initial Case
Calculate
Iteration Number for
Loop control
Yes
Is Sample Select one more Print Case
Number Case Number Number on
Odd? listing
No
Write to
selected file
D
- 80 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PICKNMBR
D
Select Print Case
One Pair of Numbers on Write Record
Numbers Output listing to selected file
Decrease
Iteration Number
By One
No
Is Sample
Number
Odd?
Yes
E
- 81 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PICKNMBR
C
Calculate
Skip Interval
& Initial Case
Calculate Print Case
Write Record
Remaining Numbers on
to selected file
Number Output listing
Increment
Select record
Counter by 1
Yes
Is select
counter <
Sample-
number
No
E
- 82 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
PICKNMBR
E
Is sample No
Error message
counter = Listing
to sample
cases?
Yes
Information for
Calculations
Close files
Select-Number
Cntrl-Data
Picknum-List
Stop Run
- 83 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
APPENDIX B
A Guide to Unemployment Insurance Benefit Appeals Principles and Procedures
The original hardcopy was produced by U.S. Department of Labor, Manpower Administration,
Unemployment Insurance Service, Office of State Operations, Division of Determinations and
Hearings in January 1970. The front and back cover of the hardcopy document was in the color
of yellow. Most individuals refer to the Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures as the “yellow book.” The book is reproduced as written.
This space intentionally left blank.
- 84 - March 2011
ET Handbook No. 382, 3rd Edition
Handbook for Measuring UI Lower Authority Appeals Quality
A
Guide to
Unemployment
Insurance
Benefit Appeals
Principles
and
Procedures
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
Table of Contents
Page
Introduction ....................................................................................................................1
Fair Hearing .............................................................................................................1
Purpose of the Statement..........................................................................................3
Use of Term ..............................................................................................................3
Administrative Appeals Hearings .................................................................................4
Administrative Hearings Compared to Court Trials ............................................4
Authority and Responsibilities of Appeal Tribunal...............................................4
Uniformity of Legal Interpretations........................................................................6
Consistency between Benefit and Coverage Decisions ..........................................7
Scope of Hearing .......................................................................................................7
Board of Review ........................................................................................................8
Filing and Perfecting Appeals........................................................................................8
Local Office................................................................................................................9
Form of Appeal .........................................................................................................9
Time within Which Appeals Must Be Filed............................................................9
Notice of Hearing ....................................................................................................10
Payment of Benefits Pending Appeal ....................................................................11
Preparation for the Hearing ........................................................................................11
Review of Appeals Case upon Receipt in Appeal Section ...................................11
Time and Place of Hearing.....................................................................................12
Hearing Preparation by Appeal Tribunal ............................................................14
Impartiality of the Tribunal and Challenges to Interest.....................................14
Withdrawals postponements, Reopenings, and Subpoenas ................................15
Interstate Appeals ...................................................................................................17
Hearings and Decisions ................................................................................................17
Conduct of Hearing.................................................................................................17
Representation.........................................................................................................18
Nonappearance of Parties ......................................................................................20
Record of Hearing...................................................................................................20
Decision ....................................................................................................................21
i
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
Table of Contents (continued)
Page
Evidence .........................................................................................................................23
Testimony under Oath or Affirmation .................................................................24
All Evidence to be Made a Part of the Hearing Record ......................................24
Exhibits ....................................................................................................................24
Best Evidence...........................................................................................................24
Affidavits and Unsworn Statements......................................................................24
Hearsay ....................................................................................................................25
Business Records.....................................................................................................25
Stipulation of Fact...................................................................................................26
Presumption of Fact................................................................................................26
Official Notice..........................................................................................................26
Expert and Opinion Evidence................................................................................26
Privileged Communications ...................................................................................27
Self-incrimination ...................................................................................................27
Meaning of Selected Terms ....................................................................................27
Burden of Proof.............................................................................................................28
Mass Appeals.................................................................................................................31
ii
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
I. Introduction
This guide for appeals and hearings sets forth procedures synthesized from the experience of the
several States and the principles on which such procedures are based. The procedures are sound
and practical, as well as fair to claimants and to other interested parties. However, it should be
understood that while the procedures expressed here are appropriate for most cases, other
procedures are equally effective for some cases.
The “fair hearing” provision in section 303(a)(3) of the Social Security Act requires a reasonable
opportunity for workers whose claims are denied to be heard by an impartial tribunal in an
adjudicatory proceeding which assures them of elementary fairness. The “methods of
administration” provision in section 303(a)(1) requires that procedures for appeals and hearings
be reasonably calculated to pay benefits promptly when due. From the outset of the
unemployment insurance program it has been recognized by both State and Federal officials that
the mandate of these sections is for appeal and hearing procedures that take account of the
circumstances of unemployed workers and the special needs of the program.
Payments of unemployment insurance are of comparatively small amounts; they represent at best
a partial wage replacement calculated to do no more than pay for basic, non-deferrable
necessities; and unless paid promptly they do not serve their purpose. Further, claimants are
workers who are unemployed and typically are unrepresented. Finally, each agency has a great
volume of claims which it must handle.
Accordingly, to be sound and practical, as well as fair to claimants and to other interested parties,
appeal and hearing procedures in this program must, as one respected authority has said, be
“simple, speedy and inexpensive. 1 Simplicity assures that parties may know and understand
their rights; it precludes formal and technical procedures which place undue burdens on parties
which tend to impair their ability to protect their rights. Speed assures the prompt payment of
benefits when due. Low expense means that no individual may be deprived of his rights merely
because he cannot afford to retain representation or to incur other expense in the pursuit of these
rights. In addition, procedures should include making all parties aware of available assistance by
claims and appeals personnel, so that they may exercise, as well as understand, their rights.
A. Fair Hearing
Hearings must be fair, and they must therefore be conducted in accordance with procedural
safeguards. The essential requisites of fairness, although expressed in many ways, include the
following elements which have been excerpted from case law:
“timely notice to all claimants of every material step in the proceedings” 2
1
Robert M. Benjamin, Administrative Adjudication in the State of New York, 1942, at page 13.
2
Pacific Live Stock Co v. Oregon Water Board, 241 U.S. 440, 453 (1916).
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
“full opportunity to be heard in respect of all that bears upon the validity, extent and
priority of their claims 3
“to hear the evidence introduced against him” and “to know the claims of his opponent 4
“to produce evidence and witnesses” and to “offer evidence in explanation or rebuttal” 5
“to cross-examine witnesses” 6
“to make argument” 7
“evidence adequate to support pertinent and necessary findings of fact 8
“that the decision of the Board shall be governed by and based upon the evidence
produced at the hearing” 9
“that the decision shall not be without substantial evidence taken at the hearing to support
it.” 10
As the courts have held, however, no particular form or procedure is required to constitute due
process in administrative hearings.” 11
3
Ibid.
4
Philadelphia Co. v. Securities and Exchange Commission, 175 F.2d 808, 817 (CA DC, 1948), dismissed 337 U.S.
901 (1949).
5
National Labor Relations Board v. Prettyman, 117 F.2d 786, 790 (CCA 6, 1941): 18 ALR 2d 556. See also
Whitfiled v. Hanges, 222 Fed. 745, 749 (CCA 8, 1915).
Interstate Commerce Commission v Louisville & Nashville Railroad Co., 227 U.S. 88, 93 (1913). See also Svarney
v. United States, 7 F.2d 515 517 (CCA 8, 1925).
6
Interstate Commerce Commission v. Louisville & Nashville Railroad Co., supra. See also The Ottawa, 70 U.S.
268, 271 (1865O: Philadelphia Co. v. Securities and Exchange Commission, supra; and Svarney v. United States,
supra.
7
Philadelphia Co. v. Securities and Exchange Commission, supra. See also Morgan v. United States, 298 U.S. 468
480 (1936); WJR v, Federal Communications Commission, 174 F.2d 226 (CA DC, 1948), reversed on other
grounds, 337 U.S. 265 (1949); and L.B. Wilson, Inc., v. Federal Communications Commission, 170 F.2d 793 (CA
DC, 1948).
8
Morgan v. United States, 298 U,S. 468, 479 (1936).
9
National Labor Relations Board v. Prettyman, supra. See also Morgan v. United States, supra; Interstate
Commerce Commission v. Lousiville & Nashville Railroad Co., supra; and Whitfield v. Hanges, supra.
10
Whitfield v. Hanges, 222 Fed. 745, 749 (CCA 8, 1915). See also Morgan v. United States, supra. See also Morgan
v. United States, supra.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
What is required is elementary fairness—that is, that “… the course of the proceeding shall be
appropriate to the case and just to the party affected …” 12 The highly regarded Benjamin
Report 13 expresses the view long held in regard to this program that “the most satisfactory
procedures may call for much more than due process alone would require. 14
The recommended procedures are designed to effectuate the objectives discussed above.
Whether these or other equally suitable alternatives are adopted, it should be kept in mind that
more than mere form of procedure is involved:
“Not only the attitude and conduct of the administrator but the form of the procedures
themselves should be directed to making the person dealt with feel that he is being fairly dealt
with. There is more involved here than the simple desirability that this should be so. To a
considerable degree, the successful operation of any procedure requires cooperative effort by all
the parties. Procedure fair on its face will go far to enlist such cooperation.” 15
Insomuch as this guide may foster those ideas and encourage simplification of appeals and
hearings procedures in the States, it will have accomplished its purpose.
