Unemployment Insurance Benefits Hearings

What is an appeal?

What is an appeal?

An appeal is a written statement contesting or challenging a determination, decision or opinion issued by an adjudicator, Appeals Referee, or the Board of Review. You do not need to use any special form in order to file an appeal, but the content of the appeal and the way you file the appeal may be different depending on the type of determination or decision you are appealing.  See the text of the determination or decision itself for specific information on how to file an appeal and the deadline for doing so.

Will I have to repay benefits if an appeal is not in my favor?

Will I have to repay benefits if an appeal is not in my favor?

In some cases, yes. For claims filed June 30, 2013 and after, claimants are subject to repayment of benefits received from any administrative or judicial decision that is later reversed on appeal. 

Who can file an appeal?

Who can file an appeal?

Any claimant or employer who receives an unfavorable determination or ruling may appeal and request a hearing. Only an interested party can file a valid appeal. For example, in a typical separation case (e.g., a quit or a discharge) the interested parties are the last employer and the claimant who filed a claim for UI benefits.

Who are the parties to a hearing?

Who are the parties to a hearing?

Typically, the parties to a hearing are the claimant who filed a claim for UI benefits, the employer for whom the claimant last worked before filing the claim and DES. Any former employer of the claimant could potentially be a party to the hearing.

What happens at an appeals hearing?

What happens at an appeals hearing?

An appeals hearing is a quasi-judicial, administrative hearing where interested parties to the appeal can present testimony and evidence. The official conducting the hearing will give the parties instructions on how to participate.

How will I know the date, time and place of the hearing?

How will I know the date, time and place of the hearing?

A hearing notice is mailed to each party with the date, time and format of the appeals hearing. The notice also provides the name of the Appeals Referee or hearing official who will conduct the hearing and the issues that will be addressed.

Where are hearings held?

Where are hearings held?

Hearings are generally held by telephone conference call and/or in-person at some NC Works Career Centers statewide. For a current listing of NC Works Career Centers where hearings are conducted, you may contact the Appeals Section at 919-707-1060, by fax at 919-733-1228, or by email at des.public.appeals@nccommerce.com

Do I need legal representation in an administrative hearing?

Do I need legal representation in an administrative hearing?

Any claimant or employer may file their own appeal and represent themselves (pro se) throughout the administrative appeal process, or may have a legal representative file an appeal and represent them. Legal representatives should be obtained prior to any administrative hearing or review. A legal representative (including individuals from a third party company serving as an employer’s unemployment insurance administrator) must be a licensed attorney, or a person supervised by a licensed attorney in accordance with the Gen. Stat. Ch. 84 and §96-17(b). Notices and/or certification of attorney supervision must be in writing and sent with the appeal to become part of the official record.

If a party has a legal representative, all documents or information required to be provided to the party will only be sent to the legal representative. Any information provided to a party’s legal representative will have the same force and effect as if it had been sent directly to the party.

What can a legal representative do in an administrative proceeding?

What can a legal representative do in an administrative proceeding?

A legal representative may obtain information about a party’s case, present evidence on behalf of the party, present opening statements and closing arguments, make requests or motions, and give any notice about the administrative proceedings. 

What is the deadline for filing an appeal of a determination?

What is the deadline for filing an appeal of a determination?

The determination will tell you the deadline for filing your appeal. The date listed in the document that you are appealing is controlling. If the last day of the appeal period falls on a weekend or a legal state holiday, the appeal period is automatically extended to the next working day. If your appeal is not filed by the required deadline, it may be denied. 

If I do not appear at the hearing, what will happen?

If I do not appear at the hearing, what will happen?

If you appealed the determination, no hearing will be held, and your appeal will be dismissed. If you are not the appealing party and you do not appear, the hearing will be held without you. The Appeals Referee or hearing official will make a decision based solely on the evidence presented during the hearing. NOTE: The appealing party will not automatically win the case if the non-appealing party fails to appear for the hearing.

Who should I bring to the hearing?

Who should I bring to the hearing?

Witnesses with personal knowledge about the events and information relating to your case are the best witnesses. A witness who can only testify about what others (who are not at the hearing) told him or her, usually presents what is called hearsay evidence. Although hearsay evidence is admissible in certain circumstances, it usually cannot be the sole basis for findings of fact.

If I cannot appear at the hearing as scheduled, can I get the date and/or time changed?

If I cannot appear at the hearing as scheduled, can I get the date and/or time changed?

Yes. To reschedule a hearing, you must contact the Appeals Referee or hearing official and state the specific reasons for the request. The request will either be granted or denied. If there is no response to the request by the hearing date, each party must be prepared to go forward with the hearing.

How can I arrange for witnesses?

How can I arrange for witnesses?

Contact and ask the witness to testify. The best witness is one who was present and has personal knowledge of the facts. A witness who was present at an event is much better than one who was told about it by someone else. If possible, each party and their witnesses should be at the same location for the hearing. If a witness cannot be at the same location and must be contacted at a different telephone number, provide the witness’s name and telephone number to the Appeals Referee or hearing official whose name and telephone number appear on the Notice of Hearing. Instruct the witness to be available at the scheduled hearing time and to remain available until dismissed by the Appeals Referee or hearing official. The Appeals Referee or hearing official cannot call your witnesses before or after the hearing. The Appeals Referee or hearing official can only contact your witnesses during the hearing, when all parties can hear what the witness has to say and have a chance to ask questions about the testimony.

