Appeal Hearing Procedure
BEFORE THE HEARING
Shortly, you will receive a "Notice of Hearing." This notice
will state the date, time, type (telephone or in-person) and location
of your hearing. Read and follow the instructions contained therein.
If appearing by telephone, you must call the Office of
Appeals and give them the telephone number at which you and each of
your witnesses are to be contacted at the time of the hearing in accordance
with the instructions set forth in the Notice of Hearing. You should
forward those numbers as far in advance of the hearing as possible
and, in any event, no later than 24 hours prior to the start of the
hearing unless there is good reason for doing otherwise.
Failure to appear at the time and place scheduled or to answer the
telephone promptly will constitute a "non-appearance"
on your part. The non-appearance of the party filing the appeal will
result in the witnesses for the other side being released and your
appeal being dismissed. The non-appearance of the non-appealing party
will result in the hearing taking place as scheduled without the non-appearing
party's statements being considered.
If your telephone hearing is continued and you have already turned
in your telephone number as instructed the same telephone number will
be used when your case is re-scheduled unless you call and notify the
Office of Appeals that a different number should be used.
Your appeal hearing will probably be scheduled to take place by telephone.
If you have forwarded your telephone number as instructed, you will
be called by the Unemployment Insurance Judge assigned to hear the
case at the scheduled time.
Before the hearing starts you should make sure your telephone is in
proper working order, keep the line clear and be ready to receive the
call. Occasionally, as a result of a previous hearing lasting longer
than expected, you may not be called at the exact time of your scheduled
hearing. In that event, please stand by and you will be called shortly.
You should plan to appear by telephone in a location free of background
noise so you will be clearly heard. If the Unemployment Insurance Judge
and/or the other party cannot hear you clearly, the Judge has the right
to stop the hearing and schedule it for another time.
Use of cellular or mobile telephones are not allowed
and cordless telephones should be avoided whenever possible. Pay telephones
should not be used unless absolutely necessary. If you must use
a pay telephone, be sure it is one that will accept incoming calls
and is free of traffic and other background noise. If using a speaker
telephone, make sure the area is free of all background
noise and make arrangements so that each of the parties testifying
is no more than three (3) feet from the telephone when speaking.
If you do not have access to a telephone, you must contact the Office
of Appeals immediately and make arrangements for access to one. If
having witnesses appear on your behalf, have them all at the same location
whenever possible in order to reduce the number of telephones being
connected to the conference call.
1.3 PREPARE FOR THE HEARING:
The hearing before the Unemployment Insurance Judge is your only chance
to present everything relevant to the case. The Judge is limited to
considering only the evidence introduced during the hearing. Take advantage
of this opportunity and do not assume that at a later date new evidence
or information can be added.
Take time to prepare for your hearing. Know the issue or issues involved,
obtain documents, and line up witnesses supporting your side of the
case. To help you remember what you want to present at the hearing,
you may prepare a simple chart or written summary with the key information
you want to present. Prepare all evidence and be ready to explain company
records, abbreviations, technical terms, and/or symbols. Do not rely
solely upon written statements of witnesses as part of your evidence
presentation (see page 7, section 2.2v"Hearsay").
Review the Material
Before the hearing, review the other party's statement(s) attached
to the "Protest Acceptance."
Review this carefully so that you know what issues will be addressed
at the hearing. This helps you to prepare, gather documents, and arrange
for witnesses to support your case.
Prepare and Participate Even If You Are Not
the Appealing Party
The Unemployment Insurance Judge's decision is based only on what
is presented at the hearing. You must participate and be prepared to
present and defend your position if you wish your point of view to
be considered. If you choose not to participate, the hearing will proceed
without you, and the decision will be based on the other party's evidence
presented at the hearing.
Facts, not conclusions, are the basis of a good case. Be prepared
to answer the questions of who, what, when, where and why. Saying that
an employer is unfair or that an employee is unsatisfactory is a conclusion.
