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BEFORE THE HEARING
1.1 APPEARANCE:
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.
1.2 TELEPHONE:
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 2.2
"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.
Prepare Facts
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 the hearing.
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.
1.4 DOCUMENTS:
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.
1.6 CONTINUANCE:
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.
1.7 WITHDRAWAL:
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 PERSONS:
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 information.
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.
1.9 REPRESENTATION:
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 by law.
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.
1.11 QUESTIONS:
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.
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THE HEARING
2.1 PROCEDURE:
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
available.
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.
2.2 HEARSAY:
"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.
2.3 TIME:
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.
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AFTER THE HEARING
3.1 DECISION:
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 inquire.
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
proper filings.
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 so desire.
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THE LAW
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.
4.2 INTENT:
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 - 706:
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 employer.
4.4 QUIT WITH GOOD CAUSE - K.S.A.
44-706 (a):
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
employment (nc);
- 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 (nc);
- 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 agreement (c);
- leaving work because of a compelling, personal
emergency (nc).
The "quit" must be "voluntary"
and cannot be the result of coercion such as resigning in lieu
of being fired.
| (c) |
contributing base period employer
is charged; |
| (nc) |
contributing base period employer is not charged; |
| (c/nc) |
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
(b):
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 (c):
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 benefits.
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.
