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A few thing that can happen when your employer has appealed to the board of review

I am going through an appeal review next week. My case is in the state of NV. What can I expect if I lose my unemployment benefits? This is the second appeal. I won the first one, and now my former boss is appealing the appeal decision. If I win this, can he come after me AGAIN?




Hi,
If you had given me some more information such as ..

Was the employer in attendance at the first level hearing?

Did the employer make a request for a continuance during that hearing that might have been denied and not in accordance with statute?

I might have considered your question answerable on a personal level .. maybe, but it did provide an opportunity to repeat in one place what I have already scattered throughout other Q&A's.

When your employer appeals to the unemployment board of review


And even when you do.

There are really only two reasons for this type of appeal. The hearing officer erred when applying the law to individual facts of a case or when the hearing officers or some glitch happened somewhere in the appeal process that is in opposition to your rights of due process .. rules of procedure for the hearing.

But when someone tells me their former employer has appealed .. my first thought is that it's because the employer was unable to attend the first hearing. This is purely based on thousands of requests for postponement that I made for them and were denied .. next step? Request a reopening. It's not all that difficult to get one in many states and there will just be a non-appearance added to the list of issues to be addressed on the new hearing notice.

And coming from the "job" I came from, I know that if I requested a postponement for an employer which provided good reasons to allow it .. it then just became a matter of appealing to the board of review to get the case reopened and remanded back to the lower level for ANOTHER HEARING.

This is done frequently when the hearing decision arrives.

But if your employer attended the hearing and you did win .. your stress level should go down some.

Appeals based on the hearing officer's decision itself are much more difficult to be successful with and require a sound and legal argument (a legal brief).

If you win the first hearing and your employer then appeals to a board for review of the record created at the first hearing .. it's not you that has to win .. it's the employer that has to show the hearing officer was wrong.

You could, if you want simply write an affirmation letter to the board. (Tell them why you think they should affirm with your own legal brief)

Yes, I know, your basic question is can the employer .. or anyone for that matter, appeal higher than an unemployment review board.

Of course they can, but most don't.

Why not?

It's expensive. It would most likely, wind up costing close to, if not more, than what it would cost them to just let you collect the benefits.

But there's always the "principle of a thing" that can cause some employers and claimants alike to throw their checkbook to the wind and dig in on "the pure principle of the thing".

Generally speaking, because this all can vary by state, review boards have the power to do a few things with an appeal .. depending on the basis of the appeal.

They reverse the hearing officer's decision and you then have to repay the benefits or you get them if it was your appeal

They sustain or affirm the hearing officer's decision and then the appealing party will most likely consider the use of and/or the additional and costly expenses before another appeal which would be an appeal to a "real" court.

Review boards can also modify the decision.

They can also vacate the first hearing decision and reopen the matter by remanding the case back to the lower level for another hearing (usually de novo), or as if the first one never took place .. Your benefits may be stopped again or suspended in this case if you won the first hearing and that decision was vacated.

They also might just send it back for "additional testimony" because they believe that the hearing officer erred by not "fully developing the record". (Maybe you tried to submit a document or offer testimony deemed irrelevant), but the board agrees that it is relevant.

Basically, they issue an order and the unemployment appeal section complies by doing what they are told to do .. or the unemployment department might appeal the board decision.

Most boards of review don't hold a hearing, and some states don't even have one .. you just jump right to court. They all do not hold a hearing .. some only allow "written arguments".

Most do not accept additional testimony or documentation either because their review is based upon the "RECORD ONLY" that the first hearing created.

Have I mentioned lately that an unemployment claim is a legal claim for money and that ignorance of the legalities can be a primary reason you fail to get benefits?


Comments for A few thing that can happen when your employer has appealed to the board of review

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Jan 12, 2013
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how long does it take to for a referee to make an appeal decision
by: Anonymous

Hi I had my appeal on Friday and they said they would mail a decision to us un regards to the unemployment. I thought I would get one at the hearing. Do you know how mong it usually takes a ref to make a decision in NV?