B. Purpose of the Statement
Whether or not a hearing is a “fair hearing” depends on what is done, in the recognition of, and
giving effect to, some right of a party. It is from this standpoint that this statement undertakes to
emphasize various methods and procedures by which the goals of a “fair hearing” may be
reached. The statement, however, does not purport to express requirements of Sections 303(a)(3)
and 303(a)(1), although it is consistent therewith.
C. Use of Terms
For the purposes of convenience and conciseness, the term “referee” has been used to refer to all
first-appeal authorities, regardless of differences in statutory or State designation. Similarly, the
term “board of review” has reference to all second-level administrative appeals bodies. In those
11
National Labor Relations Board v. Prettyman supra. See also Federal Communications Commission v. WJR, the
Goodwill Station Inc., 337 U.S. 265, 275 (1949); Missouri ex. Rel. Hurwitz v. North, 271 U.S. 40, 42, (1926); and
Ballard v. Hunter, 204 U.S. 241, 255-257 (1907).
12
Whitfield v. Hanges, supra. See also Missouri ex rel. Hurwitz v. North, supra and National Labor Relations
Board v. Prettyman, supra.
13
Robert M. Benjamin, Administrative Adjudication in the State of New York, 1942, a report to the Governor of
New York.
14
The Benjamin Report, page 12.
15
Ibid.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
instances in which the principal or recommended procedure is applicable to the functions of both
a referee and a board or review, the term “appeal tribunal” is used.
II. Administrative Appeals Hearings
A. Administrative Hearings Compared to Court Trials
Unemployment Insurance administrative appeal tribunals, in contrast to court judges, should
actively participate in the development of the facts in a case, even where the parties are
represented. Among the reasons for an appeal tribunal’s more active participation in the
development of facts is the direct interest of the public in the decision of an unemployment
insurance appeal. In an ordinary civil suit, the public’s interest is limited, since the proceedings
usually affect only the particular individuals involved. Costs or damages, if any, will ordinarily
not be paid out of the public purse. In unemployment insurance appeals, however, the public has
a direct interest that benefits be paid to the eligible unemployed and that the unemployment fund
shall not be depleted by payments to claimants who are not entitled to benefits.
The unemployment insurance appeal tribunal has the task of discovering the facts and making
affirmative findings. It may not rely on the parties to present their cases and facts, as they
understand them, without its assistance. If they do not know enough to ask the right questions, it
is the tribunal’s duty to conduct the examination and to get full information into the record.
These responsibilities of an appeal tribunal may be contrasted with the less active functions of a
judge in a jury or non-jury adversary proceeding, where the parties must bear the burden of
making out their cases.
The informal hearing process is well adapted to the needs of benefit claimants. Such claimants
are usually unemployed at the time of the appeal; often they are in need of money. Any delay in
the payment of benefits is a severe burden upon them. They are unversed in legal procedures
and unable to make formal presentations of their cases. The sums involved, moreover, are not
usually large enough to justify them in hiring lawyers. Thus, an appeal tribunal should not only
supervise the hearing, in order to insure the protection of all rights, but should assume the
responsibility for eliciting the facts.
Additional differences between court proceedings and the appeal tribunal hearings are the result
of provisions of the State unemployment insurance laws to the effect that appeal tribunals are not
bound by common law and statutory rules of evidence. Consequently, while a tribunal may
receive evidence at the hearing which is not reliable, it should base its findings only on evidence
which is substantial both as the quantity and quality.
B. Authority and Responsibilities of Appeal Tribunal
An appeal tribunal’s responsibility for adjudication requires complete independence of action on
the part of the tribunal. The appeal tribunal serves, in effect, as both judge and jury. In addition,
it is obligated to get the evidence by questioning witnesses and, if necessary, by subpoenaing
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
witnesses and records and ordering investigations. It is the tribunal’s responsibility to get all the
facts and to apply the law and the reasoning fairly and wisely. This great responsibility requires
that the appeal tribunal be completely independent in obtaining facts and making decisions. Its
responsibility is not lessened in any degree by the possibility that a higher authority may later
review its decision. A referee, for example, has no way of knowing that this will occur when he
is called on to hear and decide a specific case. In fact, only a comparatively small percentage of
a referee’s decisions are further adjudicated. Therefore, the referee should act—and be allowed,
to act—in every instance as though this is the parties’ last opportunity for a full and fair hearing
and decision in that case.
Under some State laws, appeal tribunals organizationally are a part of the State agency. When is
so, the appeal tribunal should make certain that such a connection does not cloud its judgment or
diminish its resolution for the proper discharge of its duties. Whatever the organizational
structure the tribunal’s authority and responsibility for providing a fair hearing and making a
proper decision remain the same.
The need for a broad authority on the part of a referee arises, in part, from the fact that the parties
to the appeal, especially when they are unrepresented by attorneys, may not be relied upon to
define all the issues, or to offer complete proof. A further consideration is the need to avoid
needless delays in the adjudication of a case or an additional appeal on the same claim.
By way of example, if the appeal is from a disqualification imposed for voluntary leaving, the
referee should be authorized. If it is warranted by the facts elicited at the hearing, to find that the
claimant was not available for work. Similarly, if the record raises the issue of a work refusal by
the claimant after the date of appeal but before the date of hearing, the referee should be
authorized to decide that point also, assuming that the determination upon it has not become
final.
An appeal tribunal should approach each case with an open mind; its concern should be to
provide a fair hearing and a prompt and just decision under the law.
“(The judge) shall know nothing about the parties, everything about the parties,
everything about the case. He shall do everything for justice; nothing for himself;
nothing for his friends; nothing for his patron; nothing for his sovereign. If, on one side,
is the executive power, and the Legislature and the People—the sources of his honors, the
givers of his Daily bread—and on the other an individual nameless and odious, his Eye is
to see neither, great nor small; attending only to the “trepidations Of the balance.”—
Rufus Choate (1853)
The importance of an appeal tribunal’s attitude cannot be overemphasized; the results of its work
will be, to a considerable degree, a reflection of the tribunal’s attitude. It should not be
impressed by the identity of the interested parties or their representatives, or by the personal
conduct of such individuals at the hearing. The appeal tribunal’s only interest should be to
provide a fair hearing, and to make a just decision under the law.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
It is not enough for a hearing to be fair; a hearing must also give the appearance of fairness. A
hearing that is technically fair, but gives an appearance of unfairness, is unfair in practical effect.
An appeal tribunal which seems interested when the employer is testifying and somewhat bored
when the claimant is testifying may, in fact, give the testimony of both full and fair
consideration. The claimant, however, who has noticed the tribunal’s apparent concern with all
the employer has said, and its seeming lack of interest as soon as the claimant began to testify, is
likely to conclude that the hearing is unfair.
An appeal tribunal bears the responsibility for providing both a prompt hearing and a decision.
Thus, the appeal tribunal should schedule a hearing within a very short time after the receipt of
the appeal. The claimant can usually ill afford to wait, and frequently is unable to attend a
delayed hearing because he has various other reasons. To procrastinate the scheduling or the
hearing of a case may deny the claimant a reasonable opportunity for a fair hearing and defeat a
basic concept of the unemployment insurance program—the prompt payment of benefits.
C. Uniformity of Legal Interpretations
The parties to an appeal, claims determination personnel, and the public Expect reasonable
consistency of principle, reasoning, and result in appeals decisions involving similar sets of facts.
In attaining such a goal, decisions of higher tribunals are considered as binding upon lower
tribunals, while those of coordinate tribunals may be considered as persuasive, but not binding.
To illustrate, referees, in deciding questions involving the interpretation of law, should follow
decisions of the board of review and of the State courts. Decisions of fellow referees, opinions
of agency counsel and of attorneys general, and agency interpretative regulations and policy
statements are considered as persuasive, but not binding.
Referees should be encouraged to discuss cases among themselves in order to apply uniform
interpretations. If a referee cannot agree with a fellow referee’s interpretation, he should decide
the case on the basis of the interpretation he believes to be correct or should refer the question to
the board of review.
Following the previous interpretation of higher tribunals does not mean blind obedience by lower
tribunals. The lower tribunal, for example, should compare the facts before it with those in the
higher tribunal’s case in order to determine if sufficient similarity of circumstances exists for it
to apply the rule of the higher authority’s decision.
Consistency of interpretation is not self-enforcing. It is attainable only through specific devices
designed to achieve that result. A party’s right of appeal is the basic device for this purpose, but
it should be supplemented by procedures such as:
1. The right of the board of review to take over a case pending a referee, or one in which the
period for appealing from the referee’s decision has not yet expired;
2. The right of the referee to refer questions of law to the board of review;
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
3. Conference among referees;
4. Use of precedent manuals, materials and decisions;
5. Adequate training for referees.
D. Consistency Between Benefit and Coverage Decisions
An appeal tribunal may not deny benefits to a claimant whose benefit rights are dependent upon
his status as a covered worker, merely because the status of his employer was decided in an
earlier employer status or contribution proceeding to which the claimant was not a party. The
denial of benefits, on the basis of such a prior determination in a contribution proceeding, would
deprive the claimant of a fair hearing on his claim for benefits, since he would not have been
given notice and opportunity to be heard on the issue. In other words, any determination made
as the result of an employer- liability proceeding is not binding on the claimant unless he was a
party to that proceeding. The fair hearing requirement is as applicable to questions involving the
eligibility or disqualification provisions of State laws.