Prepare facts that prove the point you wish to make, and make evidence
and witnesses that will verify what you are presenting available at
Prepare Your Appeal Based on Facts, Not on
Philosophical Arguments or Proof of Financial Need
Respond to the issues under appeal. Prepare to prove your point of
view on the issues under appeal, not on issues unrelated to the appeal.
Some people incorrectly think that unemployment insurance is based
upon financial need. If you prepare only to argue that you need the
money, you are not prepared to address the issue at hand.
If you plan to introduce into evidence or rely upon any information
contained within a document, you must submit that
document to both the Unemployment Insurance Judge and the opposing
party at least 24 hours prior to the start of the hearing (weekends
and holidays not included). You should do so far enough in advance
to ensure that it will be received in sufficient time to be reviewed
by the other party and the Judge before the hearing begins. All documents
should refer to the appropriate case by Docket Number and the Name
of the Unemployment Insurance Judge assigned to your case as set forth
in the "Notice of Hearing." Failure to submit the documents
in this manner could result in the denial to use these documents as
evidence in the hearing.
1.5 TELEPHONE VS. IN-PERSON HEARINGS:
As stated above, your appeal hearing will probably be scheduled for
a telephone conference. However, the Office of Appeals and/or the presiding
Unemployment Insurance Judge reserves the right to set or reset a hearing
to an in-person hearing if deemed necessary to ensure an orderly and
fair hearing which meets due process requirements. You may request
an in-person hearing rather than a telephone hearing. If your request
is granted, you may appear in-person. The other party may still appear
by telephone if they so choose, unless required by the Unemployment
Insurance Judge to appear in-person.
Make your request to the Office of Appeals immediately
after receiving the "Notice of Hearing"
which will state the type of hearing for which you have been scheduled.
The granting of your request to appear in-person may result in a re-scheduling
of your hearing, so be prepared for that possibility.
After you receive the "Notice of Hearing"
which informs you of the date and time of your hearing, if you cannot
appear at that time, you should contact the Office of Appeals immediately
and request that your hearing be continued and reset for another
date and/or time. Your request for a continuance will only be granted
for "good cause"
and not merely for the convenience of the requesting party. No
request for a continuance will be granted if made within 24 hours of
the scheduled hearing (weekends and holidays not included) unless
for a compelling, personal emergency.
Be prepared to give specific details as to the reason for the continuance
request. Only the presiding Unemployment Insurance Judge or his or
her designee may grant that request. After making the request, unless
you have specifically been informed that your request was granted,
you should plan to appear for your hearing as originally scheduled.
After filing for an appeal hearing, if you change your mind and do
not wish to continue with your appeal, you should make a written
request to the Office of Appeals stating that you want to
withdraw your appeal request. In that event, your request will be granted
and the appeal hearing will be dismissed. You may make an oral request
to the presiding Unemployment Insurance Judge at the time of your hearing
before it begins and it will be granted when appropriate. Only the
appealing party may request a withdrawal.
1.8 REQUESTING SUBPOENAS FOR DOCUMENTS AND/OR
The best way to prove your point may be either the testimony of an
eyewitness or through the documents involved in the case. It is your
responsibility to ensure that documents and witnesses important to
your case are available at the time of the hearing.
When it appears that an important witness may not participate voluntarily
or that a critical document is in the possession of another person,
you may request the Office of Appeals issue a subpoena to require the
person to participate or provide records.
Making the Request for Subpoenas
Requests for subpoenas must be made in writing to the Office of Appeals
at least one week (7 days) in advance of the scheduled hearing. Requests
must specify the reason for the subpoena, the testimony of each witness
and the full address where the witness will be served. If you are subpoenaing
documents, a detailed description of the physical evidence is required.
You must show that the testimony/record adds to your argument and does
not repeat other information. A subpoena is not granted if it is determined
that an undue burden would be placed on the party to whom it is directed
or if the testimony adds nothing to your argument or repeats other
Facts About Subpoenas
A subpoena requires appearance of the witness as directed and is enforceable
by an order of contempt in the District Court. It is a crime for anyone,
including an employer, to impede or penalize an employee for testifying
at the hearing. The department will pay an appearance fee of $10 plus
mileage for a witness under subpoena. A subpoena
cannot be served at an address outside Kansas.
