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LEGAL TOPICS
An Overview of the Unemployment Appeals Process

The chart below illustrates the various levels of appeals in Unemployment Insurance cases:

Appealing to the Appeal Tribunal

**REMEMBER: Even if you are denied benefits, you must continue to claim your benefits every week or two by phone or online. If you miss a week of claiming your benefits, you will not receive them even if you later win your appeal (unless you have a very compelling reason why you didn’t claim your benefits).
If you are found ineligible for benefits or are disqualified from benefits (whether fully or partially), you may file an appeal to the Appeal Tribunal. This is your first and probably your only opportunity for a hearing during the appeals process. This is where you will make your case and create your case record.  In the Appeal Tribunal phone hearing, you will have the opportunity to give testimony, question your former employer, and offer witnesses and evidence. If you lose your case at the Appeal Tribunal level and have to file a further appeal, your arguments in your written appeal will be based on the evidence and testimony presented during the Appeal Tribunal hearing.

Appeals from notices of determination must be made to the Appeal Tribunal within 10 days of the date the decision was mailed or within seven days of your receipt of the determination. Instructions for appealing the determination are written on the upper right-hand corner of the Notice of Determination.

You may file your appeal by mail, fax, or through the online unemployment system. In your letter of appeal, state that you disagree with the determination and briefly explain why.  There are no magic words for this. Be sure to include your name, Social Security number, and address on your appeal, and don’t forget to sign and date your letter of appeal. Always keep a copy for your records. Also, if your appeal is late, explain why it is late. If you do not show “good cause” for a late appeal, the Appeal Tribunal may reject it without ever hearing your testimony about your separation from work. Appeals from initial determinations should be sent to the Appeal Tribunal:

Appeal Tribunal
Department of Labor and Workforce Development
P.O. Box 936
Trenton, NJ 08625-0936
Phone: 609-292-2669
Fax: 609-292-2438

Shortly after you send your letter of appeal to the Appeal Tribunal, you should receive a “Notice of Receipt of Appeal.” This notice simply confirms that the Appeal Tribunal received your letter of appeal and that the appeal is being processed. If you do not receive such a notice within two weeks of sending your appeal letter, call the Appeal Tribunal (609-292-2669) to check on the status of your appeal. 

Approximately two weeks after filing your letter of appeal, you will receive a Notice of Telephone Hearing from the Appeal Tribunal. (Almost all Appeal Tribunal hearings are phone hearings. If you need an in-person hearing, you must specifically request that from the Appeal Tribunal). If you do not receive the Notice of Hearing at least five days in advance, you have the right to ask that the hearing be rescheduled for a later time. You can also request an adjournment if you are unable to participate in the hearing on the scheduled date, if you need more time to obtain legal advice, or if a key witness is unavailable on that date.  To request an adjournment, call the office of the appeals examiner listed on your hearing notice at least one day before the hearing.  The Appeal Tribunal will likely ask you to fax a request for the adjournment. 

How will the Appeal Tribunal hearing be conducted?

Your Appeal Tribunal hearing will be conducted by phone by an appeals examiner.  The Appeal Tribunal sent both you and your former employer a hearing notice because the employer is a party to your unemployment claim.  A representative of the employer has the right to participate in your phone hearing, but they may choose not to.  You likely will not know whether the employer is present for the hearing until the hearing begins. 

Once all parties are on the telephone, the Appeals Examiner will identify the parties, recite the issues in question, and summarize the hearing procedure. The examiner will also announce that the hearing is being recorded. This fact is important because the recording will become the written transcript of the hearing. A transcript is a document that states word for word what each person says during the hearing. This transcript is used if you have to appeal your case to the Superior Court, Appellate Division.

Generally, if you are the person who filed the appeal, the Appeals Examiner will take your testimony first. take your testimony first.   The examiner will swear you in and ask you to promise to tell the truth. The examiner will then ask you questions about the issues listed on your hearing notice (whether you voluntarily quit or were terminated, why your appeal was filed late, etc.)  After the examiner has finished her questioning, she will ask you for any additional testimony you feel is relevant. This is your opportunity to offer information that was not covered by the examiner’s questions. The employer or their representative will then have an opportunity to ask you questions. 

If you have witnesses to support your testimony, they will testify next. They will be sworn in, the examiner will ask them questions, and then you can ask any additional questions you may have. You would do this to make sure your witnesses are able to fully explain and support your side of the story. 

