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Appealing a UI Determination
This guide is designed to assist parties throughout the unemployment insurance appeals process in Arkansas. It is intended for informational purposes only. If anything contained herein conflicts with a statute, regulation, or a policy of the Arkansas Appeal Tribunal or Arkansas Board of Review, the statute, regulation, or policy will control.
FREQUENTLY ASKED QUESTIONS
Are Department Determinations appealable?
TABLE OF CONTENTS
Appealing A Department Determination
APPEALING A DEPARTMENT DETERMINATION
After the Department of Workforce Services (DWS) makes a written determination concerning an unemployment insurance claim, the determination is appealable to the Arkansas Appeal Tribunal. At the Appeal Tribunal level, the parties shall have a reasonable opportunity for a hearing before a hearing officer, followed by the officer's decision on the appeal.
TIME LIMIT FOR FILING AN APPEAL
An appeal must be filed within twenty (20) calendar days after the mailing date of the determination. If your appeal is mailed, it shall be considered to have been filed as of the date of the postmark on the envelope in which the appeal was contained, which is not necessarily the date the appeal was placed in the mail.
HOW TO FILE AN APPEAL
An appeal must be in writing and should include the Social Security Number and the name of the claimant in the case. A copy of the determination being appealed should be attached to the appeal. The appellant (the party appealing) may file an appeal by letter or by using a "Petition for Appeal to Appeal Tribunal" (ARK-AT-213) form. Petition forms and help in completing them are available at any DWS office or at the Appeal Tribunal office. However, you should not wait to obtain a petition form, if waiting would delay your appeal beyond the twenty-day limit. To avoid such delay, you may file an appeal by letter. Any DWS office can take an appeal. If the appellant is out of state, the employment security department of that state can assist. The party appealing, or a representative of the appealing party's choice, should sign the appeal. The appeal may be filed, in person or by mail, at any DWS office or at the Appeal Tribunal. The address for mailing an appeal to the Tribunal is: Appeal Tribunal, P.O. Box 8013, Little Rock, AR 72203. If mailed, an appeal is considered filed as of the date of the Postmark, which is not necessarily the date the appeal was placed in the mail. Generally, the Tribunal will consider a faxed appeal as filed on the date of transmission recorded by the facsimile machine. The Tribunal's fax number is 1-501-682-7734.
IMPORTANT NOTICE TO CLAIMANTS ABOUT CONTINUING CLAIMS AND OVERPAYMENTS
If you are a claimant who is claiming benefits while an appeal regarding your benefits has yet to be decided, you should continue to report to the DWS as required, and file weekly claims. If a decision in an appeal case allows a claimant benefits, benefits will be payable only for any week for which the claimant filed a valid weekly claim form. Also, if a decision which allows a claimant benefits is reversed on appeal, the claimant may be required to repay any benefits received.
THE DOCKET NUMBER AND ADDRESS CHANGES
After the Appeal Tribunal receives the appeal, it will assign a docket number and schedule a hearing as soon as possible. The docket number will appear on the Notice of Hearing mailed to you. You should list or note this docket number in all correspondence with the Tribunal. If your address changes while you are a party to an appeal, you should immediately notify the Tribunal and the DWS office through which the claim was filed of the change. A party failing to do so may not receive important correspondence about the appeal.
PARTIES TO AN APPEAL
The claimant and the Director of the DWS are parties to every appeal concerning an unemployment insurance claim. An employer, such as the last employer before a claimant files a claim, may be a party to an appeal, depending upon the employer's legal interest in the case.
The parties to an appeal have the right to be represented by an attorney or by any other duly authorized agent. However, parties are not required to have professional representation. The party is responsible for any fees charged for services of a representative, but the fees charged a claimant by that representative may not exceed the amount allowed under the Arkansas Employment Security Law in Ark. Code Ann. §11-10-108(b)(2).
If there is a question as to whether an appeal was filed on time, the Appeal Tribunal will conduct a hearing on the issue of timeliness of the appeal. If the appeal was not filed within twenty (20) calendar days after the mailing date of the determination, the appellant must show that the delay beyond the appeal period was the "result of circumstances beyond the appellant's control" for the appeal to be considered as having been timely filed. Otherwise, the Appeal Tribunal will not have jurisdiction over the determination appealed from; and the Tribunal will dismiss the appeal on that issue(s). Unemployment benefits would then be paid or denied according to the DWS determination. Because dismissal of an appeal based on untimeliness may determine the final result of the appeal, all the parties to the appeal have an interest in any untimeliness issue. The Appeal Tribunal will notify all the parties to allow them opportunity to participate in any hearing on the timeliness of an appeal.