State agencies, depending upon their organizational structure, utilize various methods for dealing
with conflicts between benefit and coverage decisions. While some agencies decide such issues
in liability hearings to which the claimant is joined as a party and other agencies decide the
issues in benefit hearings to which the employer is joined, such proceedings should result in a
decision which determine both the employer’s liability and the claimant’s right to benefits
without the necessity for further proceedings. In such proceedings the information available in
the employer status unit should be presented in evidence, but such information is not binding on
the appeal tribunal nor is a prior decision on liability binding on the claimant or appeal tribunal
in a subsequent benefit proceeding.
E. Scope of Hearing
Appeal tribunals should be authorized to receive evidence upon, and to decide all issues or
questions of law which arise during the course of the hearing, subject to the following
limitations:
1. An issue which has been determined and has become final should not be re-opened—For
example, assume a claimant was disqualified for a five-week period for refusing suitable
work. The determination was not appealed and became final. During the five-week
period, he was again disqualified for refusing another offer of work; this time he
appealed. The appeal tribunal should confine the appeal hearing to the second work
refusal;
2. Beyond the issue upon which the appeal was based, or other issues raised by the parties
or the appeal tribunal, any other issues considered should be only those discovered as a
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
result of inquiry into matters germane to the appealed issue; in other words, the appeal
tribunal should not permit a “fishing expedition: to seek out issues;
3. Any issues, over and above those set forth in the notice of hearing, should not be heard or
decided without first giving notice to the parties. In providing notice to the parties of a
new issue, the referee should explain that issue to the parties and advise them of their
right to an adjournment, if they so desire, in order to prepare for a hearing upon new
issue. If the parties are willing to continue without further notice, however, the referee
should proceed to hear the new issue.
F. Board of Review
A board of review serves as the second and final administrative appeal Tribunal on benefit
issues, and has the final administrative responsibility for establishing interpretations of law. To
carry out its responsibilities, the board of review should have the authority to remove to itself
any appeal pending before the referee; in this connection, a referee should be authorized to
certify questions of law to the board of review. While a board of review should be authorized to
decide second-state appeals on the basis of the record developed by a referee, it should not be
merely a reviewing body, but should take the necessary steps to complete a hearing record which
is inadequate. When necessary, the board should refer a case to a referee for additional
testimony or take such testimony itself.
A board of review should be liberal in the acceptance of additional evidence of additional
evidence and should make any such evidence received a part of the record. When additional
evidence is taken on an appeal to the board of review, the procedure should include all of the
elements of a fair hearing applicable to referee hearings. The decision of the board of review
should conform to the principles suggested for referee’s decisions.
III. Filing and Perfecting Appeals
A. Local Office
Written notices of determinations may be said to affect the appeals process. To the extent that
such notices are well prepared, they enable an interested party to understand the basis for the
agency’s action and to make an intelligent decision as to whether or not to file an appeal from the
determination.
While this statement is not about local office procedures as such, it should be noted that local
office personnel exercise a vital function in the appeal process. It is the local office staff to
whom claimants, particularly, look for assistance in connection with their appeal rights, since
local offices are their normal point of contact with the State agency. Local office personnel
should be prepared to explain determinations which may be the subject of appeal, assist in the
completion of appeal notices, and advise on such matters as the actual right of appeal, the
manner and time of filing appeals, and the manner in which appeal hearings are conducted.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
B. Form of Appeal
1. Informal Filing Procedures. Any timely written statement, signed by an interested party
or his representative, indicating dissatisfaction with a determination or the party’s desire
for its review, should be accepted as an appeal. No specified agency form should be
required to constitute a valid appeal. The procedures for filing constitute a valid appeal.
The procedures for filing firs-level and second-level administrative appeals should be as
informal as possible. Applicable agency forms should be written in simple, non-legalistic
language. The right of appeal should not be limited by requiring a detailed or legally
sufficient statement of the grounds or issues for appeal, since such requirement would
represent a restriction upon an unqualified right.
2. Completion of the Appeal Notice. Agency personnel should assist the appellant in
completing the appeal form or notice, particularly if reasons are required by statute in the
development of a concise statement of the reasons for appeal. The appeals request should
be signed by the appellant or his representative. It should include information upon
which the appeal tribunal might determine the timeliness of the appeal and identification
to facilitate the assembly of the pertinent records.
If the statute gives the board of review discretion to accept or reject applications for
review on the basis of the adequacy of the reasons for requesting a review, the appellant
should be advised to include his reasons for appeal, and he should be furnished with
necessary assistance.
3. Filing Appeal by Mail or Personal Delivery. Interested parties should be allowed to file
an appeal by mail or by delivery (in person or be messenger or agency) at any
employment security office.
C. Time within Which Appeals Must be Filed
An appeal should be considered to have been filed as of the time of mailing or delivery to any
employment security office of any written statement, signed by the appellant or his
representative, indicating dissatisfaction with a determination or the party’s desire for its review.
An appeal, so initiated, should be considered timely if it was made within the period of time
established under State law for the filing or an appeal.
Under State law contrasting considerations have entered into the establishment of the time limits
within which appeals may be filed from initial determinations and from first-and-second-level
administrative appeals decisions. On the one-hand, there is a need for a short appeal period,
since benefits may not be payable until a determination has become final. On the other hand,
there is need for sufficient time for an interested party to consider whether he wishes to exercise
his right of appeal or to seek advice on appealing.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
A few situations relating to the timeliness of appeals are discussed below:
1. Although an appellant may be required to complete an appeal form before a hearing is
held, the date of that form does not necessarily determine the timeliness of his appeal. If
a written statement indicating the appellant’s intention to appeal was made previously,
the timeliness of the appeal should be determined by the date of the earlier statement.
2. An appeal should be considered to have been filed as of the date of its delivery to any
representative of the agency or, if mailed, as of the date of the postmark on the envelope.
An appeal that is mailed but has no postmark date should be considered if, on the basis of
customary mail delivery practice and of the actual date of delivery, it may be presumed to
have been mailed within the appeal period. The appellant should not have to incur the
risk of delays in the delivery of mail or of any errors by the agency in dating or routing
the appeal.
3. An appeal tribunal should be authorized to disregard delay in perfecting an appeal within
the prescribed period, when such delays result from circumstances beyond the appellant’s
control. If an appeal is filed late because of some agency error, for example, the appeal
should be deemed timely.
D. Notice of Hearing
Parties should be given adequate and timely notice or proceedings that may affect their rights.
The notice of an appeal hearing may be the first direct communication from the appeal tribunal
to the parties. Because it plays an important part in enabling the parties to understand the
hearing process, it should be prepared with care.
1. Content of Hearing Notice. The appeal tribunal’s notice of hearing should state clearly:
a. the calendar date and the specific hour of the hearing;
b. the place of hearing—street address, floor, and designated room;
c. the purpose of the hearing and a statement of the issues, including references to
the applicable statute, rule or regulation;
d. the necessity for attending the hearing and the disadvantage resulting from failure
to attend;
e. such procedural rights as the right to present testimony and other evidence to
relative to the appeal, to bring and to subpoena witnesses and records; to be
represented; to submit briefs; to present oral argument; to challenge the appeal
tribunal’s interest;
f. information concerning requests for postponement, continuation and reopening of
the hearing; and
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
g. advice as to where further information or assistance may be obtained.
Since the hearing notice may be the appeal tribunal’s only prehearing communication
with the parties, it may be used also to request information as to whether a party will
attend the hearing and, if not, whether he wishes to withdraw the appeal, or to postpone
the hearing.
2. Time Allowed to Prepare for Hearing. Hearing notices should be mailed to the interested
parties sufficiently in advance of the hearing date to enable the parties to prepare for the
hearing and to make any necessary arrangements for their representation and for the
attendance or witnesses, but not so long that the parties may forget about the hearing.
One to two weeks’ notice is sufficient. Regulations often prescribe a minimum of seven
days’ notice.
E. Payment of Benefits Pending Appeal
The payment of benefits not in dispute at the time an appeal is filed should not be delayed
pending a decision upon the appeal. For example, if the appeal involves only the question of
whether the claimant’s weekly benefit amount should be higher, that portion of the benefit
amount which is not in dispute should be paid immediately without regard to the pending appeal.
Similarly, if the only apparent issue in an appeal is the propriety of a given period of
disqualification or of ineligibility, the claimant should be paid benefits for those weeks claimed
following the disqualification period and preceding a decision on the appeal. For example,
where the disqualification in issue is for a fixed period of six weeks benefits should be paid to an
otherwise eligible claimant for the seventh week and thereafter. If the disqualification period is
variable as from one to ten weeks, benefits should not be withheld after the tenth week.
Withholding or benefits not in dispute penalized a claimant who files an appeal. If he had
decided to accept the disqualification and not to appeal, he would have been paid the benefits not
to dispute. He should be paid such benefits even if he files an appeal.
IV. Preparation for the Hearing
A. Review of Appeals Case Upon Receipt in Appeals Section
After an appeal has been received and recorded in the appeals section, it should be reviewed to
ascertain what actions are necessary to ready the appeal for hearing. Care should be taken that
the entire administrative file (local office file and that of any other agency office having pertinent
information) is obtained. A complete file will be better understood and might serve to avoid
delays in the later processing of the appeals.
When the review discloses a need for the attendance at the hearing of agency personnel or other
individuals, aside from the interested parties, a request should be made for such individuals’
presence at the hearing. Subpoenas should be issued as necessary.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
A word of caution may be needed as to those appeals which appear, on the surface, to be
untimely. Such an appeal should not be dismissed automatically but, instead, should be
scheduled for hearing so that the appellant will have the opportunity to establish that the appeal
had been filed timely or, if permitted by State law, that he had good cause for the untimely
appeal.
