Frequently Asked Questions About Unemployment Insurance Hearings
General Questions About a Hearing
- 1. Can the hearing office help me with my unemployment claim?
No, the hearing office only deals with appeals to determinations.
For help with your claim, go online at https://my.unemployment.wisconsin.gov. For help using online services or if you are truly unable to go online call 414-435-7069 during business hours Monday-Friday 7:45 AM - 4:30 PM. Callers may be asked to call back on a specific day of the week.
- 2. Where are the hearing offices located?
There are four regional hearing offices for unemployment insurance. They are located in Appleton, Eau Claire, Madison and Milwaukee. See Regional Hearing Office contact information.
Check your hearing notice to make sure you know the location at which you are to appear.
- 3. Why is this employer involved, since Im not claiming benefits from them?
A claimant does not get to choose who they are claiming benefits from.
When a claim is filed, many issues may affect the claimants eligibility and must be investigated when they arise. Additionally, which employers are charged and how much they are charged is dependent on the issue involved, the number of other employers in the claimants base period and the claimants base period wages.
So for example, lets say you worked 10 years for XYZ Corporation and were laid off of work three months ago. XYZ Corp. is not disputing your eligibility for benefits based upon your separation of employment with them.
After the layoff, you started working for ABC Corporation. ABC discharged you and you filed a claim for benefits. At the time you filed the claim, ABC is not in your base period and would not be charged for any current benefits.
However, if your discharge from ABC was for misconduct, you would not be eligible for unemployment insurance benefits until seven weeks after your discharge and until you earned 14 times your weekly benefit rate in subsequent covered wages.
Further, if your discharge was determined to be for misconduct, ABC Corp. would not be charged in the future if you requalified for benefits and filed again at a later time when ABC Corp. fell within a future base period.
- 4. What is an ALJ?
An ALJ is an administrative law judge.
All administrative law judges with the unemployment insurance division are attorneys licensed to practice law in Wisconsin. They are salaried state employees whose primary responsibilities involve holding unemployment insurance hearings and issuing appeal tribunal decisions.
- 5. Do I need an attorney?
This decision is up to you. It is an administrative law judges responsibility to develop the record of the hearing and he or she will question the witnesses.
The factors you may want to consider in deciding whether to engage a representative or attorney include the complexity of the case, number of witnesses, costs, and in tax appeal hearings, that the department will be represented by an attorney.
- 6. Can I be represented by an attorney or an agent at the hearing?
Representation by an attorney or agent is not a requirement at administrative hearings conducted by the department. Many parties represent themselves at hearings.If you choose to have a representative, however, you should know the following:
- The department will not provide or arrange for legal representation of the parties at a hearing.
- No attorney or agent may charge a claimant more than ten percent (10%) of the benefits at issue in the administrative proceeding without prior approval by the department.
- No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at a hearing.
If you choose to be represented by an attorney, please ask him or her to notify the hearing office as soon as possible. Note that the hearing office will not allow your representative to examine your case file prior to the hearing unless it receives a written letter of representation ("retainer letter").
- 7. Is the department represented by an attorney in an unemployment tax appeal hearing?
Yes. An attorney employed by the department is assigned when a tax case is scheduled for hearing. The hearing notice in a tax case will specify the name, address and telephone number of the assigned attorney.
After the issuance of the hearing notice, any questions about the case should be addressed to the assigned attorney.
A request for postponement or submission of verbal or written withdrawal of appeal should be directed to the Madison Hearing Office, with notice to the assigned attorney.
- 8. What does a representative do at a hearing?
Prior to the taking of any testimony under oath, each partys representative will be asked a few brief questions in the form of a position statement to help the administrative law judge determine the issues in dispute and the burden of proof.
The representative has the right to question any witnesses and has the right to object to items being received into evidence.
The representative would also be expected to know what that partys witnesses would testify about. In particular, the representative may be asked to provide an "offer of proof" about the witness. This offer of proof will then be used by the administrative law judge in determining whether that witness testimony will be taken.
A representative may or may not be allowed to make a closing statement.
- 9. Is my testimony really needed?
Yes. A decision will be issued based solely upon the record developed at the hearing.