WITHDRAWAL OF APPEAL
The Appellant may request withdrawal of its appeal at any time before the hearing officer's decision is issued. A request to withdraw may be made orally or in writing. The hearing officer or the Chief Hearing Officer may or may not permit the withdrawal in view of the substantial rights of the parties
HEARING DATES/TIMES/LOCATIONS AND NOTICES
The hearing officers conduct hearings by telephone, or in person, usually at a local DWS office or at the Appeal Tribunal office in Little Rock. Telephone hearings allow parties to participate in hearings when it would be burdensome for them to travel to a common hearing site. However, any party to an appeal on a claim filed within Arkansas has, upon request, a right to an in-person hearing. If distance between parties is a problem, the party requesting the in-person hearing may have to travel farther than the other interested parties. It should be noted that in-person hearings are not held as often as telephone hearings, and for that reason the time between filing the appeal and holding the hearing might be longer than if the hearing were done by telephone.
THE IMPORTANCE OF THE TRIBUNAL HEARING
Arkansas Employment Security Law requires that the Appeal Tribunal provide the parties with a reasonable opportunity for a fair hearing. It is the ONLY opportunity for hearing on the issue(s) appealed which is required by law. The hearing before the Tribunal may be the only opportunity the parties will have to present testimony or other evidence on appeal. The parties should attend the hearing before the Tribunal. Otherwise, the hearing officer will decide the appeal on the basis of information contained in the written record from the DWS. A party should attend the hearing even if the DWS determination was in its favor. Any party failing to attend the hearing could be harmed by not appearing at the hearing to respond to evidence given at that hearing.
STEPS TO PREPARE FOR YOUR HEARING
IF YOU HAVE QUESTIONS ABOUT THE HEARING
Please note that it is not practical to describe all the procedure for every hearing situation in this guide or in a hearing notice. If you do not understand the issues or instructions for a hearing, you may contact the Appeal Tribunal. The Tribunal's telephone number for inquiries is: (501) 682-1063. The Tribunal staff can explain procedures, or the issues in a case, but cannot give the parties legal advice. The parties are responsible for preparing and presenting their cases.
CHANGES IN HEARING DATES/TIMES/LOCATIONS
After the Appeal Tribunal has scheduled a hearing, the hearing officer or the Chief Hearing Officer will grant a request for a postponement or other change in the date, time, or place of the hearing only for good cause. A party should make the request immediately upon learning of the need for the change, and should send a copy of the request to the opposing party(ies). The request should include a clear statement of the reason a change is needed and a reasonable indication of other dates and times during regular business hours the party will be available for hearing. The Appeal Tribunal will not grant requests for postponement made near the time of the hearing except in extreme emergencies.
DOCUMENTS OR OTHER PHYSICAL EVIDENCE FOR THE HEARING
Physical evidence may include written or photographic documents or other objects, such as tape recordings or work materials, which relate to a case. Any documents concerning an appeal which the DWS forwards to the Appeal Tribunal from the Department's record of the case are included in the evidence of record before the Tribunal. The parties may review or obtain such documents before the hearing. The Tribunal will send a party copies of those documents, if requested. Also, any documents which the appellant submitted at the time of the appeal will be included in the file, and may be considered as potential exhibits. The Appeal Tribunal should assure distribution copies of those documents.
WITNESSES FOR THE HEARING
The testimony of witnesses which parties generally find most useful to their cases is testimony, under oath or affirmation at the hearing, by persons who actually observed, or personally experienced, events in the case. A party may find it convenient to have witnesses participate in the hearing voluntarily. However, if you cannot get a person or persons to testify voluntarily, you may wish to request that the person(s) be subpoenaed.
SUBPOENAS FOR WITNESSES OR DOCUMENTS AND OTHER PHYSICAL EVIDENCE
If a witness does not want to testify or has problems being available for a hearing, a subpoena to compel the witness's appearance may be necessary. Your request to the Appeal Tribunal for a witness subpoena should be in writing, and should list the name(s) and address(es) of the witness(es). The request should also include the reason why that person's testimony is necessary for the appeal hearing, such as a brief statement of what you believe the person knows about the facts of your case.