B. Time and Place of Hearing
Ordinarily, hearings should be scheduled in the order in which they are received, and at the
locations to which the claimants report and file their claims for benefits. In the great majority of
instances, hearings are scheduled with the expectation that all parties in interest will attend the
same hearing.
1. Controlling Considerations in Scheduling Hearings. A definite time and place for
hearing should be set for each appeal. Controlling considerations should be the prompt
disposition of the appeal and the selection of a place of hearing which is reasonably
convenient for each of the parties.
2. Scheduling Hearing in Thinly Populated Areas. When claimants are widely scattered in
thinly populated areas, a choice must sometimes be made between holding hearings
promptly or holding them nearer the claimant’s residence. In such cases, the appeal
tribunal may request claimant’s to travel greater distances than usually required, so that
it may concentrate enough hearings at a single location to justify hearings there. Care
must be exercised to assure that the advantages of an earlier hearing are not outweighed
by travel time, cost, or distance sufficient to deter claimants from appearing. A choice
should be offered to claimants in such cases, as to whether they prefer a prompt hearing
at some distance from home, or a less prompt one at a closer location, but in no case
should claimants be required to expend unreasonable amounts of time and money to
attend hearings.
In some instances, the interested parties may be willing to forego the Statutory time
allowed for preparation for the hearing in order to take advantage of the appeal tribunal’s
presence in the locality and to receive an earlier hearing in order to take advantage of the
appeal tribunal’s presence in the locality and to receive an earlier hearing than otherwise
would be possible. In obtaining such consent, the appeal tribunal should assure itself that
dispensing with the customary notice would not deprive the parties of the opportunity,
necessary for the fair hearing process, to make adequate preparation for the hearing.
3. Scheduling Hearings in Metropolitan Areas. In metropolitan areas where suburban
residents often work in the suburban work areas, greater promptness in hearings may be
achieved through the scheduling of hearings at a single, or central location. When a
central hearing location is not feasible because local travel patterns, costs, and parking
problems, etc., would cause hardship to many claimants, hearing locations which
conform to local claims office patterns are recommended.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
4. Separate Hearings (Intrastate Appeals). Ordinarily, claimants and interested employers
will attend a single hearing. a single hearing ordinarily should beheld, most often at or
near the office in which the claim was filed. The selection of such a hearing location is
justified to assure claimant a reasonable opportunity for a fair hearing, and because an
employer is normally better able to afford the travel than an unemployed claimant. In
some instances, employer at a single hearing may not be feasible, as in the case where the
places of residence (or business) of the claimant and the employer are a considerable
distance apart and it is impracticable for a employer to attend a hearing at a place
convenient for the claimant.
a. When Separate Hearings May be Scheduled. Separate hearings may be scheduled
only when the distance involved makes it impracticable for the employer to attend
a hearing at a place convenient for the claimant, or in other special circumstances
such as the inability of a necessary witness to attend a single hearing. Further,
even though the distance or the circumstances involved might justify separate
hearings, a single hearing should always be held if the parties agree.
Separate hearings may be scheduled only if the procedure followed preserves the
essential rights of the claimant. Necessarily, therefore, the authority to allow
separate hearings should be discretionary with the referee and strictly limited.
b. Order of Scheduling Separate Hearings. The order in which separate hearings are
scheduled should be determined by the nature of the issue in the appeal; i.e., the
first testimony should be taken from the party that can offer evidence essential to
the existence of that issue, so that the other party may understand and respond.
For example, in “discharge” cases, the employer’s testimony normally should be
taken first; in voluntary leaving cases, the claimant’s testimony should be taken
first. Regardless of the scheduling order, the claimant must have the opportunity
to know the evidence and arguments received at the hearing for the employer. He
must also have an opportunity to explain and to rebut the evidence and arguments
and to cross-examine the witnesses who testified at the hearing, either by
submitting questions for that purpose, or where necessary, by a further hearing.
c. Procedure for Second Hearings. Whenever possible, separate hearings should be
conducted by the same appeal tribunal. In the second hearing, the appeal tribunal
should make available the testimony, other evidence, and arguments presented in
the first hearing; it should afford the party who did not attend the first hearing the
opportunity to present evidence and arguments and to test the probative value of
the evidence presented at the first hearing. All exhibits admitted as evidence in
the first hearing should be available for use at the second hearing.
d. Rights of All Parties to be Protected. In the situation under discussion, one
interested party frequently will not be in attendance at the particular hearing.
Accordingly, the appeal tribunal must be alert to the need for protecting the rights
encompassed by “fair hearing” for all parties, including the party not present.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
This includes the right of a party to submit interrogatories for the purpose of
examination and cross-examination in appropriate situations, to have adverse
witnesses cross-examined by the appeal tribunal, and to know and to rebut
evidence and arguments submitted by other parties. Whenever it appears that
rebuttal testimony is needed, an additional hearing should be held for this
purpose.
e. Notices of All Hearings to Each Party. Each party should receive notice of each
hearing scheduled in the case, regardless of whether it is expected that he will
attend a certain hearing. The notice to a a party not expected to attend a hearing
should include the basic purpose of the hearing, and a statement that he need not
attend but may if he wishes to do so.
5. Physical Arrangements for the Hearing. Consistent with the concept of an appeal
tribunal’s impartiality, the hearing location should be in a neutral place, preferably in a
separate room. The hearing room or space should not be used by other personnel for the
transaction of business while the hearing is in process. The hearing may be held
informally at a desk, but a table at which the parties can be comfortably seated is
preferable. The desk or table should be cleared of all papers and files not connected with
the case being heard. The room should be free of lighted, and large enough to
accommodate the number of individuals usually in attendance.
C. Hearing Preparation by Appeal Tribunal
The appeal tribunal’s own preparation for hearing a case should include a pre-hearing review of
the entire case record. In making such a review, the appeal tribunal should note any apparent
discrepancies in the information previously obtained. It should determine what lines of inquiry
are needed to ascertain the salient facts as expeditiously as possible.
D. Impartiality of the Tribunal and Challenges to Interest
The essence of a fair hearing lies in the manifest impartially of the appeal tribunal. An appeal
tribunal should be free not only of any personal interest or bias in the appeal before it, but also of
any reasonable suspicion of personal interest or bias.
Any party to an appeal should be allowed to challenge the interest of the appeal tribunal assigned
to hear his case at any stage of the process until the decision becomes final. Unless the challenge
to interest clearly is a nuisance or dilatory action, another tribunal should be assigned to hear the
case. If the challenge is made after a hearing has been held, a new hearing should be scheduled
before another referee, who would then decide the case; or the appeal may be removed to the
board of review for decision on the basis of the record any additional evidence which the board
may consider necessary. If a party challenges the interest of a referee after he has issued his
decision, the challenge should be considered as an appeal to the board or review.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
The conduct of an appeal tribunal in the hearing room and in the presence of the parties should
be highly circumspect; demonstrating at all times its lack of personal interest or bias in the
proceedings before it.
E. Withdrawals, Postponements, Reopenings, and Subpoenas
1. Withdrawals. A request for withdrawal should not be granted automatically for several
reasons: withdrawal may be contrary to the best interest of the party requesting it’ or the
request may be based upon misunderstanding or misinformation; or granting the request
may give finality to a clearly erroneous benefit determination.
An interested party’s request to withdraw his appeal should be granted whenever the
appeal tribunal is satisfied that; (a) the party understands the effect which a withdrawal of
the appeal would have; (b) the request is not the result of any coercion, collusion, illegal
waiver of benefit rights or of other violations of law, and (c) the benefit determination is
not clearly erroneous.
2. Postponements, Adjournments, and Continuances. Fairness and promptness are the key
factors in deciding whether to allow requests for the postponement, adjournment or
continuance of a hearing.
Ordinarily, a party’s request should be granted if it is based, for example, on his need for
additional time to obtain necessary evidence, and should be denied if it is clear that it is
merely a delaying action. Often, however, requests for postponements and continuances
are the result of conflicting commitments of the parties, their representatives, or of their
witnesses because such requests pose difficult questions for an appeal tribunal, it is
important to try to avoid full information as to the nature of the hearing and the evidence
that will be sought. Careful scheduling or hearings and notice period are helpful in
reducing requests for postponement and rescheduling of the hearing.
3. Reopenings. In a case where the parties appeared at the scheduled hearing, the reopening
of the case for taking further evidence before a decision has been made is within the
appeal tribunal’s discretion. Thus, an appeal tribunal may reopen a case and schedule an
additional hearing on its own motion, in order to avoid making a decision based upon
inadequate facts.
Reopenings may, on the other hand, be necessary to insure a reasonable opportunity for a
fair hearing to a party who did not attend the scheduled hearing because he did not
receive notice of the hearing in accordance with the requirements of the State’s law and
regulations or for other good cause (see UIPL 853 on reopenings). Lack of notice would
invalidate the rest of the process—the hearing and decision—upon the protest of the party
who failed to get the necessary hearing notice. Necessarily, that party should have the
right to reopening upon a request made within a reasonable time after he had been made
aware that the hearing was scheduled or held.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
A party may have other good cause for not attending a scheduled hearing. What is “good
cause” is necessarily a judgmental matter. Some “causes” are clearly “good” beyond
dispute others are not; some causes can be determined “good” only on the basis of what a
reasonable man would do if he were in the party’s circumstances. If there is any real
doubt, the hearing should be reopened and the matter heard on its merits.
