Unemployment Insurance Tax - Frequently Asked Questions About the Employer Appeals Process
For information about what precipitates an employer appeal, please visit our Audits Web page.
When you file an appeal, your case is scheduled for a hearing with an administrative law judge from the unemployment insurance appeals office. The hearing is a fact-finding process. The judge listens to each side and makes a decision on the issues in the case. The hearing is formal because legal procedures are used. Hearings are usually conducted via telephone conference call. Each party is asked to call a toll-free telephone number and speaks to a conference operator who sets up the hearing. Witnesses testify under oath and in the order set by the judge. Each party has the right to ask questions of the witnesses. Documents can be submitted as evidence, and are typically mailed or faxed to the other parties prior to the day of the hearing. The hearings are tape-recorded. The record made at the hearing is the only thing reviewed if the judge's decision is appealed further. The hearing is important since it is the only chance you have to present the facts of your case.
A Notice of Hearing will be mailed to you at least seven days before the hearing. Carefully read the notice and any papers attached to the notice. The notice tells what the case is about, the laws or rules involved in the case, the time and date of the hearing and where the hearing will be held if it is not a conference call. A notice for a telephone hearing lists the telephone number you must call at the time of your hearing. If you have requested a hearing and then moved, immediately inform the appeals office of your new address.
If you are unable to participate in the hearing as scheduled, call the appeals office immediately (605.773.6785) to request a postponement. The hearing will be postponed only for good cause. The request for a postponement should be made at least one day before the hearing. If you have requested a hearing and later decide not to proceed with your hearing, your appeal may be withdrawn at any time before the hearing. You should mail a letter withdrawing your appeal to the appeals office as soon as possible so the other party can be notified that the hearing is canceled.
Most hearings (more than 90 percent) are conducted by telephone conference call, but occasionally the circumstances of a case require an in-person hearing. An in-person hearing is usually held at the nearest South Dakota Department of Labor and Regulation office. In a telephone hearing, the parties and their witnesses testify over the telephone. Use of cellular and pay phones is discouraged due to noise and connection interference. If you must use a pay phone, please advise the conference operator of this when you call in for your hearing. Everyone is able to hear the witnesses, and the parties can ask the witnesses questions. The hearing is tape recorded to make a record. If you are scheduled for a telephone hearing, pay close attention to the Notice of Hearing and any instructions included for telephone hearings. If you object to a telephone hearing, you must make a written request for an in-person hearing explaining why an in-person hearing is needed in your case.
You have the right to be present and represent yourself at the hearing. Under South Dakota law an attorney or any other authorized representative may represent a claimant. Employers may be represented by an officer or employee of the business or an attorney licensed to practice law in South Dakota. The judge is trained to conduct hearings where one or both parties are not represented. You need to decide whether to have a representative or attorney at the hearing. If you decide to hire an attorney, do it right away and notify the appeals office. Your lawyer will need time to prepare your case before the hearing. If you hire an attorney, it will be at your own expense. You may be eligible for legal assistance through one of the state's legal services programs if your income and resources are limited. Additional information about obtaining legal representation can be obtained through the South Dakota Lawyer Referral Service.
Although the exact procedure will vary depending on the nature of the case, the basic process goes like this:
The hearing will start at the time shown on the Notice of Hearing. Be sure you appear or call for the hearing on time. If you do not call in or are late for the hearing, your case will probably be dismissed, or it may be decided based on other available evidence.
At the beginning of the hearing, the judge explains the hearing process, the issues to be decided, and the order of testimony.
The witnesses are sworn.
The parties, in the order specified by the judge, present their cases by testifying, calling other witnesses and presenting documents or other evidence.
After each witness testifies, the opposing party can ask questions of the witness. This is not a time to argue with the witness or make comments about the testimony; it is a chance to question the witness to verify the accuracy of the testimony or obtain information that is helpful to your case. The judge may also ask questions of the parties and their witnesses during the hearing.
After the parties are finished presenting information and asking questions of the witnesses, each party may give a closing statement, and the judge closes the hearing. Normally, no information is accepted into the record after the hearing is closed.
If you believe the opposing party's testimony will be different from yours, you may want to have witnesses or other evidence to help your case. Talk to potential witnesses before the hearing to find out what they know about your case. You should present witnesses with personal knowledge of the facts. A person who did not observe what happened or whose memory is bad is a poor witness. Use only witnesses you really need. If you have several people who would say the same thing, use the person who can best state the facts. Make sure your witnesses are available to participate at the time set for the hearing. If witnesses who are needed for your case refuse to appear, a subpoena ordering them to appear for the hearing can be issued.
You will receive with the Notice of Hearing documents related to your case. If you have other documents or evidence to prove your case, mail or fax copies to the appeals office promptly after you receive the Notice of Hearing. If you want any of these documents considered by the judge in making a decision, ask the judge to mark the documents as exhibits in your case at the hearing. Parties should cooperate in exchanging information before the hearing. If the other party will not give you documents needed to prove your case, you can have a subpoena issued for the information.
Requests to subpoena witnesses or documents should be made as soon as you receive the Notice of Hearing. You must state why the witness or document is important to your case. In deciding whether to grant or deny the subpoena, the judge will consider if your request is reasonable and if the witnesses or documents are necessary. In your request, you must supply the name and home address of any witness you want subpoenaed and describe the documents you need. Subpoenaed witnesses who appear at a hearing are paid witness fees and mileage for each mile traveled in South Dakota going to and from the place of the hearing. The Department of Labor and Regulation pays the costs for issuing subpoenas and pays the witness fees and mileage after the witness submits a payment voucher.
Listen to what the judge tells you. If you do not understand, ask questions before the hearing starts. Make sure you understand the issues for the hearing. Explain the facts of your case in a clear and orderly way, and give only the facts that are important. Do not waste time on things that have nothing to do with the issues in the case. Do not repeat yourself. If the judge or the other party asks a question, answer it directly and honestly; do not add extra information. Be prepared to ask your witnesses questions to present his or her testimony to the judge.
Listen to what the other side says. Do not interrupt. You will get your turn to ask questions and respond after the witness finishes testifying. Take notes so you can ask good questions and properly respond to the testimony. You should ask the other side questions only about important matters where the testimony can help your case. It is important that the judge believes you are telling the truth. Getting angry, being rude or arguing with the opposing party, witnesses or the judge will not help your case. Individuals who are disruptive may be expelled from the hearing.
The final decision will be mailed to the parties as soon as possible after the hearing. The decision will state the important facts of the case, the legal conclusions and reasons for the decision, and an order stating the result of the decision. The decision may disqualify the claimant from receiving unemployment insurance benefits or may allow the claimant benefits that may be chargeable to the employer.
If you think the judge's decision is wrong, you can appeal it in one of two ways:
You can file an appeal of the decision directly to Circuit Court within 30 days after the date of the decision.
You can file a request for a second Department of Labor and Regulation review by mailing an appeal to:
South Dakota Secretary of Labor and Regulation
P.O. Box 4730
Aberdeen, SD 57402-4730
The appeal to the Secretary of Labor and Regulation must be made within 15 days of the date of the decision.
The Secretary's decision may be further appealed to Circuit Court within 30 days of the date of the decision. Decisions of the Circuit Court may be appealed to the South Dakota Supreme Court. If you have any questions about filing an appeal of an administrative decision, consult an attorney.