If Your Request for a Subpoena Is Denied
If your request for a subpoena is denied, you may state your objection,
if any, at the hearing. If the Unemployment Insurance Judge also denies
your request, the hearing proceeds; if he or she grants it, the hearing
may be rescheduled to a future date.
Although it is not required, you have the right to be represented
by an attorney or a "Duly Authorized Representative" at your
hearing. The attorney must be licensed to practice law in the State
of Kansas or be in compliance with the provisions of K.S.A. 7-104
and all amendments thereto. A "Duly Authorized Representative" is
defined in K.A.R. 48-3-2(c)
to include only a union representative, supervised law student, an
employee of a corporate employer, or the employee of the employer's
cost control firm. No other non-attorney representative is permitted
All attorneys must file a written entry of appearance
before the hearing with the Office of Appeals.
All attorney's fees are to be paid by the party retaining them and
will not be paid by the Kansas Department of Labor. A claimant's attorney
may not charge a fee greater than an amount approved by the Secretary
of Labor and it is a crime for an attorney to exceed the approved amount; K.S.A. 44-718
(b). After the hearing, the attorney's statement of charges must be
submitted to the Office of Appeals for approval.
An attorney may appear at a location different than that of his or
her client if the hearing is scheduled by telephone. A
duly authorized representative may appear only at the same location
as their client whether their appearance is in-person or by telephone.
1.10 COMMUNICATION DISABILITY OR LANGUAGE BARRIER:
If your ability to participate in the hearing is impaired
because of a disability or difficulty with the English language, contact
the Office of Appeals immediately for assistance and information about
an interpreter. As a general rule, use of your own interpreter will
not be allowed. After proper notification of a need, the Office of
Appeals will arrange to have an interpreter available.
You will not be allowed by law to speak with the Unemployment Insurance
Judge assigned to your case either before or after the hearing in regard
to substantive issues. The only exception would be to discuss procedural
matters needed to be resolved before the hearing. Under no circumstances
will the Judge be allowed to give legal advice to either party.
The hearing will be presided over by an Unemployment Insurance Judge
who is an attorney and employee of the State. You are to follow the
instructions of the Unemployment Insurance Judge during the hearing.
If any participant in the hearing repeatedly fails to follow the instructions
of the Judge or otherwise becomes disruptive, the Judge has the authority
to either deny that individual's further participation in the hearing
or to stop the hearing entirely and issue a ruling on the evidence
The hearing will be conducted in accordance with the requirements
of due process. The formal rules of evidence and court procedure will
be followed, but not strictly enforced. The hearing will be tape recorded
by the Unemployment Insurance Judge in order to preserve a record for
appeal purposes. All other recordings or records
of the hearing are prohibited.
All participants will testify under oath and be subject to the perjury
laws of Kansas. The presiding Unemployment Insurance Judge will question
the witnesses and designate their order of testimony. Each witness
may also be questioned by their own representative at the time designated
by the Judge. The other party may also question each witness for the
other side. Appropriate, legal objections may be made. At the end of
all testimony, each side may make a brief closing statement as a summary
of their position.
The Unemployment Insurance Judge will not rule at the end of the hearing
itself, but will mail both sides a written decision as required by
law. The Judge's ruling will be based solely on the evidence presented
at the hearing. The Judge is not allowed to make contact with anyone
or to consider any evidence outside the formal hearing.
Proper foundation must be laid before any documents will be considered
as evidence. The Unemployment Insurance Judge will assist the parties
in presenting their testimony and other evidence as well as assist
in questioning all the witnesses, but will always remain neutral in
regard to the representation of either party.