Next, the examiner will ask the employer (and the employer’s witnesses) questions and give them the opportunity to offer relevant information. After the employer’s testimony, you will have a chance to ask the employer questions. This is an opportunity for you to challenge what the employer has said, but it must be done in the form of questions. The process then repeats for any witnesses the employer might have, except that the employer or the employer’s attorney may also question the employer or witness. 

The Appeals Examiner will then give you an opportunity to offer rebuttal testimony—testimony to respond to what the employer and/or the employer’s witnesses have said. This is your opportunity to correct any misinformation that the employer gave in their testimony.  When all the testimony is complete, you may make a closing statement to summarize why the Appeal Tribunal should find you entitled to benefits. The employer may also offer a closing statement.  A closing argument is not necessary but can be helpful to highlight a particular issue (see below for an example of a closing argument). 

What should I do to prepare before my Appeal Tribunal hearing?

Preparing for your hearing is very important. If you lose your case in the Appeal Tribunal and have to appeal to the Board of Review (or, later, to the Superior Court Appellate Division), your appeal will be based largely on what was said and produced during the Appeal Tribunal hearing. Remember, this is probably your only opportunity to have a full hearing. You cannot introduce new evidence or testimony (except in very limited circumstances) after your Appeal Tribunal hearing. Nor can you go back and change what you or your witnesses said during the hearing. Adequate preparation will ensure that you testify thoroughly and address all the issues in question during your hearing. Taking time to prepare increases the odds of a successful appeal.

Requesting records

Most likely, you are appealing to the Appeal Tribunal because you disagree with something your former employer said, either verbally or in writing, about you or your work. To prepare for your hearing, you will want to know exactly what your former employer told the NJDOL about the circumstances surrounding your separation from work so you can prepare to address it in the hearing. For example, if you were found to be disqualified from unemployment benefits for misconduct, it would be helpful to know exactly what your employer told the NJDOL you did wrong.  To hear what your employer told the NJDOL deputy in the fact-finding interview (the claims examiner interview in your case), you may request a copy of the interview recording (in the form of a CD). You may do so by calling the Unemployment Customer Service Unit at 609-292-1803 or 609-984-2296.  You may also request a copy of the recording by faxing a request to E. Gerena in the Unemployment Customer Service Unit at 609-633-2884.

It is also possible that you are now appealing because your employer wrote something to the NJDOL that resulted in your disqualification from benefits. In that case, you will want to see exactly what the employer wrote. You may request a copy of all the documents in your case file to see exactly what the employer said. Similarly, if you are appealing because you disagree with something the NJDOL has done, such as a miscalculation of your base year income, requesting a copy of your case file will show you the data on which the NJDOL based its calculations so you can contest them during the hearing. 

To request a copy of your unemployment case file (including documents and a recording of the deputy/claims examiner interview), fill out an Open Public Records Act (OPRA) request online. Go to “state request form” and choose “Labor” and then “Division of Unemployment Insurance” from the pull-down menus.  Then, fill out the form online and be sure to click “submit” at the bottom.  You should receive a copy of your case file within approximately ten days. If you do not receive a timely response to your request, you may contact the Appeals Examiner (the phone number is listed on the hearing notice) and request an adjournment so that you have more time to review your case file before the hearing.

Subpoenaing Records

If there are certain documents that would help your case (e.g., a letter in your personnel file or time records), but only your former employer has them, you may ask the Appeal Tribunal to subpoena (demand) the documents for the hearing.  To do that, write a brief letter to the Appeal Tribunal describing the document(s) you need, explaining why you need it and can’t get it without a subpoena, stating where the document may be found, and requesting that the Appeal Tribunal subpoena the document. Include the address where the subpoena is to be served. Fax or mail the letter to the Appeal Tribunal as soon after filing your appeal as possible. If you wait until you get the Notice of Hearing to ask the Appeal Tribunal to subpoena documents, your hearing may be delayed.

NOTE: If you request that the Appeal Tribunal subpoena an important document and your request is denied, be sure to explain during the hearing: why you needed that document, how it would have helped your case, when and how you requested the subpoena, and why the request was denied. Then, if the Appeal Tribunal denies you unemployment benefits, the failure to grant the subpoena request may be grounds for an appeal.