If a witness refuses to participate voluntarily in the hearing, or supply documents that I have asked for, how can he or she be made to comply?

If a witness refuses to participate voluntarily in the hearing, or supply documents that I have asked for, how can he or she be made to comply?

You should contact the Appeals Referee or hearing official listed in your hearing notice or the Appeals Section and request that the witness be subpoenaed. Make the request as soon as possible, so the subpoena can be served before the hearing.

What is a subpoena?

What is a subpoena?

A subpoena is a command to appear at a certain time and place to give testimony. A subpoena duces tecum requires production of documents, books or other items.

What should I put in my request for a subpoena?

What should I put in my request for a subpoena?

Your request must be in writing and must include the:

  • name of the party requesting the subpoena;
  • claimant’s name;
  • docket number of the case;
  • name, address and telephone number of the person you want to appear for the hearing;
  • specific identification of anything sought, including a detailed description and where the item is presently located, including the name and address of the person in possession; and
  • statement of why the testimony or evidence to be subpoenaed is important to the case.
Can my request for a subpoena be denied?

Can my request for a subpoena be denied?

Yes. Your subpoena request may be denied for several reasons including that the request is itself objectionable or unreasonable, evidence requested is not relevant to the issues in your case, or there is insufficient information in the request to determine exactly what documents or evidence is needed for the hearing.

Can I send information to the appeals referee before the hearing?

Can I send information to the appeals referee before the hearing?

Yes. Any information you send to the Appeals Referee or hearing official should also be sent to all other parties to the hearing. The Appeals Referee or hearing official can only consider documents and evidence that are provided to all parties prior to the hearing.

Can I talk to the appeals referee before the hearing?

Can I talk to the appeals referee before the hearing?

The Appeals Referee or hearing official can only discuss procedural matters like scheduling and subpoena requests prior to or after the hearing. Questions about the subject matter of your case can only be discussed when all parties are present during the hearing.

If I appeal, may I later withdraw my appeal?

If I appeal, may I later withdraw my appeal?

Yes. Before a decision is issued on your appeal, you may withdraw your appeal by submitting a written request to do so to the Appeals Referee or hearing official. You must include the same identifying information that was included in your appeal, as well as the appeals docket number, if known. You may also orally withdraw your appeal at the hearing. You must state that the withdrawal is freely done. Only the party that filed the appeal may withdraw the appeal. If the request is granted, a decision will be issued dismissing your appeal and stating that the previous determination or decision will become final. There are no appeal rights to an order that results from a withdrawal.

If my determination covers a matter for which a hearing will be held and I have questions, who may I contact?

If my determination covers a matter for which a hearing will be held and I have questions, who may I contact?

You should use the contact telephone number, email address or fax number provided in the hearing notice that you received. If you are unable to reach someone at that number, contact:

Appeals Section 
Division of Employment Security 
Post Office Box 25903 
Raleigh, NC 27611-5903 
Telephone No.: 919-707-1060 
Fax No.: 919-733-1228 
Email: des.public.appeals@nccommerce.com 

Be sure to give enough information about your determination and case for your call or written inquiry to be forwarded to an individual who can quickly answer your questions.

Where can I get a copy of the Employment Security Law and DES Rules?

Where can I get a copy of the Employment Security Law and DES Rules?

The Employment Security Law is found in Chapter 96 of the North Carolina General Statutes and Title 4, Subchapter 24 of the North Carolina Administrative Code. You can access the law through the DES website, the General Assembly’s website, or the Administrative Office of the Courts website.

Should I show or play a video or audio recording that is important to my case?

Should I show or play a video or audio recording that is important to my case?

Yes, especially if it is the sole basis for the testimony being presented. You must make arrangements with the Appeals Referee or hearing official in advance to ensure that your video or recording can be viewed or heard during the hearing. For in-person hearings, you are responsible for making sure that the necessary equipment is present to allow the video or audio recording to be played during the hearing. The recording must be made a part of the record for the Appeals Referee or hearing official to consider it as evidence, so be sure to bring it in a format that can be kept by the Appeals Referee or hearing official (e.g., a CD-R disc, flash drive, videocassette, etc.). If you have a video or audio recording that will only be meaningful if viewed in-person, you should consider requesting in advance that the Appeals Referee or hearing official conduct your hearing at an in-person location.

How long will my hearing last?

How long will my hearing last?

Hearings are typically scheduled for one hour, but additional time may be allowed for cases with multiple participants or complex issues. If your hearing requires more than the scheduled time, the hearing may be adjourned and completed at a later date and time. If you know that you will bring multiple witnesses or a large number of documents to the hearing, you may request that additional time be allowed for your hearing.

Is it important to be on time for my hearing?

Is it important to be on time for my hearing?