"Hearsay" is any statement, whether oral or in writing,
made by another person who does not appear to testify under oath and
be subject to questioning of either the Unemployment Insurance Judge
or the other party. Hearsay is admissible in the hearing, but is not
persuasive if contested. No finding of fact or decision may be based
solely on uncorroborated, hearsay evidence. Hearsay evidence usually
carries less weight and credibility than does first hand testimony,
especially if the other party disputes that information. As a result,
whenever possible, you should have the witnesses themselves who made
the statement and/or observations available to testify during the hearing
and do not rely upon documents or representatives who have no first
hand knowledge of events.
Your hearing will normally be scheduled to last no more than 45 minutes,
depending upon the issues to be covered in the hearing. It is important
that you are prepared and ready to begin at your scheduled time. Each
Unemployment Insurance Judge is assigned to conduct several hearings
each day and must keep to a preset schedule which provides for little
leeway. If you believe your hearing cannot be conducted within that
amount of time due to complex issues, lengthy testimony, multiple witnesses,
voluminous documentation, etc. you should call the Office of Appeals
to discuss the allotment of additional time for your hearing.
2.4 LEGAL PROCEEDING:
Although the strict rules of evidence and court procedure will not
be followed, you must remember this is still a legal proceeding, whether
conducted by telephone or in-person, presided over by an Unemployment
Insurance Judge. You should prepare and conduct yourself accordingly.
Make arrangements to give your full attention to the hearing and do
not attempt to baby-sit, conduct business, accept other incoming calls,
put the parties and/or the Judge on "hold", etc. while the
hearing is in progress. Have all your files, documents, and witnesses
ready when your case is called. It is your responsibility to be prepared
to present your case in full at the time scheduled and your failure
to do so could result in an unfavorable decision.
AFTER THE HEARING
You will not be told of the Unemployment Insurance Judge's decision
at the end of your hearing. The law requires the Judge to issue a written
decision setting forth the findings of fact, applicable law, and an
explanation of how the law was applied to your facts to reach the decision
made. You will receive your decision in the mail within 10 days to
two weeks after your hearing, if not sooner. If you have not received
your decision after two weeks, you may call the Office of Appeals to
3.2 FILING WEEKLY CLAIMS:
You should continue to file your weekly claims even after
filing your request for an appeal or after receiving notification that
an appeal has been filed by the other party. You should continue to
do so even after the hearing has been conducted and during the time
you are waiting to receive your decision in the mail. You will not
receive payment of benefits for any week in which you do not make the
3.3 APPEAL RIGHTS:
If either party disagrees with the Unemployment Insurance Judge's
decision, they may appeal to the Employment Security Board of Review.
Instructions for filing that appeal can be found on the last page of
the Unemployment Insurance Judge's decision. The decision of the Board
will be based solely upon the record created by the Judge at your appeals
hearing. You may appeal the Board's decision to the District Court
and up through the Court of Appeals and Kansas Supreme Court if you
4.1 THE EMPLOYMENT SECURITY ACT:
The law which governs unemployment is found at K.S.A. 44
- 701 et seq and supplemented by the appropriate Kansas Administrative
Regulations beginning at K.A.R. 48-1-1
as well as court decisions related to the Act. The information set
forth below is only intended to give a general summary of the law and
should not be used as a substitute for the full text of the applicable
statutes, regulations, and court decisions.
The intent of the law is to provide income to those who become "involuntarily
unemployed" and to prevent "economic insecurity, due to unemployment"
which is considered to be "a serious menace to health, morals,
and welfare of the people of this state"; K.S.A. 44-702.
Unemployment benefits are not paid as a "punishment"
to an employer who has done something wrong. The money used to pay
for unemployment benefits, for the most part, comes from quarterly
taxes paid into the appropriate fund by the employer on all employees
who work for them. Those taxes are paid solely by the employer and
are not the result of any withholdings of wages from the employee.
There is no set amount of time the employee must work for any one particular
employer to qualify.