The parties must have a reasonable period of time in which to apply for reopening. What
is reasonable depends upon the circumstances in the particular case. Ordinarily, a period
of 7 to 10 days after the scheduled hearing appears to be a reasonable time within which
to entertain requests.
4. Subpoenas. A subpoena is a legal order requiring the person to whom it is addressed to
appear at a specific time and place to testify as a witness. A subpoena duces tecum
requires the designated person to produce at a hearing specific documentary evidence
such as books, papers, or records. Subpoenas represent a compulsory process for
obtaining evidence which might not be obtainable otherwise. Where a subpoenaed party
fails to appear at a hearing, it may be necessary to resort to the courts to compel
attendance. A party’s request for issuance of a subpoena should be granted freely, unless
it is clear that such a request is unreasonable, frivolous, made for the purpose of
harassment, or is not needed to secure attendance of a witness or production of
documents.
In order to expedite the appeals process and to avoid postponements or additional
hearings, parties should be encouraged to submit subpoena requests enough in advance of
the hearing so that the subpoenas may be timely issued and served. Because such
advance requests are not always feasible, however, parties must be free to request and
have subpoenas issued at any time before the close of the hearing.
Certain costs-such as the process server’s fee and the tender to the witness of his daily
attendance and mileage fee—are usually involved in the service of subpoenas. It is not
reasonable to expect claimants to pay or advance these costs or to assume the burden of
making such service themselves. If the claimant were to bear such costs or else be unable
to obtain service of a subpoena he has requested, his right to a subpoena would in effect
depend upon his ability to pay for its service. Such a result would infringe on his
opportunity for a fair hearing since it would hamper him in obtaining evidence.
Appropriately, the costs of claimant’s subpoenas are payable out of granted
administrative funds.
Subpoenas (personal and duces tecum) may be issued, not only as the request of a party,
but also on the appeal tribunal’s own motion. Such authority is necessary to enable the
tribunal to discharge its responsibility for eliciting all pertinent facts. Parties should be
given adequate advance information, not only as to the nature of the hearing and of the
evidence that will be sought, but also as to the tribunal’s authority to issue subpoenas
desirable in that is services to reduce the necessary evidence; this is desirable in that it
serves to reduce the necessity for actually exercising authority.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
F. Interstate Appeals
Interstate Appeals should be processed in accordance with the procedures set forth in Chapter
8000, Part V of the Employment Security Manual.
V. Hearings and Decisions
A. Conduct of Hearing
1. Public Hearings. The requirement that unemployment insurance benefit insurance
benefit appeal hearings be open to the public is an attribute of fair hearing reflecting
historic Anglo-American objections to a star-chamber type of proceeding. Public access
to the hearing provides assurance that the parties will be treated fairly by the appeal
tribunal.
Essential as it is to fair hearing that the hearing normally be open to the public, it is
equally necessary that the appeals tribunal have authority either on its own motion or at
the request of a party to close the hearing to the public for good cause. When testimony
to be presented is expected to deal with intimate or scandalous matters, for example, the
appeal tribunal may reasonably conclude that there is good cause to exclude the public
from the hearing.
2. Informal but Dignified Hearings. The hearing should be conducted in an informal
manner, but with dignity and decorum. Informality, in this sense, is not inconsistent with
orderliness, and means only an absence of unnecessary technicalities. It provides
flexibility that enables adjustment to various circumstances, such as a participant’s ability
to present information.
The appeal tribunal should maintain control of the hearing and make it move forward in
an orderly manner. Mannerisms suggesting impatience, or the lack of time for a full
exploration of the facts, should be avoided.
The appeal tribunal should listen with perception to information presented by the parties.
The tribunal is equally responsible for creating a relaxed and undisturbed atmosphere
which is conducive to the free flow of information, for aiding the parties in presenting
their cases, and for obtaining, through its own participation, all necessary facts.
3. Reception of Hearing Participants. When the hearing is called, the participants should be
admitted politely to the hearing location. The reception should be pleasant and reassuring
to the parties and witnesses. Effort should be made to acknowledge the presence of each
individual by word; motion, or visual contact. The appeal tribunal should look for
indications of timidity or lack of assurance by any of the participants. It unobtrusively
should provide assuring directions as to where they should wait, and the manner in which
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
they will be advised of the start of the hearing. Whenever possible, it should offer an
approximation of the length of time they will be required to wait for the hearing.
If a party is absent at the time set for hearing, the appeal tribunal should wait a reasonable
time (at least 15 minutes) before starting the hearing. A party arrives after the hearing
has begun but before it has concluded, should be given a summary of what has previously
occurred.
4. The Hearing Process. The appeal tribunal should identify itself by name and title, and
should address all participants by their formal names, never by first names or nicknames.
Even though the appeal tribunal may know the agency personnel, the claimant, the
employer or their representatives, it should avoid personal conversations or other conduct
at the hearing which might suggest camaraderie detrimental to objectivity or fairness.
The appeal tribunal should begin the hearing by summarizing the record and the issues,
and should explain the manner in which the hearing will be conducted. Such
explanations should be adapted to the needs of each hearing situation.
Especially when one or both parties are represented, questions may arise as to the
sequence of testimony. In view of the many and diverse factors to be considered, the
sequence of receiving testimony should be left to the appeal tribunal’s discretion.
Ordinarily, the appeal tribunal should hear first the existence of the issue in the appeal.
For example, in “discharge” cases, the employer’s testimony normally should be taken
first; in voluntary leaving cases, the claimant’s testimony should be taken first.
The appeal tribunal should avoid using technical legal terms, especially when a party is
not represented. When such terms are used, a simple, nontechnical explanation of their
meaning should be given the unrepresented parties.
Parties are entitled to cross-examine opposing parties and witnesses. Appeal tribunals
may also cross-examine to meet their responsibilities for establishing the facts in a case.
An appeal tribunal should avoid the attitude and tactics often associated with cross-
examination in adversary proceedings, and adopt, instead, techniques better described as
“examination for the purpose of clarifying evidence.”
Before the hearing is concluded, the appeal tribunal should ask each party whether the
wishes to present argument and it s hold explain that argument affords the parties an
opportunity to present their views as to a proper decision in the case, as well as the
reasons for their views.
B. Representation
1. Right to Representation. A party should have the right to be represented in an appeal.
Without representation, he would be limited to his own abilities and the assistance which
an appeal tribunal may afford him in the handling of the appeal and in the presentation of
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
his case. An appeal tribunal, however, may exclude from the hearing any representative
whose conduct is unethical or disruptive.
To protect claimants, fees payable to their representatives for services should either be
limited in amount or made subject to approval by the appeal tribunal.
2. (a) Representation by Legal Counsel. A party has the right to be represented by legal
counsel in an appeal.
(b) Representation by Lay Personnel. If permitted by State law, representation by
individuals who are not lawyers should be allowed. The informal character of the
proceedings makes this both feasible and desirable.
If under State law representation may not be by individuals who are not lawyers, care
should be taken not to exclude from the hearing individuals who, although they may not
qualify as representatives, may nevertheless have information which would make them
useful as witnesses.
3. Legal Aid Services for Claimants. While a referee is responsible for assisting all parties
as necessary to assure them fair and equal treatment, situations may arise in which an
indigent claimant may wish representation by counsel. In such instances, the appeal
tribunal should know enough about legal aid services available to such persons so as to
advise him how such services might be obtained.
4. Appeal Tribunal’s Responsibility to Parties – Represented and Unrepresented. An appeal
tribunal’s responsibilities remain the same, whether or not one or more of the interested is
represented at the hearing. Thus, the appeal tribunal should guide the development of the
case and control all questioning. Beyond this, the tribunal should participate directly in
the interrogation process, as necessary, to assure (1) that the hearing is fair to all parties
(2) that it is conducted expeditiously, and (3) that all facts necessary for a proper decision
are obtained.
When only one party is represented, the appeal tribunal has a greater responsibility to
interrogate the unrepresented party, not only from the standpoint of developing the facts,
but also to assist him in presenting fully his side of the case. It is equally important that
the tribunal assist the unrepresented party to cross-examine and to oversee and control the
questioning of an unrepresented party by the representative of the other party.
Notwithstanding an intensive direct examination of a party by his own representative, it is
good practice for an appeal tribunal to direct additional questions to such a party in order
to make certain that the necessary factual information has been obtained. A subsidiary
advantage of such questioning, in some cases, might be the added assurance to an
unrepresented party that no undue advantage had been taken of him as the result of his
lack of representation.
In some instances, both parties may be represented by counsel. When the counsel for
each party is well versed in unemployment insurance law, procedures and precedents,
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
there may be less need for the appeal tribunal to interrogate. At the same time, the appeal
tribunal should maintain control and guide the development of the case, rather than
merely permit opposing counsel to “fight it out.” To the extent that any representative
fails to elicit the necessary information, the appeal tribunal should interrogate to develop
this information.
C. Nonappearance of Parties
Appeals should not be dismissed automatically because one or both of the parties fail to appear at
the hearing. The appeal tribunal should award or deny benefits only if the ascertainable facts
justify it.
If one or both parties fail to appear, the appeal tribunal should proceed with the hearing and
obtain the testimony of those present. On the basis of the testimony and the record, the appeal
tribunal may decide the case. It should reopen the case, however, upon receiving a timely
request and a showing of “good cause” for nonappearance. However, if the appeal tribunal finds
that additional evidence is needed for the proper adjudication of the claim, it is the obligation of
the appeal tribunal to postpone the hearing in order to secure the testimony of the parties or
witnesses or the documentary evidence which is needed.