RECORDING OF THE HEARING
The Appeal Tribunal must tape record the entire hearing. The hearing tape will be a critical part of the evidence reviewed upon any further appeal. As a result, all participants in the hearing need to cooperate in the production of a clear recording. Parties and witnesses need to speak in turn, as directed by the hearing officer. Faulty recording or an inadequate record due to disorder in the hearing will very likely delay the case and may necessitate further proceedings to repair the record.
SUMMARY OF THE PARTIES' RIGHTS AT THE HEARING
As a party at the hearing you have the right:
SUMMARY OF THE HEARING OFFICER'S DUTIES IN CONDUCTING THE HEARING
The hearing officer has sole responsibility for the conduct of the hearing. He is to obtain all evidence which is reasonably available and related to the case. The hearing officer should conduct a fair and impartial hearing at which each party has reasonable opportunity to oppose any other party's evidence. The hearing should involve only those issues properly raised by the appeal from the Department's determination(s) and of which the parties have been given notice. The hearing officer should not allow anyone, including the parties, to interfere with the conduct of the hearing. In conducting the hearing, the hearing officer should:
THE DECISION OF HEARING OFFICER
If an appeal was timely filed or a hearing officer decided that the appeal should be considered as having been timely filed, then the hearing officer will reach a decision on the merits of the appeal. The decision on the merits will be based upon the evidence of record after the parties have had a hearing (or at least a reasonable opportunity for hearing) on the issues on appeal. The hearing officer's decision on the merits of the appeal will affirm, reverse, or modify the Department's determination; or it will remand the case to the Department for further action. An affirmance leaves the unemployment compensation claim as it was before the filing of the appeal. A reversal reaches the result opposite to the determination. A modification changes the effect of the determination in some way. A remand sends the case back to the Department for further action, usually for a redetermination. The Appeal Tribunal will mail copies of its decision to the parties at their last known addresses. If the decision of hearing officer dismisses an appeal because it was untimely filed, then the Appeal Tribunal decision effectively affirms the Department's determination.
FAILURE OF AN APPELLANT TO APPEAR AT THE HEARING - AND REOPENING
If you are the appellant from a determination of the DWS and you did not appear at the hearing before the Appeal Tribunal, you may request that the Tribunal reopen the case. The request to reopen should be addressed to the Appeal Tribunal. A request for reopening must be made in writing and must be filed within the same twenty (20) calendar days after the mailing date of the hearing officer's decision as is provided for further appeal to the Board of Review from the decision. If you file a request for reopening after the twenty-day period has passed, before the reopening issue can be considered, a hearing must be scheduled on the timeliness issue which will be conducted by the Board of Review. Then, if that timeliness hearing results in a decision finding the request for reopening timely, the case will be returned to the Appeal Tribunal and the reopening procedure will go forward.
APPEAL TO THE BOARD OF REVIEW
Decisions of hearing officers, including dismissals of untimely appeals, are appealable to the Arkansas Board of Review. A Tribunal decision denying reopening includes the decision which caused the appellant to seek reopening. The merits of that prior Tribunal decision and the denial of reopening are appealable together, as is any other hearing officer's decision except an order of remand. The decision of a hearing officer will include a statement about further appeal rights. Also, there should be included with every Tribunal decision a Notice from the Appeal Tribunal to All Interested Parties which further describes what to do if a party disagrees with the hearing officer's decision. If you are not seeking reopening or if the Appeal Tribunal has already denied your reopening request, you may file an appeal to the Arkansas Board of Review. NOTE: THE IMPORTANT NOTICE TO CLAIMANTS ABOUT CONTINUING CLAIMS AND OVERPAYMENTS remains in effect while any further appeal is pending.
TIME LIMIT FOR APPEALS TO THE BOARD OF REVIEW
The appeal must be filed within twenty (20) calendar days after the mailing date of the Decision of hearing officer to the last known addresses of the parties. If your appeal is mailed, it shall be considered to have been filed as of the date of the postmark on the envelope in which the appeal was contained, which is not necessarily the date the appeal was placed in the mail.
