COVID-19 UPDATE: Please be aware that the average time from appeal submission to a hearing before an administrative law judge is roughly 60-90 days. This is due in part to the high volume associated with the Pandemic, but also because the appeal process is a quasi-judicial process with formal sworn testimony, evidence gathering, and dual-party appeal rights. Hearings are scheduled in the order in which the appeal is received, and claimants should expect to receive a formal hearing notice and exhibits once a hearing has been scheduled. Hearing notices and exhibits are mailed to all interested parties via the U.S. Postal Service. When you receive the hearing notice please read it and follow the instructions. Please be aware that the appeals process is separate and apart from the unemployment insurance benefits program and customer representatives within the UI Claimant Assistance Center do not have access to appeal information.
What Can I Appeal?
Claimants and/or employers can appeal eligibility determinations by the Department. Eligibility determinations are decisions by the Department that result in either the issuing of benefits or the disqualification of benefits.
- Formal determinations of eligibility or disqualifications issued by the Department
- The Weekly Benefit Amount of your claim if you feel it was miscalculated
What Can I Not Appeal?
- The maximum number of weeks available in a particular program
- The maximum dollar amount of benefits
- The end of a federal program such as Extended Benefits or Pandemic Unemployment Assistance
- The law that governs the Unemployment Program
How do I File An Appeal?
Instructions for how to file an appeal are provided with any formal determination issued by the Department. Determinations can be issued either by mail or email. Appeals must be sent to the appeals unit in writing.
Three Appeal Levels
LEVEL ONE - The first level of Appeal is before an Administrative Law Judge. Appeals to the Administrative Law Judge must be submitted, in writing, no later than 30 calendar days from the date of the determination being appealed. Appeals are scheduled in the order in which they are received. Once the appeal has been scheduled, all interested parties will receive a hearing notice with instructions on how to submit evidence to be considered during the hearing. Hearings are conducted over the phone and are recorded, and each party is offered the opportunity to provide sworn testimony and present witnesses. During the hearing, the Administrative Law Judge will review all evidence that was submitted prior to the hearing and ask any relevant questions of either party.
LEVEL TWO - The second level of Appeal is before the Vermont Employment Security Board. Appeals to the Vermont Employment Security board must be submitted, in writing, no later than 30 calenedar days from the date of the decision being appealed. The Board will conduct a hearing in Montpelier to review all testimony and evidence presented at the Administrative Law Judge hearing. Either party may participate in the hearing either in person, or over the phone, but no new testimony or evidence may be presented. After the Board hearing is completed, a written decision will be sent to all parties involved. The Board can choose to sustain, reverse, or modify an Administrative Law Judge's decision, or it can remand the case back to the Administrative Law Judge in order to gather more information.
LEVEL THREE - The third level of Appeal is before the Vermont Supreme Court. The Clerk of the Employment Security Board must RECEIVE appeals to the Vermont Supreme Court, in writing, no later than 30 calendar days from the date of the decision being appealed. Although it is not required, many people engage the services of an attorney before proceeding with an appeal to the Supreme Court. There is a filing fee for appeals to this level, but in some circumstances the Court can choose to waive this fee. The Supreme Court will review the record and issue a written decision, which is final.
Filing A Claim While Appealing
If you appeal a determination, make sure you continue to file a weekly claim certifications for each week you are fully/partially unemployed until a decision on your appeal has been made. Failure to file a weekly claim certification may result in a loss of benefits for the weeks not filed.
The Appeal Process
[The full text of the appeal process can be found in the UI Claimant Handbook]
Notice of Hearing
The Notice of Hearing before an Administrative Law Judge will provide you with important information about the time and date of the appeal hearing, which will be conducted by a telephone conference. Mail or FAX (802-828-4289) any documents you want to have considered as evidence in the hearing to the Appeals Office and, if the case involves your former employer, to that employer so they can be considered as part of the record. Do this immediately following receipt of the Notice of Hearing so the documents are received no less than 24 business hours before the hearing. If you do not send a copy to the employer, your exhibits will NOT be entered into the record, will not be considered in making the decision, and may not be available for use later in the appeal process.