4.3 QUALIFICATION - K.S.A. 44
In order to "qualify" for unemployment benefits, the employee
must have either "quit for good cause attributable to the work
or the employer" or was fired under circumstances which do not
constitute "misconduct connected with the work" as defined
by statute. "Qualification"
is based solely upon the reason the employee separated from the last
4.4 QUIT WITH GOOD CAUSE - K.S.A. 44-706
The Employment Security Act sets forth eleven reasons for which an
employee may "quit" and still qualify for unemployment benefits.
They generally include:
- being out of work based upon a physician's advice
due to illness or injury and finding no suitable work still available
with the employer when released to return to work (c/nc);
- leaving temporary employment to return to regular
- leaving to enter military service and the entry is
rejected or delayed (nc);
- leaving work because of the transfer or acceptance
of other work by a spouse in a location which makes commuting impractical
- leaving because of hazardous working conditions (c);
- leaving to enter approved training (nc);
- leaving because of unwelcome harassment (c);
- leaving to accept better work (nc);
- leaving because of being instructed or required to
violate the law in the commission of your job duties (c);
- leaving work because the employer violated the work
- leaving work because of a compelling, personal emergency
The "quit" must be "voluntary"
and cannot be the result of coercion such as resigning in lieu of being
||contributing base period employer
||contributing base period employer is not charged;
||contributing base period employer is charged if the
illness or injury is attributable to the job.
4.5 MISCONDUCT CONNECTED WITH THE WORK - K.S.A. 44-706
Unemployment benefits will be paid to a claimant unless the individual
is fired for "misconduct connected with the work." There
are several scenarios under which an employee may properly be fired
which do not qualify as misconduct connected with the work. "Misconduct
connected with the work" is generally defined by statute to be
a violation of a duty or obligation reasonably owed to the employer
as a condition of employment. The statute specifically excludes from
that definition circumstances such as: unsatisfactory performance if
the individual was acting in good faith and performing unsatisfactorily
due to inefficiency, inability, incapacity, lack of training or experience;
isolated incidents of ordinary negligence or inadvertence; giving notice
of intent to quit; good faith errors in judgement or discretion; circumstances
beyond the claimant's control; or to refuse to do more or different
work than agreed to.
Absence or tardiness is not misconduct unless the
employer had a written attendance policy of which the employee was
aware; the employer gave or sent to the employee written notification
that continued absences may or could result in being fired; and that
absences "without good cause,"
which were in violation of the employer's attendance policy, occurred.
Further, if there is a dispute over whether or not the absences occurred "with
good cause," the employee must prove that a majority of the absences
were for "good cause."
Discharges for drug or alcohol problems at work or failure
to pass a drug screen test as it relates to misconduct connected to
the work is more complex and, if you are dealing with that type of
case, you may contact the Office of Appeals for more specific information.
4.6 CHARGE TO AN EMPLOYER'S EXPERIENCE RATING
ACCOUNT - K.S.A. 44-710
An employer's account will be "charged"
only if the employer is a "contributing base period"
employer and if the individual either quit with good cause attributable
to the work, was fired under circumstances which do not qualify as
misconduct connected with the work, or the work does not meet the special
definition of "part-time." Not all
"quits with good cause" will result in a charge to the employer's
account. All "reimbursing" employers will receive a "charge" if
the claimant is found to be "qualified" for unemployment
4.7 ELIGIBILITY - K.S.A. 44-705:
Once a claimant is found to be "qualified"
which is a "one time" question, there is still a "continuing"
question as to whether the individual is "eligible."
This is a question that is asked on a weekly basis and includes questions
such as are weekly claims being filed properly; has the individual
properly registered with job service; is the individual physically
able to work; is the individual actively pursuing employment? An individual
may be found eligible for one particular week, but not for another.
An individual must be both "qualified" and "eligible" in
order to receive benefits for any given week.
Hearing Procedure, K-OA-P 01
For more information, contact us at:
Kansas Department of Labor
Division of Employment Security
The Office of Appeals
401 SW Topeka Boulevard
Topeka, KS 66603
Toll free 1-800-227-0067