Frequently Asked Questions
HOW DO I FILE AN APPEAL?
An appeal is a written disagreement to an Unemployment Insurance (UI) Division benefit determination issued by a claims examiner or tax notice issued by an auditor.
These are the actions to take to get the appeal filed:
- What: Prepare and file a signed written statement.It is not necessary to write a detailed appeal or to have all of your evidence available in order to file the appeal. A short explanation is sufficient for the purposes of filing the appeal.Be sure to include your name, current address and telephone number, and if applicable, social security number in your appeal statement.
- Where: File your appeal statement with the UI claims office or the Employment Security Appeals Referees Office (ESARO)*.
- *Important: You must include a copy of the determination or notice when you file the appeal with the ESARO.
- How:In person or by mailThe addresses can be found on the determination, usually in the appeal rights information section.
- When:Within the statutory time period stated on the determination or notice.You must file your appeal before the appeal period expires. If your appeal is not filed on time, you risk having your appeal dismissed and losing an opportunity to have a hearing on the merits of the case. If the postmarked date on the envelope does not match the mailing date shown on the determination/notice, you should retain the envelope for proof of the beginning date of the appeal period.
WHAT HAPPENS AFTER THE APPEAL IS FILED?
The UI local office will send documents that are relevant to the appeal to the ESARO to make up the appeal case file. ESARO sets a hearing date and will send notice of the date, time, place of hearing, and the issue(s) to be heard to all the parties. Fifteen (15) days notice is given which results in a hearing likely to be scheduled between 19 to 24 days after ESARO receives your appeal.
HOW SHOULD I PREPARE FOR THE HEARING?
The appeal will be decided on the information the UI Division provided for the case file and all relevant testimony and evidence provided to the appeals officer at the hearing. It is each parties’ responsibility to present the evidence and testimony necessary to prove their case. The hearing before the appeals officer is the only chance you will have to tell your story. Unless you have good cause for not presenting evidence at the hearing, the appeals officer will not allow another hearing. Therefore, it is important that you prepare for the hearing.
- Carefully read the Notice of Hearing, the colored information sheet(s) on the hearing procedures, and all other attachments, if any.
- Review the determination to understand how the claims examiner or auditor arrived at his/her ruling.
- Consider whether the facts are correct and complete. Make chronological notes about the factual events concerning the matter (issue) on appeal.
- Know and understand the law and regulation that was applied. The determination or notice will identify the applied law, which looks something like “Section 383-xx(x)” and “Regulation 12-5-xx(x)”.
- Gather and make copies of papers that relate to the issue, i.e., pay statements, employment agreement, doctor’s certificate, time cards, warning notices, company policy, etc. Be prepared to offer the document(s) as evidence at the hearing to prove a relevant matter in dispute. Decide if you need witnesses who have first hand knowledge about the events in question and arrange for them to participate in the hearing.
DO I NEED SUBPOENA TO GET MY WITNESSES TO ATTEND THE HEARING?
You do not need a subpoena if your witness is willing to testify on your behalf. Ask your witness to present at the hearing with you. If a needed witness is not willing to participate in the hearing, you may request that the appeals officer approve the issuance of a subpoena to compel that person’s appearance.
You must immediately request a subpoena in writing and provide a statement explaining why the witness is essential for the proper presentation of your case. It is important that you also provide the name(s) of the person(s) to be subpoenaed and the address(es) where the subpoena can served.
You will be notified if the appeals officer turns own your subpoena request. You may consider renewing your subpoena request for further consideration by the appeals officer at the time of the hearing.
DO I NEED A LAWYER?
A lawyer is not usually needed. Many claimants and employers have appeared at hearings without representation. The appeals officer may assist the parties with their presentation to make sure all parties receive a fair and impartial hearing, whether or not the party has representation.
However, you have the right to be represented by an attorney or other designated representative. If you decide to get representation, do so as soon as possible to allow your representative time to prepare for the hearing. It is your responsibility to notify your representative of the time and place of the hearing. Fees that are charged to claimants for representation are limited by law and must be approved by the appeals officer. [HRS 383-162]
WHAT SHOULD I DO IF I CANNOT ATTEND THE HEARING?
If there is a good reason that prevents you from attending the hearing, the appeals officer may postpone the hearing to give you a fair chance to be heard. As soon as the conflict occurs, send the appeals officer a written request to postpone the hearing date and the reason why you are unable to attend. ESARO staff will inform parties of postponements by mail or telephone call. The hearing is not postponed until it is approved by the appeals officer.
WHAT HAPPENS IF THE OTHER SIDE DOES NOT SHOW UP?
If you get a hearing notice, you should attend the hearing. If you do not attend the hearing, the appeals officer will not have your testimony and evidence to consider when deciding the case.
If the party who filed the appeal does not attend, the appeal officer will probably affirm the UI determination without a hearing.
If no one else but the party who filed the appeal shows up for the hearing, the appeals officer will conduct a hearing and take testimony from the appellant.
WILL I BE TOLD WHO THE OTHER PARTY IS BRINGING TO THE HEARING?
No. The parties are not required to disclose the names of the witnesses they may bring to the hearing.
WHAT HAPPENS IN THE HEARING?
Hearings are recorded and conducted by an impartial appeals officer. The purpose of the hearing is to decide whether the UI determination about the claimant’s benefit entitlement or the UI notice on an employer tax matter should be affirmed, reversed, or modified. The appeals officer will decide the case after considering the testimony of all witnesses and other evidence.
The hearing process is informal, but there is an orderly procedure which the appeals officer will explain. If you have any questions at any time during the hearing, ask the appeals officer for assistance.
- The appeals officer will explain the issue and the conduct of the hearing.
- All parties and witnesses are sworn in as testimony must be given under oath.
- The appeals officer gives all parties their own opportunity to present their facts and evidence. The officer will decide which party testifies first. After a party completes its presentation, the opposing side is given the chance to ask questions of (cross examine) that party. Witnesses who testify are also subject to cross examination.
- Each party will have the opportunity to object to the evidence already in the case file. Parties may submit their own evidence and object to the other side’s evidence, but the appeals officer will decide what evidence s/he will consider.
- The appeals officer will give each party a chance to present additional testimony and evidence in rebuttal to testimony from the opposing side. When additional testimony is presented, opportunity for cross examination of the rebuttal testimony is provided to the opposing party.
- When the participating parties do not have additional relevant information to present, the appeals officer may call for closing statements and end the hearing.
- On an average, hearings take 30 to 60 minutes. Hearings may run longer for more complex cases.
IS THE DECISION ANNOUNCED AT THE CONCLUSION OF THE HEARING?
No. The appeals officer will mail a written decision to all parties as soon as possible. The decision will contain the appeals officer’s findings, reasons and conclusions. It will state whether the appeals officer has affirmed, reversed or modified the UI benefit determination or tax notice.
WHAT CAN I DO IF I DON’T AGREE WITH THE APPEALS DECISION?
An blue colored information sheet about your rights to further appeal will be sent with the decision. If you disagree with the decision, you can request the appeals officer to reopen his/her decision or request judicial review by the appropriate Circuit Court in Hawaii within 30 days after the appeals officer’s decision was mailed.
Reopening applications: Reopening requests are usually granted if you have relevant new or additional information, which for good reason you could not have presented the first time. If you did not participate in the hearing, the case will not be reopened unless you had good reason for not attending.
If the case is reopened, another hearing will be held, if needed. A new decision will be issued, which can also be appealed. If the reopening request is denied, the party that disagrees with that action has 30 days from the reopening denial to file an appeal with the circuit court.
A party has the right to only one request for a reopening of the appeals officer’s decision in a case.