NOTE: After receipt of the Notice of Hearing, you must provide the Appeals Office with a telephone number where you can be reached at the time of the hearing, even if you have previously supplied a telephone number. You will not be called if you do not supply a telephone number. The Notice of Hearing will instruct you as to how to provide your phone number to the Appeals Office.
Do I Need a Lawyer?
Hearings are designed to permit laypersons to represent themselves. If the issues are complex, if you expect the other party to be represented by an attorney, or if you think you may have difficulty presenting your case, you may wish to consult an attorney. You can also contact Vermont Legal Aid to see if they can provide legal assistance to you. If you are going to have an aĴorney, you should let the Appeals Office know as soon as possible to avoid scheduling delays. Hearings will not be postponed to allow a party to seek legal representation.
Evaluate and Prepare Your Evidence
The first level of appeal with the Administrative Law Judge is a de novo review, which means the judge reviews the case based solely on evidence presented in the hearing record. The judge is not bound by earlier findings or determinations made by the Department. Since this will be your ONLY opportunity to present your evidence, and further appeals only review testimony and other evidence introduced at this hearing, you should be prepared to participate in this process and to present your side of the story.
What Goes on at the Hearing Before an Administrative Law Judge?
The Administrative Law Judge will connect all the parties in a conference call and the hearing will be recorded. S/he will explain the process at the beginning of the hearing, decide which documents (exhibits) will be made part of the record, and then swear in the witnesses and take testimony from one person at a time. You will have the chance to cross examine the employer’s witnesses and ask any questions of any witness testifying for you. One participant for the employer will be able to cross examine you and your witnesses. The purpose of the hearing is to gather all the relevant information about why your employment ended. Usually, things that happened close to the time of separation and those that directly lead to it are the most relevant. If something is not relevant, the judge may stop the witness from testifying about it. When testifying, speak clearly and try to remain calm. The judge will ask questions to try to get all the information about the ending of your employment. The judge is not familiar with your former workplace so s/he may ask you to explain who people are or about the procedure for different tasks. Having a calendar handy may be helpful and you may want to take notes when the employer’s witnesses are testifying because you will not be allowed to interrupt them.
The Importance of Witnesses & Subpoenas
You must inform the Appeals Office in advance of the names and telephone numbers of witnesses whom you want to testify in the hearing. Make sure that your witnesses are willing to participate and that they will be available at the time of the hearing. If a witness is not available, you may obtain and submit a written statement from them. Such statements never carry the full weight of direct testimony at the hearing. If a witness whom you believe to be vital to your case refuses to testify, you may request that the Administrative Law Judge issue a subpoena. A subpoena request must be submitted in writing, in advance of the hearing date. The request must include a statement that the witness has been asked to testify but has refused. It must also explain why the witness’s testimony is essential and provide a physical address (not a P O Box) for each witness. A subpoena request may be granted or denied at the judge’s discretion.
Contact with the Administrative Law Judge Outside of the Hearing
The Administrative Law Judge generally will have no contact with you or any party outside of the hearing. This is to avoid the appearance of unfairness or of accepting evidence outside the hearing. Other members of the Appeals Office will advise or assist you with procedural questions. In the State of Vermont, appeal hearings are CONFIDENTIAL and are not open to the public.
Postponement of a Hearing
You should make every attempt to participate in the appeal hearing when scheduled. Either party may request a postponement, but the postponement must be for good cause, such as serious illness or injury, which is determined by the appeals representativewho makes the decision on a case-by-case basis. If you wish to have a postponement, you must call the Appeals Office to request one, as far in advance of the hearing date as possible.
Withdrawal of an Appeal
If you wish to withdraw your appeal, you must do so in writing. You should notify the Appeals Office as soon as possible prior to the date of the hearing. If the employer has filed the appeal, you cannot withdraw the appeal and the hearing will take place. If the appeal is withdrawn, the initial determination or decision becomes final and cannot be changed.
Vermont Department of Labor
U.I. Claim Appeals
P.O. Box 488
Montpelier, VT 05601-0488