How should I prepare to testify at my Appeal Tribunal hearing?

There are two parts to what you will say during the hearing. One is your testimony about the facts of the case – why you are no longer working at your last job. The other is presenting your argument about why the law supports your side of the case. This next section will address the first part, your testimony.

The first step in preparing to testify is making sure you understand the issues that will be discussed in your hearing.  Your hearing notice will say, “The issue(s) involved are” and list one or more issues (e.g. timeliness of appeal, voluntary quit, misconduct). The issues listed on your notice are the only issues that should be discussed in your hearing. 

Next, look at what the law says regarding those issues. Knowing the law will help you to explain to the Appeals Examiner why the determination of the deputy was wrong (or right) and why you are entitled to benefits. Make notes about what you want to say. Also, think about what the employer has said or will say. If your employer is likely going to say something that will harm your case, it may be helpful for you to address it before the employer does. List the facts and arguments you need to make based on the law. Think about how to present your case in the best light. Many people get nervous and forget some of the things they want to say when they testify.

Notes will remind you of the things you want to say, and you can check them off as you give your testimony. Don’t forget to include a list of the documents you submitted to the Appeal Tribunal so that you can reference them during the hearing (if you don’t reference them, they won’t be included in your case record). 

Some things to remember while testifying:

  • You are sworn to tell the truth. If you do not tell the truth and that comes to light during the hearing, then nothing you say later will be believed.
  • Prove only what you need to prove. Think about what the law says you need to show in order to get unemployment benefits. The Notice of Determination tells you the legal and factual reason you were denied benefits, so use this to build your argument. Why is it wrong? Decide what you need to tell the Appeals Examiner. Say what you need to say, and leave out everything else. You may have a lot to say about your former employer, but only discuss those facts about why you are no longer working – keep your testimony clear and focused. 
  • Do not try to answer a question you cannot answer. If you do not understand a question, say that you do not understand. If you do not know the answer to a question, say that you do not know. If you can’t remember something, say that you cannot remember. You may be asked about things that happened a long time ago. You can use your best recollection, but qualify it by saying that it was a long time ago.
  • Once you answer a question, stop. Don’t feel that you have to keep talking just because the examiner waits before asking you another question. Answer directly and clearly, and then wait for the next question. 
  • Be calm and polite. Do not get angry. If something upsets you, take a deep breath and stay calm.  Correct an incorrect statement calmly when it is your turn to speak.  Remember, there is an assessment being made about credibility – this means the examiner is trying to determine who should be believed where there is a case involving conflicting stories.  If you sound angry and resentful, that  will not help your case.   Don’t give the examiner a reason to find against you.
  • Be respectful and patient, but make sure you say everything that you want to say.  Remember, if you don’t say it during the hearing, you may not be able to argue that point later on. 

How should I prepare to question the employer?

You will have an opportunity to question your employer (or employer’s representative). You do not have to question them. It is your choice. This is an opportunity to put the employer on the spot and challenge their version of the facts, but don’t expect the employer to say exactly what you want them to say. Think about how the employer will respond to your questions as you prepare them. Say, for example, your attendance at work is at issue and your employer claims you missed a day of work when, in fact, your supervisor had previously approved the absence. If you ask, “Why did you lie and say it wasn’t an excused absence when it was?” the employer will likely respond, “I didn’t.” That is not helpful to you. Instead ask, “Did you claim that I had an unexcused absence on X date?” Response: “Yes. That is what my notes say.”  You: “I have here a note signed by my supervisor that says I would have to miss work on X date.  Have you seen this before?” Response: “No.” You: “I would like to enter this note into evidence.” (The Examiner will say, “I will enter the note dated X into evidence as claimant’s exhibit C-1”) Now you have proven that the absence was authorized and that you did not miss work without permission. 

Sometimes an employer or their representative will testify without having any direct knowledge of your work or the circumstances surrounding your separation from work. Hearsay statements (statements made by someone who is not present during the hearing) are allowed, but they must be supported by credible information. If an employer or their representative does not have direct knowledge of the circumstances surrounding your separation from work, ask them where they are getting their facts from. Make them prove that they are relying on accurate information.  Ask for evidence to support their allegations. If they are claiming that you violated company policy, ask for a copy of the policy, and ask for proof that you were made aware of that policy (if you were not made aware of it). Again, although hearsay is allowed, Appeal Tribunal decisions cannot be based on hearsay alone. So if the employer (or a witness) says something that is hearsay, say “I object. That is hearsay.” That way, your objection will be documented, and you can refer to your objection in your appeal, if necessary.