If neither party appears at the hearing, and the record consists solely of the administrative file,
the appeal notice, and the notice of hearing, the appeal tribunal should issue a notice of dismissal
of the appeal which contains a notice of right to reopen.
D. Record of Hearing
1. Developing the Hearing Record. The hearing record compiled by an appeal tribunal must
be clear and complete. Such a record becomes the basis for the Appeal tribunal’s
findings of fact and may become the record that is reviewed by the board of review or a
court. It is essential, therefore, that the appeal tribunal prepares the hearing record with
great care.
Evidence must be in the record to support each of the findings of fact. All documents
considered by the appeal tribunal in making its decision, including the administrative file,
should be expressly received for the record and clearly identified. Testimony should be
given under oath or affirmation and should be recorded verbatim. The record should
clearly show the identity of the person speaking and of those of whom he speaks. For
example, persons referred to as “he” “you,” etc., should be identified for the record.
Further, proper names should be spelled out for the record when they are first mentioned.
2. Transcript of Record. The record of the hearing need not be transcribed unless there is a
further appeal. When the record is transcribed, the parties to the appeal should be given
an opportunity to read and copy the transcript and the contents of the case file. They
should also be given the opportunity to correct the record and transcript in connection
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
with an appeal. If informational material is given to parties they should be advised of
these rights, and the right to purchase a copy of the transcript, authorized by the State law
or practice.
E. Decision
1. Need for a Written Decision. An appeal tribunal’s decision should be in writing. It
serves many purposes, the most important which is to help the parties to understand the
outcome of the case and the findings of fact and conclusions of law upon which the
decision was based. It is only through such an understanding that the parties have an
adequate basis for deciding whether to institute a further appeal. For the State agency,
the appeal tribunal’s decisions show how the law is applied to various sets of facts, and
so serve as a guide today-to-day administration. For the public, the appeal tribunal’s
decisions illustrate, in a specific way, just how the program works. Finally, if an appeal
is taken to the courts, the inclusion of clear and convincing reasoning in an appeal
tribunal’s decision will explain and support is findings of fact and conclusions of law.
To accomplish these purposes, the decision should be written in clear, nontechnical
language that will be understood by laymen. The decision should include all essential
points and should omit nonessential detail.
2. Prompt Preparation of Decision. It is essential that an appeal tribunal’s decision be
prepared promptly, since benefits in dispute may have been withheld pending the
outcome of the appeal. It is administratively desirable, if only for guidance, to fix a
specific number of days after the conclusion of the hearing within which the decision
should be written and issued.
3. Content of Decision. It is not essential that a particular format be followed in the
preparation of a decision. However, the decision should contain the following
information;
a. the names and identification of the parties;
b. appearances;
c. recital of jurisdiction of appeal tribunal;
d. decision number;
e. date of appeal;
f. place and date of hearing;
g. date of mailing decision,
h. authority making decision;
i. a brief recital of the decision under review;
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
j. a clear statement of the issue(s) involved, i.e., of the subject matter in
controversy;
k. the appeal tribunal’s findings of fact and conclusion of law;
l. a statement of rationale, explaining why the facts found lead to the conclusions of
law which were reached;
m. the administrative action taken, e.g., the extent to which benefits are allowed or
disallowed, directions to the administrative agency for further proceedings, or
other orders for disposition of the appeal;
n. a statement (notice) of right to further appeal and the time limit for filing appeal;
also, information as to the places and methods of filing appeal should be
contained either in the notice of appeal rights or in separate informational material
referred to in the notice. If the State law permits extension of the appeal period
for good cause, such information also should be given.
4. Findings of Fact, conclusions of Law, and Reasoning. Well developed decision of an
appeal tribunal contain findings of fact, conclusions of law, and reasoning. Each of these
elements is considered below:
a. Findings of Fact. The appeal tribunal’s written decision should contain all
relevant findings of fact supported by the record, and only such findings. Thus,
before starting to write or to dictate its decision, an appeal tribunal first should
make a careful review of the evidence. It is the appeal tribunal’s responsibility to
consider the reliability of the evidence offered, and the inherent probability or
improbability of its truth. Accordingly, it is necessary that the tribunal evaluate
the credibility of witnesses, including as necessary that the tribunal evaluate the
credibility of witnesses, including as necessary, their character, reputation, and
demeanor, as well as the actual testimony received from them.
The facts which the evidence establishes should be recited, not the testimony.
The findings need not be elaborate in form or content, but should be complete,
concise, and stated in specific terms so as to support the conclusions of law.
b. Conclusions of Law. A conclusion of law represents the appeal tribunal’s
application of law to the findings of fact in a particular case. There should be
conclusions of law each of the elements of proof required to support the decision
on each of the issues.
c. Reasoning. An appeal tribunal should include in its decision a statement of its
reasoning, even though the reason may appear self-evident. The reasoning
explains the decision. It serves to bridge the gap between the findings of fact and
the conclusion of law. Example: The claimant left work without notice to the
employer because he heard a rumor of an imminent layoff. He was held to have
left work voluntarily without good cause. Rationale. When he left without
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
notice, he foreclosed any opportunity for the employer to affirm or deny the
rumor, and in fact, the rumor was without any foundation.
5. Mailing of Decision. A written copy of the appeal tribunal’s decision should be mailed to
each interested party. (See D.2., page 26 and 3.n., page 27.)
VI. Evidence
Simple and informal proceedings are appropriate to unemployment insurance hearings for many
reasons, including the need for promptness in the final disposition of benefit rights and the fact
that claimants generally are not represented because the small sums of money involved usually
do not warrant the expense of paid representation. Accordingly, the statutes and rules of
procedure governing such hearings generally provide that appeal tribunals are not bound by
common law or statutory rules or evidence, or by common law or statutory rules of evidence, or
by technical or formal rules of procedure.
Moreover, trial techniques and technicalities of legal proof characteristic of court proceedings
are out of place in unemployment insurance hearings, and the exclusionary rules applicable to
admissibility of evidence in court proceedings should not be adopted or used. Any evidence
pertaining to the issues in a case should be received as a matter of course. Although evidence
which is not relevant or which is repetitious or technical rules of exclusion to preclude admission
of such evidence. If a hearing is properly controlled and guided by the appeal tribunal, few
problems of irrelevant or repetitious evidence should arise.
By dispensing with exclusionary rules of evidence in unemployment insurance hearings, appeal
tribunals avoid the somewhat artificial question of what evidence should be admitted or
excluded. The much more important and practical question is the weight that should be given to
particular evidence. The liberal practice in admitting evidence, however, imposes upon the
appeal tribunal a greater responsibility in weighing the evidence received.
Every finding of fact should be supported by evidence which is sufficient in both qualify and
quantity. The quality of evidence desired is best characterized in a decision of Judge Learned
Hand as “the kind of evidence on which responsible persons are accustomed to rely in serious
affairs.” In other words, the quality is the same as that upon which thinking people make
important decisions affecting their personal lives and business affairs. “Quality” thus has
reference simply to the trustworthiness of evidence. It is implicit that side of the issue on which
the evidence is the most credible.
The quantity of evidence desired to support a decision on an issue should be sufficient credible
evidence that a court, upon reviewing the decision, would conclude that is supported by
substantial evidence. The quantity of evidence required under the substantial evidence test has
been defined as such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. In order to be substantial, evidence must be strong enough to raise a presumption
of fact and must be sufficient, when undenied, to establish the fact.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
These tests of quality and quantity of evidence are not susceptible of precise definition. No clear
line of demarcation is drawn between evidence which is sufficient and that which is not.
However, a scintilla of evidence is not sufficient to meet either test, nor is mere uncorroborated
hearsay or rumor.
It is of the utmost importance that appeal tribunals have a thorough knowledge of the criteria
pertinent in weighing evidence. In addition to a working knowledge of the substantial evidence
test, appeal tribunals should have full understanding of the exclusionary rules of evidence, even
though those rules are not applicable in unemployment insurance hearings. Such an
understanding is invaluable in weighing evidence and determining its relative trustworthiness.
Appeal tribunals also should know other aspects of evidence and the decision making process,
including reception of evidence, making up a record, degrees of proof required to sustain
findings and decisions, substitutes for evidential proof, meaning of terms, and other matters.
While a complete treatment of the subject of evidence cannot be included in this Guide, some
points of particular significance to unemployment insurance hearings are briefly set forth below.
A. Testimony Under Oath or Affirmation. All testimony should be under oath or
affirmation. Witness should be sworn individually, and interpreters should also be
sworn.
B. All Evidence to Be Made a Part of the Hearing Record. The decision of the appeal
tribunal in a case should be based solely upon matters in the hearing record.
Accordingly, all evidence to be taken into account by the appeal tribunal in making its
findings, conclusions, and decision, should be made a part of the hearing record except in
unusual circumstances, the evidence should be presented and received at the hearing
which is conducted for that purpose. The essential purpose is to assure that all parties are
fully apprised of the evidence received or to be considered, and that they be given the
opportunity to cross-examine witnesses, inspect documents, and offer evidence in
explanation or rebuttal. The hearing is for the purpose of affording parties the
opportunity to exercise and protect their rights in these respects.
C. Exhibits. Documentary evidence and real evidence (physical objects) received in a
hearing should be marked for identification and made a part of the record. Such evidence
should be properly authenticated or verified under oath or affirmation.