Hi,

It's usually only a state inundated with appeals that get them out past the two week mark after the hearing.

Timely issuing of hearing decisions is a matter of federal guidelines for resolving (issuing a decision) any appeal in a timely manner.

Once receipt of an appeal letter is acknowledged by a state, the countdown, so to speak, begins.

The guidelines (as related to me by more than one hearing officer denying my requests for postponement in days past) was a thirty day timeframe.

So, if after your appeal was sent and you finally receive a notice of hearing docketed for three weeks after your appeal arrived .. I'd expect a decision within a week.

But it's not like a state will be punished for every untimely decision. That's a matter of a state's performance and benefit accuracy record.

If it's bad, it may affect the grant a state receives from the federal government to administer their program.

(Employers pay both state and federal unemployment tax. The state tax pays for the actual benefits, the federal tax pays for administration costs and other related programs)

Generally speaking, if you do not receive a decision by the next time you have to certify for benefits .. or two weeks after the hearing, which ever is greater, I say, if it were me, it would be time to inquire as to where the decision is.


Mar 09, 2014
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Request to reopen appeal by employer
by: Mathias

I was terminated from my position of 4 1/2 years for "violation of policy". I initially was denied unemployed benefits because of a claim of misconduct. However, I won my appeal because the appeals referee believed my version of events, and my former employer did not provide documentation of my misconduct or copies of the policies I was accused of violating.

Now I've received notice that my former employer is requesting to reopen my appeal, claiming that they faxed the documents but the referee did not receive them. I would like to know if you think that it is likely that my appeal will be reopened, and what I can expect to happen at that point?

I am in Florida, and thank you for your insights.




Hi,

If the employer can show that they did in fact, fax the documents (easily accomplished by a successful fax transmittal, and I would think the "record" of the referee hearing includes the employer telling the referee that they faxed the documents .. and possibly asked for a continuance), my thought is the board would remand it back down to the tribunal level.

But .. that's a lot of ands.

So here's some ifs.

If the employer is successful in showing the hearing officer did in fact ignore their rights to due process and deserves another chance to present separation information once again (what you do at a tribunal level hearing) .. I don't know if the board would allow the current hearing decision to stand and just remand back down for the same hearing officer to take additional evidence and/or testimony, or vacate the hearing decision and remand for a brand new hearing .. in front of a new hearing officer (to avoid a decision prejudiced by prior knowledge) to do the whole shebang again .. like the first never happened.

Or, since I have no idea what actually happened during the "record" .. they might just affirm and dismiss the appeal.

Although I know some employers go to hearings unprepared because they do lack documents and first hand testimony .. that was never something I would advise.

My advice is consistent .. prepare everything prior to the hearing (what I did, and you can bet I used to have that "fax transmittal" to support in the event of a board appeal")and protect your rights to due process during the hearing because it's the good cause to help find hearing officer errors and defects for a board appeal.

Nov 17, 2014
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appeals
by: Dulcie

I was terminated from my job citing misconduct, but there was none shown from the employees so I won the first hearing they appealed it had second hearing. I won that one also can they appeal again?




Knowing the name of the state and whether the employer appeared for either hearing would be helpful ..

Mar 24, 2015
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Will I have to pay benefits back?
by: Anonymous

I quit my job due to continuous harassment and filed for unemployment. My employer appealed and won. Then I wrote to the board of review and they reversed the referee's decision. I started receiving benefits. Then my employer appealed to the board of review. I was served a subpoena. If my employer wins the case, will I have to pay back the benefits? I am in Illinois. FYI my ex employer is a law firm.

Mar 24, 2015
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Paying back benefits
by: Chris

They appealed to the IDES board of review and not a real court?

That's usually the next step for any appeal after a board reverses without first remanding the case back down to the tribunal level.

If they get that reversal reversed again, then I suspect yes, you would have to repay the benefits, unless Illinois has an overpayment wavier provision that might be applied in your case.

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