Documents contained in the hearing file as part of the determination (for example, interview statements, documents sent to the adjudicator by the parties) will not be used unless they are marked as exhibits during the hearing.
If you are the appellant and do not appear, your appeal will be dismissed and the determination will become final. If you are the respondent, the hearing will proceed without you and a decision will be issued based solely upon the appellant’s testimony and any exhibits received into evidence.
- 10. Can I speak directly to the administrative law judge who will be hearing my case?
- No. Ex parte (or one-party) contact with the administrative law judge is not permitted. The administrative law judge cannot discuss the merits of your case with you when the other party is not present.
- 11. Will the hearing be similar to the initial fact finding interview?
No. An appeal hearing is a more formal process than the earlier interview, testimony is under oath and rules of evidence apply during the hearing. The hearing is recorded, so that a record of the entire hearing may be preserved.
The hearing will be your only opportunity to present documents and testimony as evidence in this case. Any future review of this case is based upon the record made at this hearing.
- 12. Who should come to the hearing?
- Individuals with firsthand knowledge of the events or circumstances would be expected to attend.
- 13. Why is the "burden of proof" important in an unemployment insurance hearing?
The party with the burden of proof with respect to a particular issue usually testifies first, giving the other party the opportunity to respond to material that party presents.
For instance, in cases where the parties disagree with respect to the nature of the separation that occurred (whether a claimant quit his or her employment or was discharged), the employer bears the burden initially of establishing the nature of that separation. In cases where an employee quits his or her employment, the employee has the burden of establishing that a statutory exception applies that entitles him or her to claim benefits. If a discharge has taken place, the employer bears the burden of establishing that the discharge was for misconduct or substantial fault.
If the party with the burden of proof does not meet that burden, the opposing party prevails. With respect to most issues in an unemployment insurance hearing, the burden to be met is "the preponderance of the evidence." In the case of a charge of fraud, however, proof of the allegation must be by "clear, convincing and satisfactory evidence."
- 14. What is "hearsay" evidence?
Hearsay testimony is testimony not within the witness own knowledge. An administrative law judge cannot rely solely on hearsay testimony to make any findings.
You can expect to be asked by the ALJ how you know that an event you testified to occurred. If you cannot answer by saying, "I saw it myself " or "I heard it myself", it is probably hearsay evidence. You should bring to the hearing someone who can answer the question "How do you know that happened?" by saying, "I saw it myself".
- 15. Are my business records considered "hearsay" testimony?
There are a number of exceptions to the hearsay rule. Of particular relevance in the context of some unemployment insurance hearings is the "business record" exception.
Wis. Stats. § 908.03(6) provides that the following is not excluded by the hearsay rule:RECORDS OF REGULARLY CONDUCTED ACTIVITY. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the course of information or other circumstances indicate lack of trustworthiness.
Note that the exception requires that "the custodian or other qualified witness" be present to identify the documents in question, and testify from them.
It is also important to remember that whether a report is admissible under this exception depends on whether there are additional levels of hearsay within the report. If there are, all levels of hearsay must qualify under an exception to the hearsay rule.
For instance, an employer may want to establish that the employees supervisor gave him a verbal warning on a given date. In order to do so, the employer may want to offer a computer printout of entries made by the employees supervisor as part of a journal she regularly keeps. The printout may be sufficient to establish that some contact was made between the supervisor and the employee on that date, if the computer records were maintained in the course of a regularly conducted activity. However, the actual content of a conversation documented on the printout cannot be established without resorting to a second level of hearsay. In other words, the employer cannot prove what the supervisor said to the employee without the supervisors firsthand testimony.
- 16. May unemployment insurance taxes be paid under protest while awaiting the results of a hearing?
Yes. Payment of taxes under protest does not prejudice the right to an appeal. Furthermore, payment will stop the accrual of additional interest on the tax portion of the assessment.
The determination of assessment will already include some interest and additional interest accrues at the rate of 3/4% per month simple interest to the date of payment.
Where payment is made under protest and the employing unit's appeal is ultimately successful to any degree, the department must refund the appropriate portion of the payment made under protest including interest on the tax portion at the rate of 3/4% per month simple interest from the date of payment under protest to the date of the refund.