D. Best Evidence. Whenever possible, the best evidence should be obtained because it is the
most reliable. The best evidence is original or primary evidence, as distinguished from
secondary, and includes the best evidence which is procurable in the circumstances. For
example, the best evidence of what an individual did is that of an eye witness; the best
evidence of its existence and contents; a copy, or the recollection of a witness, is
secondary evidence.
E. Affidavits and Unsworn Statements. It has been the practice in unemployment insurance
hearings for appeal tribunals to accept affidavits and even unsworn statements in lieu of
the oral testimony of a party or witness. Whenever the party or witness is available,
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
however, he should be required to appear and give his testimony orally and under oath or
affirmation. The more material such evidence is to the issues in the hearing, the more
important it is to obtain oral, sworn testimony. In addition, where the facts are material
and the issue is in dispute, procedural fairness may require that the party or witness be
called before the tribunal for the purpose of cross examination.
F. Hearsay. Literally, this term refers to what a witness says he heard another person say. It
also refers to a report or rumor as to what a person said or did. Under the exclusionary
rules of evidence, hearsay generally is inadmissible over the rules of evidence; hearsay
generally is inadmissible over the objection of an opposing party. But, if no objection is
made, hearsay evidence is admitted for whatever it may be worth. In addition, even
under the exclusionary rules of evidence, there are a number of recognized exceptions to
the general rule against the admissibility of hearsay evidence. One of these exceptions,
pertaining to business records, is discussed below. In unemployment insurance hearings,
hearsay should be admitted if it is relevant.
The principal objections to hearsay evidence are directed to the infringement of
confrontation and cross-examination and the inherent untrustworthiness of the evidence.
The weakness of hearsay is that it does not derive its value solely from the credibility of
the witness or report, but rests mainly on the veracity and competence of the person being
quoted or the author of the report. Thus, hearsay is second-had evidence, as
distinguished from original evidence. Yet, it is acknowledged that the trustworthiness of
hearsay evidence ranges from that which is wholly unreliable to that which is the kind of
evidence on which responsible persons are accustomed to rely in the conduct of serious
affairs.
It is erroneous, therefore, to condemn all hearsay as inherently untrustworthy, and it is
just as erroneous to give any weight to all hearsay or, in some instances, to give any
weight to such evidence. The point is that hearsay evidence, like any other evidence,
should be weighed for its intrinsic merit in accordance with the standards for judging
trustworthiness of evidence and credibility of witnesses of evidence and credibility of
witnesses. Another point to be kept in mind is that reception of hearsay evidence may
necessitate bringing in the person who is reputed to have said or done something, or the
author of the report, for original testimony (i.e., the best evidence) and cross-
examination. Therefore, it is ordinarily better to obtain the best evidence in the first
instance, whenever it is possible.
G. Business Records. One of the recognized exceptions to the hearsay rule is with respect to
evidence contained in entries made in the records of a business in the usual course of the
operation of that business. The exception embraces only those entries which are made
systematically in the regular routine and usual course of the business, and does not
embrace entries made as isolated transactions or incidents or for a specific purpose which
is the subject of the litigation or hearing.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
H. Stipulation of Fact. A stipulation of fact entered into by the parties may be received in
evidence at the discretion of the appeal tribunal. In appropriate cases, stipulations save
time at the hearing because they dispense with necessity for proof. In view of the appeal
tribunal’s responsibility regarding the obtaining of evidence, however, the appeal tribunal
should be satisfied that the parties understand the nature of any stipulation and its effect
upon their rights, and that the stipulation is factually correct. Acceptance of the parties’
stipulation does not preclude the appeal tribunal from obtaining additional evidence on
the points covered by the stipulation or on related matters.
I. Presumption of Fact. A presumption of fact is in inference drawn from facts admitted in
the case or otherwise satisfactorily established by the evidence. A presumption of course
may be rebutted by credible evidence to the contrary for example, it would be proper to
presume that a letter mailed in the due course of business, properly addressed, and
bearing the correct amount of postage, reached its destination, but such a presumption
would be rebutted by credible evidence that the letter did not reach its destination.
J. Official Notice. An appeal tribunal may on its own motion or at the request of a party,
take official notice of a fact material to an issue in a hearing. Generally, only clearly
indisputable facts should be the subject of official notice. Thus, official notice may be
taken of (a) such facts as are so generally known or of such common notoriety within the
State that they cannot reasonably be the subject of dispute, (b) specific facts of immediate
and accurate determination by which are capable or immediate and accurate
determination by resort to easily accessible technical or scientific facts within the appeal
tribunal’s knowledge. Parties should be within the appeal tribunal’s knowledge. Parties
should be notified, either before or during the hearing, of any facts notified, either before
or during the hearing, of any facts of which official notice is taken, and be afforded an
opportunity to contest the correctness of the facts so noticed.
K. Expert and Opinion Evidence. Expert evidence is testimony given in relation to some
scientific, technical, or professional manner by a person who is qualified to speak
authoritatively by reason of his special training, skill, or familiarity with the subject.
Expert testimony may be in the nature of facts, or the opinion of the witness based on the
nature of facts, or the opinion of the witness based on facts already proved. For example,
an employment service representative with the requisite qualifications may give expert
testimony as to current labor force conditions in a community with respect to certain
occupations, or prevailing wages in a certain occupation and locality or other matters
within his specialized knowledge or authoritative experience. Findings and conclusions
or appeal tribunals should be based upon expert testimony only to the extent that it is
given by a person with the requisite qualifications.
Expert and opinion testimony should in every case be substantiated by the witness with
reasons and explanation. Witnesses who give expert or opinion testimony are subject to
cross examination upon their qualifications and their expert or opinion testimony.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
There are some matters, however, on which the opinions of lay persons might be credible
evidence. For example, many mature persons who are not “experts” may give reasoned
and substantiated opinion testimony as to why they believe another person appeared at a
certain time to be intoxicated, in pain, angry, fearful, joyful, or the like.
L. Privileged Communications. The appeal tribunal should respect privileged
communications which are accorded such status by State law. Generally,
communications between clergy and penitent, attorney and client, and doctor and patient
are privileged, and in some States communications between dentist and patient, and
registered nurse and patient, are also privileged. Unless the privilege is waived by the
penitent, client, or patient, as the case may be, neither he nor the person rendering the
professional service to him may be required to disclose the subject matter of the
communication or the advice given. Confidential communications between husband and
wife are similarly privileged, but here, too, the privilege may be waived. The appeal
tribunal should advise the parties of the rule of privilege recognized in the State, and the
circumstances in which it is waived, whenever the matter arises in the course of a
hearing.
M. Self-incrimination. The privilege against self-incrimination is constitutionally protected,
but like privileged communications, this privilege also may be waived. Many State laws
have a special provision relating to self-incrimination and, in addition, provisions
respecting immunity from prosecution. Whenever a matter involving self-incrimination
or immunity arises in the course of a hearing, the parties should be advised by the appeal
tribunal as to the particulars of the privilege, waiver, and immunity applicable in that
State.
N. Meaning of Selected Terms.
1. Competent Evidence. Generally, this term refers simply to evidence which is
admissible and relevant. In some connections, however, it has been deemed to
convey the same meaning as best, or primary, evidence. In common usage it
sometimes means the testimony of a person who is not disabled from giving
testimony by reason of age, insanity, or other legal infirmity.
2. Credible Evidence. Evidence which is worthy of belief. A witness’ credibility refers
to that quality of the person which renders his evidence worthy of belief on account
of his good reputation for veracity, his intelligence, his knowledge of the
circumstances, and his disinterested relation to the matter in question. Moreover, in
deciding upon the credibility of evidence presented by a witness, it is always pertinent
to consider whether he is capable of knowing thoroughly thee thing about which he
testifies; whether he was actually present at the transaction whether he paid sufficient
attention to qualify himself to be a reporter of it; and whether he honestly relates the
affair fully as he knows it, without any purpose or desire to deceive, or to suppress or
add to the truth.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
3. Direct Evidence. Evidence of the existence of a fact in question, without the
intervention of evidence of any other fact. It is distinguished from circumstantial
evidence, which is often called indirect. Direct evidence is, by way of example,
testimony to facts by witnesses who saw acts done or heard words spoken.
4. Probative Evidence. Evidence having the effect of proof, tending to prove, or
actually proving. It is evidence carrying quality of proof and having fitness to induce
conviction of truth. Probative evidence might therefore be defined more
appropriately for unemployment insurance purposes as “the kind of evidence on
which responsible persons are accustomed to rely in serious affairs.
5. Relevant Evidence. The term “relevant evidence” may be broadly defined as that
which bears directly, as distinguished from collaterally, upon the point or facts in
issue, and which tends to prove or disprove the matters in issue. It is not confined to
evidence which is addressed with positive directness to the point, but is that which,
according to the common course of events, either taken by itself or in connection with
other facts, tends to prove or render probable the existence or non-existence of facts
which are in issue.
6. Weight of Evidence. The weight of the evidence on an issue is on that side of the
issue on which the evidence is the most credible. Thus, weight of evidence means
greater weight, and is not materially different in meaning from preponderance of
evidence.
7. Preponderance of Evidence. Evidence may be considered as the preponderant when,
fairly considered and weighed; it produces the stronger impression, has the greater
weight, and is more convincing as to its truth when weighed against the evidence in
opposition.
8. Proof. The term “proof” properly means anything which serves to convince the mind
of the truth or falsehood of a fact or proposition. Proof, therefore, is the effect of
evidence, or the establishment of a fact or proposition by evidence; evidence is the
medium or means by which a fact or proposition is proved or disproved.
