Are you an employer with an upcoming D.C. unemployment insurance hearing at the Office of Administrative Hearings? Our firm has represented hundreds of employers over the past decade at these administrative hearings. Click here to learn what you can expect at the hearing and how we may be able to help.
There can be a lot of unknowns for an employer contesting a DC unemployment insurance (“UI”) claim.1 This is a brief description of what you can expect at your hearing at the Office of Administrative Hearings (“OAH”).2
Plan to arrive at least fifteen minutes prior to the start time listed in the Scheduling Order and Notice of In-Person Hearing you received from OAH. If you are driving, OAH is near the DC and Federal courthouses. Parking is very limited. Allow extra time if you are going to drive. Also, beware that GPS sometimes makes an error about OAH’s location. If you are going to take the Metro, take the Red Line to Judiciary Square and get off on the DC and Federal Courthouse escalator. Once you go to the top of the escalator, 441 4th Street, NW is the first building on your left. You never even have to cross a street if you take the Metro.
Enter 441 4th Street, NW through the large glass front doors. Remember to bring a government-issued picture ID. You will go through the metal detectors, turn to your left and walk to the north elevator bay. Take the elevator to the fourth floor. Once you arrive at the fourth floor, you will see the OAH office. Walk through the glass doors and check the docket at the clerk’s desk for your hearing. You will also see a large TV screen posting the hearings for that day and the hearing room for each case. One company witness should sign-in at the clerk’s desk.
Hopefully your hearing will be called at its scheduled start time. You will walk into a wood-paneled hearing room that looks like courtrooms you may have seen on TV. The administrative law judge (“ALJ”) will be wearing a black robe and sitting on an elevated platform with a witness box next to the ALJ. There will be separate tables for the employer and the claimant/former employee. The ALJ will say (with some exceptions) that there are two issues at hand. The first issue is jurisdiction. That is whether she has the legal authority to hear and decide this matter. The second issue is separation from employment. That is
whether the claimant was separated from employment for a reason that would disqualifying him/her from receiving unemployment insurance benefits.
For the ALJ to have jurisdiction, the appealing party must have requested a hearing to contest the Department of Employment Services (“DOES”) Claims Examiner’s Determination (“Determination”) within fifteen days of the certificate of service date at the bottom of each Determination. The fifteen-day deadline can be extended if there is “good cause” or “excusable neglect.” The burden of proving jurisdiction is on the appealing party. If the appealing party filed after the deadline, the ALJ is likely to place that party under oath to explain the reason for the late filing. The opposing party will have the opportunity to ask cross-examination questions strictly on the issue of jurisdiction. Cross-examination is where a side seeks to establish its case by questioning the other party’s witness, usually with leading questions. The ALJ, after asking any questions she may have, will either state that the filing was late, will hold a ruling on jurisdiction in abeyance, or state that she finds she has jurisdiction and move on to the merits. The ALJ will always issue a written decision, even if she decides not to allow testimony on separation. But, in most cases the ALJ will move on to the issue of separation.
We begin with a law that assumes that all claimants are eligible and qualified to receive UI benefits. The burden is on the employer to prove by a preponderance of the evidence why benefits should not be granted. Even if the DOES Claims Examiner originally found for the employer, the employer still has the burden at OAH. OAH is a de novo hearing. That is a Latin term meaning, as if for the first time. Also, even if the claimant fails to appear at the hearing, the employer still must put on its case (assuming OAH has jurisdiction). There are no default judgments for employers in D.C. UI cases.
Because the burden of proof regarding separation is on the employer, the employer presents its case first. It presents evidence in the form of testimony, documentary evidence, audio or video evidence to prove either misconduct by the claimant or the claimant’s voluntary separation from employment. A preponderance of the evidence means that it is more likely than not that the claimant engaged in the alleged misconduct conduct. In-person and telephonic witnesses are subject to cross-examination. The ALJ may ask questions at any time, as well.
In the District of Columbia, the law recognizes two levels of disqualifying misconduct – gross and other than gross (simple). Gross misconduct basically means that benefits will be denied. A finding of simple misconduct means the claimant will receive 18 weeks of UI benefits instead of the full 26 weeks. Federal UI extensions are not included in this 26-week total. Employers must understand that a valid reason to terminate an employee may not necessarily constitute misconduct for UI purposes as that term is defined by the unemployment compensation statute, the governing regulations and the relevant case law.
The other way for a claimant to be denied UI benefits is for him or her to leave the job voluntarily. If the employer can establish that the claimant’s departure was voluntary, then the burden shifts to the claimant to prove that it was for good cause connected with the work.
After the employer presents its case, the claimant can testify. Because the burden of proof is on the employer, the claimant has the option of presenting its case. In most cases, employers give themselves the best opportunity to win when witnesses with firsthand knowledge of the reasons for separation testify. Hearsay testimony is admissible at D.C. UI hearings, but it is generally accorded less weight than firsthand testimony subject to cross-examination.
If a claimant or his/her witnesses testify, the employer will be able to cross-examine and the ALJ will be able to ask questions of the claimant and his/her witness(es). At the end of the claimant’s case, the employer can put on what is called a rebuttal case. The employer may recall one or more of its witnesses to respond to something, usually something that the claimant has brought up for the first time at the hearing, that the employer believes merits a response in the form of additional testimony.
At the conclusion of the taking of evidence the ALJ may or may not entertain closing statements. This is an opportunity for each side to state what they believe the evidence showed. It is not an opportunity to present new evidence. After closing statements, the ALJ will likely say she is not going to issue a ruling from the bench. Final Orders are generally issued in writing within a month of the hearing. The parties can file post-Final Order motions for reconsideration, for new hearing, or to vacate the Final Order within a certain number of days after the Final Order. Either party can appeal a Final Order within thirty days of the date stamped at the top of the Final Order to the D.C. Court of Appeals.
This summary covers most hearings, but every single hearing is different. Fact patterns vary widely in these cases and if you have questions, you should contact us. Our firm has represented hundreds of employers in over 1,000 D.C. UI hearings over the past decade. We are happy to discuss your matter and offer a low fixed fee for OAH hearings. If you are an employer seeking legal representation concerning a D.C. UI matter or case, please call (202) 795-9999 or click the Contact Us button on our website.