HOW TO APPEAL TO THE BOARD OF REVIEW
An application for appeal to the Board of Review must be filed in writing. Always include in your appeal the Appeal Number on the Appeal Tribunal Decision (for example, 2002-AT-___), the Social Security Number of the claimant in the case, and the typed or printed name of the claimant. You may file the application for appeal by letter or by a Petition for Appeal to the Board of Review (ARK-BR-100) form. Petition forms and help in completing them are available at any DWS office or the Appeal Tribunal office or the Board of Review office. However, you should not wait to obtain a petition form, if waiting would delay your appeal beyond the twenty-day limit. To avoid such delay, you may file an appeal using any written means. The appealing party, or designated representative of the party, should sign the appeal. The appeal may be filed, in person or by mail, at any DWS office, at the Appeal Tribunal office, or at the Board of Review. The address for mailing an appeal directly to the Board is: Board of Review. P.O. Box 8016, Little Rock, AR 72203. You will also find the Board's mailing address on the Notice from the Appeal Tribunal to All Interested Parties, which is enclosed with the Decision of hearing officer. If mailed, an appeal is considered filed as of the date of the postmark. In mailing an appeal, it is the appealing party's responsibility to see not only that the appeal is placed in the United States mail within twenty (20) calendar days after the mailing date of the Decision of hearing officer but also that the appeal is postmarked within that time period. The Board will generally consider a faxed appeal as filed on the date recorded by the fax machine, if it is received during normal business hours (8:00 A.M. - 4:30 P.M., Monday through Friday). The Board's fax number is (501) 683-4310.
PROCEDURE ON APPEAL TO THE BOARD OF REVIEW
Upon its receipt of an appeal, the Board of Review places the case on its docket and requests that the Appeal Tribunal forward its record of the case to the Board. Then, after a preliminary review of the record and documents on appeal to the Board, the Board of Review sends a letter to the parties stating that the appeal has been received and listing the docket number at the Board. That docket number should be noted in all further correspondence with the Board of Review. If your address changes while you are a party to an appeal to the Board, you should immediately notify the Board and the DWS office through which you filed your claim of the change. A party failing to do so may not receive important correspondence about the appeal. The parties to an appeal before the Board of Review have the same right to obtain representation as before the Appeal Tribunal. If there is a question with regard to whether an appeal was filed timely, that is, filed within the twenty-day appeal period, the Board of Review will direct that a hearing be conducted on the timeliness of the appeal. If the appellant shows that the appeal was timely filed or that it was not filed within the twenty-day appeal period as a result of circumstances beyond the appellant's control, the Board would consider the appeal as having been timely filed and take jurisdiction over the appeal. Otherwise, the Board would dismiss the appeal, and the decision of the Appeal Tribunal hearing officer would remain in effect without the Board having considered the merits of the appeal.
LIMITATIONS ON FURTHER EVIDENCE AT THE BOARD OF REVIEW
In the vast majority of cases before the Board of Review, the Board decides the issues on appeal by reviewing only the evidence which is in the record at the close of the Appeal Tribunal hearing. If you send the Board information in addition to that which you provided DWS or which the Tribunal accepted as evidence, such argument or offers of additional proof are not automatically accepted as evidence. However, the Board will consider the additional information in relation to the evidence already in the record. The Board will then determine whether to direct that a further hearing be conducted to allow the additional information to be taken into the record as evidence. The Board of Review cannot consider such additional information as evidence in reaching its decision, unless the Board directs that the information be taken in a hearing at which each party has a fair opportunity to dispute such evidence.
The Board of Review may remand the case to the Tribunal for the taking of additional evidence or correction of error, and may direct that the Tribunal issue a new decision following such hearing. That decision of hearing officer would be appealable to the Board of Review. However, in some cases during its review the Board may discover that additional evidence might be especially important to the rights of the parties, even if there was no error at the Tribunal. In such cases, the Board of Review may direct that a further hearing be conducted for the Board by a member of the Board's staff. However, you can expect the hearing by the Board to be conducted using procedures similar to those at the Appeal Tribunal hearings.
DECISIONS OF THE BOARD OF REVIEW
After the Board has reviewed the complete record of evidence as forwarded by the Appeal Tribunal and any additional evidence the Board may have directed to be taken in further hearing, the Board will reach a decision in the case and mail it to the parties at their last known addresses. The Board of Review may affirm, reverse, or modify the findings and conclusions of the Appeal Tribunal, or remand the case to the Tribunal (as noted above), or remand it to the DWS for further proceedings.
