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Tips to Prepare for an Unemployment Insurance Lower Appeal Hearing

When a claimant files for unemployment benefits, a claims examiner will contact both the employer and the claimant by telephone to get both sides of the story as to the reason for the separation from unemployment. Typically, the issue is whether the claimant engaged in misconduct, gross misconduct, or voluntarily left his/her employment. After listening to both sides of the story, the claims examiner will issue a written determination as to whether benefits are allowed. It is from that written determination that the claimant or the employer (depending upon the determination) has the right to file what is referred to as a “lower appeal.” The notice of the initial determination provides an explanation as to appeal rights.

A notice of appeal must be in writing, and it must be filed within fifteen (15) calendar days from the date the initial determination is made. Importantly, the notice of appeal must be signed, and it must be mailed or sent by facsimile to the address or facsimile number provided in the initial determination letter. If a claimant or employer decides to send the notice of appeal by facsimile, it is critically important to save the facsimile confirmation as evidence of filing.

The appeal hearing before the hearing examiner is a de novo appeal, meaning that the initial determination of the claims examiner is irrelevant. Each side has an opportunity to present its case and cross-examine witnesses. Lower appeal hearings typically take place in a small conference room with a hearing examiner seated at the end of a conference table and the claimant and employer on opposite sides of the table. Testimony is under oath. If the issue is a termination of employment, the employer testifies first, whereas if the issue is a resignation, the claimant testifies first. The formal rules of evidence do not apply, so as long as any document is relevant to the case, the hearing examiner will accept it into evidence. It is important to remember to bring three (3) copies of any document intended to be admitted into evidence at the hearing. Because it is included in the fine print on the reverse side of the notice of the appeal hearing, many claimants and employers are unaware of the right to request the issuance of a subpoena for the other side to bring documents to the hearing, or to require a witness to attend the hearing. Any request for the issuance of a subpoena must be received by the Appeals Division at least five (5) business days prior to the hearing date.

There are very few reported appellate opinions for claimants and employers to rely upon at an unemployment appeal hearing. The best resource is the Maryland Unemployment Decisions Digest, which can be accessed on line. The Maryland Unemployment Decisions Digest includes a helpful table of contents by issue, and within each issue, a summary of relevant opinions in other unemployment appeals. It is advisable to always refer to this resource in preparation for any appeal hearing. If one of the opinions appears to be on point, a complete copy of the opinion can be obtained from the Appeals Division.

Decisions in lower appeal cases are written. The full written decision is mailed to all interested parties, and there is a right to further appeal, as fully explained in the decision.

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