9. Admission. An admission against interest is any statement made by a party, or
attributable to him, which tends to establish or disprove any material fact in the case
against him. An admission pertains to relevant facts, as distinguished from matters of
law or opinion.
VII. Burden of Proof
The term “burden of proof” denotes the burden of establishing the truth of a given proposition by
the necessary quantum of evidence. The concept of burden of proof cannotes not only a risk of
nonpersusion but also a duty of persuasion, that is, an active duty or function of adducing a
quantum of evidence sufficient to meet the risk. While rules as to burden of proof may be useful
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
in judicial and quasi-judicial proceedings in which there are adverse parties, there is serious
doubt that the introduction of such rules in unemployment insurance cases is conducive to justice
or the attainment of the purpose of the unemployment insurance program.
Rules as to the burden of proof, while partaking of substance, are yet so closely related to
presumptions and other procedural considerations that their introduction in unemployment
insurance hearings tends to impair the nontechnical character of such proceedings and divert
attention from the merits of a claim to be serious danger that the State agency regarding itself as
an adverse party, would assume a hostile or at least indifferent attitude and, instead of
cooperating to the end of discovering all the facts, would leave to the end of discovering all the
facts, would leave to the claimant a task, which, generally, he is probably ill-prepared to perform.
In construing the unemployment insurance law and determining claims thereunder, the State
agency should keep in constant view the broad items of the program. It is the primary duty of
the agency to pay all just claims under the law and not merely those which claimants compel it to
pay. It has no legitimate interest in denying a claim unless the claim does not fall within the
terms of the law. When the case is pending before an appeal tribunal, it would seem to be the
duty of the agency not to take specific issue on the theory that claimant has the burden of proof
on that issue, but rather to cooperate in presenting all the evidence available to it, whether
favorable or unfavorable to claimant.
The inappropriateness of technical rules as the burden of proof in unemployment compensation
cases is further illustrated by the functions of appeal tribunals. While they are quasijudicial
tribunals in the sense that they hear and determine controversies with respect to claimants’ rights
under the law, their position and functions are not altogether like those of a court. In our system
of jurisprudence, a judge much more closely resembles an umpire than an investigator, and,
whatever may be his full powers, a judge does not ordinarily make independent factual
investigations. The situation is entirely different before an appeal tribunal. Appearance without
counsel and, at least in the absence of union membership, without competent representation of
any kind, is the rule rather than the exception. The small sums of money involved in claims,
moreover, unusually will not warrant the expense of paid representation. If, therefore, claimants
were required on appeal to depend upon their own resources it is doubtful that such a procedure
would be conducive the disclosure of truth and the attainment of justice. On the other hand,
claimants should not be permitted to prevail because of the State agency’s failure to adduce
disqualifying facts which the appeal tribunal, through its own resources, is able to elicit.
The hearing is not a contest between two opposite parties, with the appeal tribunal sitting on the
sidelines. The appeal tribunal is, in effect a board of inquiry, responsible for getting complete
and accurate facts. It is that responsibility of appeal tribunals which appropriately substitutes for
a burden of proof on the parties in unemployment insurance hearings.
In the light of these considerations technical rules as to burden of proof are unrelated to the
realities and the necessities of the situation and somewhat foreign to the nature of the
proceedings.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
As already indicated, while it is inappropriate in unemployment insurance hearings to apply
technical rules as to burden of proof in the sense of an active duty to adduce the quantum of
evidence necessary to success on a given issue, there is nevertheless a risk of nonpersuasion with
respect to each issue. The term “risk of nonpersuasion” is used, not as connoting any active
burden or duty, but solely as denoting the risk, incurred by one party or another with respect to a
given issue, that he will not prevail on that issue unless the tribunal, from the evidence before it
(by whomsoever adduced), is satisfied, i.e., persuaded, the party who has the risk should not
prevail. Who bears the risk should depend partly upon the nature of the issue, the terms of the
statute, and what allocation of the risk is more appropriate to the attainment of a just
adjudication.
A distinction should be drawn between eligibility conditions and disqualifications. Eligibility
conditions include both monetary and nonmonetary requirements which must be met by
claimants in order to obtain benefits, and are designed to establish attachment to the labor force.
Monetary requirements—such as the amount of employment wages earned—test past
attachment; nonmonetary requirements—the ability to work, availability for work, registration,
serving of a waiting week, and the like—measure current attachment. Disqualifications,
however, are related to the cause of the claimant’s unemployment—either by his own act, such
as voluntarily leaving without good cause, discharge for misconduct, refusal of suitable work, or
because of other circumstances, as in the case of labor disputes, fraud, or receipt of other income.
A further distinction relates to the period of time during which benefits may be denied. A
monetary determination may result in a claimant’s complete exclusion from benefits; a
nonmonetary eligibility determination may result in denial of benefits for as long as the condition
causing the ineligibility persists; a disqualification may result in denial of benefits for a specified
number or weeks or until the disqualification is “purged,” regardless of whether the claimant is
otherwise eligible.
Generally speaking, an appeal tribunal cannot properly award benefits to a claimant if it is not a
stratified that the claimant has met the eligibility condition. In this limited sense the claimant
bears the risk of nonpersuasion with respect to each such issue. That risk may be great or small,
depending upon the nature of the issue and upon other circumstances. Ordinarily, there should
be little difficulty in determining, so far as questions of fact are concerned, whether claimant is
unemployed, whether he has made a claim for benefits, whether he has served a sufficient
waiting period, and whether he has earned sufficient qualifying wages. Generally, the fact that
the claimant has registered for work and has continued to seek work should be sufficient to
satisfy the appeal tribunal of his ability to work and availability for work in the absence of facts
which cast doubt upon his ability, readiness, and willingness to work.
With respect to disqualification provisions, the risk of nonpersuasion should generally be borne,
not by the claimant, but by the State agency or the employer as the case may be. That is to say,
unless, upon the evidence, the appeal tribunal is affirmatively satisfied or the existence of facts
calling for the imposition of a disqualification, claimant will be entitled to benefits if he has
complied with the conditions precedent to eligibility.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
In every case, the parties should cooperate fully and reveal pertinent facts that are peculiarly
within their own knowledge. In the case of the State agency, such cooperation should be deemed
a public duty. The fact that the risk of nonpersuasion on an issued may be on one of the parties
does not relieve other parties of their duty to cooperate.
The above considerations form the rationale against the “burden of proof concept” in
unemployment insurance hearings. If appeal tribunals include such considerations whenever the
subject of burden of proof arises in a case, it should become apparent to the courts and to other
interested parties that this concept is inappropriate to administrative hearings. Rules governing
practice and procedure before appeal tribunals should emphasize the differences between such
hearings and court trials, and the necessarily different procedural requirements respective of
each.
VIII. Mass Appeals
Appeals may be consolidated for a single hearing when the same, or substantially the same,
evidence is relevant to the issue involved in each of the several appeals, assuming that no party’s
rights are prejudiced by this procedure. Such consolidation should be permissive, rather than
mandatory upon the parties. Labor dispute cases, for example, often are processed as mass
appeals. By consolidating such appeals, the same time and place may be set for hearing, a single
record may be made, and the evidence introduced with respect to one appeal may be considered
as having been introduced with respect to each of the individual appeals.
As an alternative to the consolidation of appeals, another procedure gaining prominence is the
token hearings procedure. In this procedure, one of the cases is selected as a test case for each of
the one or more identifiable classes of cases involved in the mass appeals. This procedure has
the advantage of involving fewer active participants in the appeal proceedings than might be
involved in a consolidation of all the cases.
Some of the specific procedures involved in the consolidation of appeals and the alternative
token hearings procedures are discussed below.
1. Special Files and Procedures. A pre-hearing conference may be used to obtain the
agreement of the parties to the individual appeals as to such details as: (a) determination
of the various classifications of cases; (b) the selection of interested parties in the various
case classifications; (c) the number of hearings which may be necessary; and (d)
stipulations of uncontroverted facts.
2. Pre-hearing Conferences. A pre-hearing conference may be used to obtain the agreement
of the parties to the individual appeals as to such details as (a) determination of the
various classifications of cases; (b) the selection of representatives who will receive
notice of hearing for the interested parties in the various case classifications; (c) the
number of hearings which may be necessary; and (d) stipulations of uncontroverted facts.
A Guide to Unemployment Insurance Benefit Appeals
Principles and Procedures
3. Consolidated Hearings. In a hearing on consolidated appeals all of the cases are heard,
although with the agreement of the parties evidence introduced in one case may be
considered equally applicable to other cases.
4. Token Hearings. This procedure is initiated by the parties and the appeal tribunal
agreeing in advance that the hearing and decision in the test case selected by the parties
and the appeal tribunal shall apply to and be binding upon all of the parties. All of the
parties to be bound by the final decision in the test case are represented in the test case
hearing and any appeal from the decision following such hearing. The parties’
representative usually would be one or more attorneys, or might be a union officer or
employee.
5. Individual Rights of Fair Hearing. Great care should be exercised to preserve fair hearing
rights or individuals involved in consolidated appeals and token hearings. To insure that
the representatives may act for the parties, and that the parties consent to the procedure
and to the acts and agreements of their representatives, each of the parties should
affirmatively authorize the representatives to act for him in the case. Further, all parties
should be permitted to attend the hearings and should receive individual copies of all
decisions in the case.
What does federal law require in your situation?
Ezel checks current federal labor law against your facts and answers with citations.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace