Filing for unemployment benefits can be an intimidating and new process to many who have never had to go through the process before. Add in the ever-changing benefit eligibility requirements because of the COVID-19 pandemic, and the task can be daunting. Filing for benefits does not guarantee you will receive the benefits being filed for. In fact, you can even receive benefits and later be determined to have not been eligible. If this decision is made after you received benefits, you will be expected to pay back these benefits. These benefits can amount to thousands of dollars.
Appealing an administrative decision denying your unemployment benefits is something that most people have no experience doing. While the formal Rules of Evidence and Procedure are relaxed, there are still countless pitfalls that people can stumble into. Having representation can help increase your chances of prevailing at an appeal.
If you do receive an “Administrative Decision” in the mail from the Oregon Employment Department (OED) that is a denial of benefits, there is some information that you should know.
- Do not delay in reviewing the decision. If you are denied benefits, there is only a limited amount of time to file for an appeal with Office of Administrative Hearings (OAH). Administrative Decisions become final 20 days after they are mailed, not when you receive it.
- Consult an attorney if you are unsure if your benefits were granted or not.
- If you do decided to appeal the administrative decision denying you benefits, you can submit a hearing request by following this link:
(https://oedcontactus.oregon.gov/hc/en-us/requests/new). Complete the personal information requested on the form and select that you are “A Worker” from the drop-down menu. Under “Have you filed a claim?” select “Yes, I have filed a claim.” Finally, under “What can we help you with” select “Request a hearing.” IT IS IMPERATIVE THAT YOU DO THIS WITHIN 20 DAYS OF THE MAILING DATE OF THE DECISION YOU ARE APPEALING.
- Once you have submitted your hearing request, if you have not already, it is advisable to contact a labor/employment attorney. Labor and employment attorneys handle these cases regularly and understand the process and what strategies are successful and which are not.
- Once a hearing is set, you will receive a letter in the mail. This letter will be called a “Notice of Hearing.” It will not be from OED, but rather OAH. This notice will tell you what date and time your hearing is. It will also have the call-in information for the hearing.
- If you are going to submit exhibits for the hearing, they must be sent in and received by the Office of Administrative Hearings and the opposing party before the hearing begins.
- At the hearing you will be allowed to present testimony and exhibits to prove why you should be entitled benefits. The Administrative Law Judge (ALJ) will ask you questions, and the opposing party will also be allowed to ask you questions. If you have an attorney representing you, they will be allowed to ask you questions. After you are done testifying and presenting your case, the opposing party will be allowed to testify and present exhibits attempting to prove why you are not entitled to benefits. The same process of questioning will take place.
- After the hearing, the ALJ will consider the testimony heard and the exhibits admitted into the record. Once they have decided, they will mail an Order to the parties. This Order will explain if you are entitled to unemployment benefits or not and the reason for the decision.
If you are unsuccessful the chances of winning on appeal are very small. The first appeal is to the Oregon Employment Appeals Board (EAB). They will review the record from the hearing before the ALJ and decide if an error was made. Follow this link to see some FAQs from EAB: (https://www.oregon.gov/employ/Documents/EAB%20FAQs.pdf). If you received an Order from the ALJ finding against you, follow this link to submit a request to EAB for review: (https://secure.emp.state.or.us/eab/forms/index.cfm?action=afr). IT IS IMPERATIVE THAT YOU DO THIS WITHIN 20 OF THE MAILING DATE OF THE FINAL ORDER YOU ARE APPEALING.
Once you submit your request to the EAB, you will receive a “Notice of Receipt of Application for Review” from the EAB. This notice confirms that you filed for a timely review by EAB. You are allowed to submit written argument to EAB, but are not required to do so. If you choose to submit written argument you can do so by following this link: (https://secure.emp.state.or.us/eab/forms/index.cfm?action=waf). IF YOU WISH TO SUBMIT WRITTEN ARGUMENT, IT IS IMPERATIVE THAT YOU DO THIS WITHIN 20 DAYS OF THE MAILING DATE OF THE NOTICE OF RECEIPT OF APPLICATION FOR REVIEW.
If the EAB upholds the decision from the ALJ, the next appeal is the Oregon Court of Appeals. This is a long, expensive, and challenging road from this point. Generally, most cases are not worth pursuing this far, however there are exceptions.
If you have any questions about the information or steps above, contact a labor/employment attorney. This will be able to assess your case and help you determine if further appeals are worth it. The best chance of winning an appeal is at the hearing before the ALJ. If you want a visual general overview of the process, follow this link: (https://www.oregon.gov/employ/Documents/Appeals%20Process%20Flow%20Chart.pdf).
If you take one thing away from this, it would be to contact an attorney early in the process and give them ample time to prepare for a hearing with OAH. Doing this will increase your chances of winning an unemployment appeal and the benefits you derserve.