APPEAL TO THE ARKANSAS COURT OF APPEALS
All decisions of the Board of Review are appealable by Petition for Review to the Arkansas Court of Appeals. However, some preliminary rulings or orders of the Board of Review are not final, appealable orders. Preliminary rulings, even if issued separately, are usually appealable with the Board's final decision in a case. Also, Orders of Remand to the Appeal Tribunal or to DWS are not appealable. Every decision of the Board of Review will include a statement about further appeal rights. Also, there should be included with every Board decision a notice which further describes the procedure for appealing to the Court of Appeals.
OVERPAYMENT OF BENEFITS
Benefits you received to which you were not entitled are known as overpayments. Depending on the situation, these overpayments can be divided into two groups: those which are your fault and those which are not.
If you believe that a benefit check was issued to you improperly or in the wrong amount, do not cash the check. Contact the Benefit Payment Control office immediately for instructions on how to return the check(s).
A "fraud overpayment" can result if you withhold or misrepresent material facts. A fraud overpayment can result if you accept and cash a benefit check you know or should know you are not entitled to receive.
You must repay a fraud overpayment. The entire overpaid amount is due at the time the Notice of Overpayment is issued. However, the Department does accept installment payments if you notify the Department and reach a suitable payment agreement.
Any overpayment amount not paid by you may be deducted from benefits during that benefit year and for five years thereafter. Additionally, your state income tax refund may be intercepted in order to recoup the overpayment for which you are liable.
A "non-fraud overpayment" results when it is determined that overpayment was through no fault of your own, or you did not misrepresent or withhold material facts. The overpaid amount may be deducted from future benefit payments during a four-year period immediately following the date of determination of the amount of overpayment. However, if it is determined by the director that it would be against equity and good conscience to recover the overpayment, then you will not be liable to repay the overpayment.
The Arkansas Employment Security Law is found in the Arkansas Code of 1987 Annotated, Volume 7; Title 11, Chapter 10 (Ark. Code Ann. §11-10-101 through 11-10-804), as currently supplemented.
Provisions for the procedure described in this guide are found principally at Ark. Code Ann. §11-10-522 through 11-10-531, §11-10-108, and §§11-10-315 through 11-10-317.
Administrative notice is the Hearing Officer's ability to recognize certain facts without obtaining evidence from the parties. These can include, among other things, laws, regulations, historical events, and geographic features.
Affirm is to agree with the previously issued determination or decision.
Appeal Tribunal is the body that holds hearings and issues decisions after a party files an appeal of an Agency Determination. It is the first appeal level.
Appellant is the party who filed the appeal.
Board of Review is the body that reviews cases and issues decisions after a party files an appeal of an Appeal Tribunal decision. It is the second appeal level.
Chief Hearing Officer is the supervisor at the Appeal Tribunal.
Circumstances beyond the appellant's control are those factors which the party filing the appeal did not cause and could not have prevented that caused a delay in filing an appeal.
Claimant is the person who filed a claim for unemployment insurance benefits.
Determination is the Department's decision on the eligibility of the person who filed a claim for unemployment insurance benefits.
Docket is the list of cases that have been appealed.
Docket number is the number given to a case once it is put on the list of cases that have been appealed.
Evidence is proof and may consist of testimony, documents, records, or objects.
Firsthand information is information from somebody who personally observed the event about which s/he is giving information.
Good cause is a reason that excuses an otherwise inexcusable act.
Hearing is the proceeding where a hearing officer takes testimony about the issue that has been appealed.
Hearing Officer is the person who conducts the hearing.
Hearsay is testimony in a hearing of a statement made outside of the hearing that is given to prove the truth of the matter asserted.
Jurisdiction is area of authority.
Last employer is, with few exceptions, the last place the claimant worked before filing a claim for unemployment insurance benefits.
Notice of hearing is the written document that tells you when and where your hearing will be conducted.
On the record is the portion of the hearing that is recorded. It is the only time testimony can be taken.
Parties are those people or organizations entitled to receive notice of the hearing. They include the claimant, the Department and, in most cases, an employer.
Postmark is the ink stamp the postal service puts on a letter indicating the date it began the process of delivering the letter.
Remand is the act of sending something back to a lower level for further action.
Reopen is to permit the introduction of new evidence by conducting another hearing.
Reverse is to disagree with the previously issued determination or decision.
Subpoena is an order requiring a person to testify in a hearing.
Subpoena duces tecum is an order requiring a person to produce documents, records, or other evidence described in the subpoena.
The record is all of the documents and testimony considered in reaching a decision.
Addresses and Telephone Numbers of the