Yes. You should make every effort to be on time for your hearing. For telephone hearings, make sure that your telephone is working, and the line is open and available for incoming calls. The Appeals Referee or hearing official will call you within 10 minutes from the scheduled start time. For in-person hearings, you should arrive at least 15 minutes before the start time of the hearing.

What happens if I am late for the hearing?

What happens if I am late for the hearing?

If you are late for a telephone hearing, you may not be able to join the hearing after the Appeals Referee or hearing official begins. If the Appeals Referee or hearing official is unable to reach the appealing party by phone within 10 minutes from the start time of hearing, the appeal may be dismissed. If a non-appealing party is not available at the scheduled phone hearing within the first 10 minutes from the hearing start time, the phone hearing may begin without it. If an appealing party is 10 minutes late for an in-person hearing, the Appeals Referee or hearing official may dismiss the appeal and allow the other participants to leave. If you are late for your hearing and are unable to participate, you may have to appeal the Appeals Referee or hearing official's decision and request a new hearing.

What evidence should I provide?

What evidence should I provide?

The best evidence is testimony from a person who was present at an event and can answer specific questions about what happened. Hearsay evidence may support a finding of fact if it meets the statutory requirements set forth in N.C. Gen. Stat. 8C, Article 8. If the hearsay evidence does not meet the statutory requirements, then the evidence may qualify as an exception under the hearsay rules found in N.C. Gen. Stat. 8C, Rules 803 and 804. If the testimony is based on a video or audio recording, the recording should be offered into evidence during the hearing.

To have documents or electronic recordings considered, mail, fax, or deliver a copy of each to the appeals referee and each party, before the hearing date. Do this even if you previously submitted the evidence to DES. Only the documents and recordings in the hearing file will be considered, unless the right to view them is waived.

Often, documents and affidavits are hearsay and not enough to prove what happened. An employer who must rely on business records should provide a witness who can testify about how the records were prepared and vouch for their authenticity. Unless it meets the statutory requirement set forth in N.C. Gen. Stat. 8C, Article 9, or qualifies as an exception to the hearsay rule, the evidence cannot be used as the sole basis for a finding of fact. Once the hearing is closed, no additional evidence will be accepted.

What if separation from work was drug and/or alcohol related?

What if separation from work was drug and/or alcohol related?

There must be evidence to prove or disprove any test and its results. Evidence should also include work rules and/or policies. In North Carolina, the Controlled Substance Examination Regulation Act, G.S. 95 §§230-235 requires that tests comply with its procedural requirements, unless the test was administered by the U.S. Department of Transportation or Nuclear Regulatory Commission. Instead of live testimony from a laboratory representative at a contested claims hearing, an affidavit from the lab’s authorized representative may be presented to prove controlled substance examination results, chain of custody and/or compliance with all testing and retesting required by federal or state law. Test results may be deemed proven if the claimant admits or stipulates to them during the hearing or by affidavit. Any documents submitted to the Appeals Referee or hearing official must also be provided to the other party before the hearing.

What is a continuance?

What is a continuance?

A continuance is a rescheduling of a proceeding for a specified period of time. A continuance may be referenced as a postponement or an adjournment.

What is an adjournment?

What is an adjournment?

An adjournment is a temporary suspension of a hearing that is already in progress until a later time.

When would a case be adjourned?

When would a case be adjourned?

An adjournment may be directed or granted in the discretion of the Appeals Referee or hearing official, and only for good cause.

What happens if I missed the hearing?

What happens if I missed the hearing?

You may appeal the decision or order if you missed the hearing. You may request a new hearing and state the reason why you believe that you should be given a new hearing.

If a case was adjourned, how long will it take for the case to be rescheduled?

If a case was adjourned, how long will it take for the case to be rescheduled?

An adjourned hearing will be rescheduled as quickly as possible. Due to conflicts with other hearings, it may take several weeks for your hearing to resume.

Should I continue to claim benefits until all appeals have been decided?

Should I continue to claim benefits until all appeals have been decided?

Yes. As long as you are unemployed, you should continue to file your weekly claim until all appeals have been decided. Benefits will not be paid for weeks not claimed. NOTE: For claims filed June 30, 2013 and after, claimants are subject to repayment of benefits received from any administrative or judicial decision that is later reversed on appeal.

If I win at the hearing, how long will it take to get my benefits?

If I win at the hearing, how long will it take to get my benefits?

If UI benefits are awarded as a result of an Appeals Decision, benefits will usually be released the night the decision is mailed to the parties.

If I'm the claimant and the appeals referee rules in my favor but my employer appeals, what happens?

If I'm the claimant and the appeals referee rules in my favor but my employer appeals, what happens?

You will be notified that a further appeal has been filed. An acknowledgment letter will be mailed to you. The acknowledgment letter will notify you of your rights and further steps in the appeals process. NOTE: For claims filed June 30, 2013 and after, claimants are subject to repayment of benefits received from any administrative or judicial decision that is later reversed on appeal.

What can I do if I disagree with the appeals referee's decision after my hearing?

What can I do if I disagree with the appeals referee's decision after my hearing?

In most cases, you can file an appeal of the decision. The decision will include instructions for filing an appeal and the deadline for doing so.