An increasingly common trend in unemployment appeals is for employers to pay third party agents to represent them in unemployment appeals. Employers hire representatives in an attempt to win unemployment cases and thereby reduce their tax liability (the fewer employees collecting unemployment, the fewer taxes the employer has to pay). 

A third-party representative can ask questions and make a closing statement on behalf of the employer, but they cannot testify for the employer. If, in the course of your hearing, a third party representative without any direct knowledge of the facts attempts to testify for the employer, interrupt with an objection that they shouldn’t be allowed to testify. 

Can I have a witness testify in my Appeal Tribunal hearing? 

Yes.  All parties can have witnesses at the hearing. Witnesses should be able to testify about the facts from their own personal knowledge. Be sure to ask your witness ahead of time what he or she will say at the hearing. Sometimes people think that it is improper to discuss testimony before the hearing, but that is not true. You cannot instruct a witness about precisely what to say, but you need to know what the person would say. If what they have to say would not be helpful, do not call that person as a witness!

Help prepare your witnesses for questions that the employer or the Appeals Examiner may ask. Because you know what happened, you know what is likely to be asked. Witnesses must tell the truth, but it is helpful for them to have thought about the issues in advance so that they can answer accurately.

If you know a witness whose testimony would be helpful to you but who won’t participate in the hearing voluntarily, you can request that the Appeal Tribunal subpoena the witness. To do that, fax or mail a letter to the Appeals Examiner and explain why you need the particular witness(es) to testify. Be sure to include the witness’s contact information.

To get testimony from witnesses who will not come and whom you don’t want to subpoena, ask them to sign a certification. A certification is a written statement, signed under oath, that says what the witness knows to be true.  It is best to have the certification notarized, but if that’s not possible, a signed letter will do. Be aware, though, that the Appeals Examiner is likely to give more weight to witnesses who appear by phone than to written testimony, and more weight to sworn written testimony than to a regular letter. 

How can I introduce documents into evidence during my Appeal Tribunal hearing?

Wherever possible, it is helpful to have documents to support your case. Written documents that support your version of the facts strengthen your credibility and can serve as a roadmap when the facts are confusing. Such documents can be work records, letters, emails, photos, timesheets, phone records – any documents that will help prove your case. They can also be documents you created yourself, such as a timeline of events or a list of your work responsibilities. If the facts of your case are complicated, creating a visual reference can help the Appeals Examiner to better understand your story. Of course, the employer will have the opportunity to challenge the authenticity or credibility of any document you submit, so be prepared to state why the documents are reliable. If you have more than one document, it is a good idea to title each document – placing the title in bold at the top of the document. This will help when it comes time to review the evidence. It is especially important when conducting hearings over the phone.

During the hearing, as you are giving your testimony or questioning the employer or a witness, you must call attention to the particular document that you want to discuss. For example, if there is a question about whether you were late for work, you would state, “I would like to refer you to the document entitled ‘Jean’s timesheet for September 6, 2011,’ which I faxed to the Appeal Tribunal on September 24, 2011. According to this document, I arrived for work at 8:23 a.m. Please enter this document into the record.” Only by directly addressing the document during the hearing will it be considered as evidence and made a part of your case record. If you don’t mention the document during your hearing, the Appeals Examiner may not consider it in making their decision. 

You must mail or fax your documents to the Appeals Examiner listed on your hearing notice before the hearing. You must also provide copies of the documents to your former employer even if you think they already have them. During the hearing, you may only reference documents that you submitted beforehand. However, if you realize during the hearing that a particular document will be helpful, you should explain to the Examiner why the document is important and request permission to fax it to both the Examiner and employer within a day or two after the hearing.  

Will I have a chance to make a final argument to the Appeal Tribunal?

At the end of your hearing, you will have an opportunity to make a closing statement.  A closing statement is a brief summary of what you would like the Appeal Tribunal to decide and why. A closing statement is not necessary, but it can be helpful. It is an opportunity for you to explain exactly why the examiner should decide in your favor. To make a closing statement, summarize the facts that make you eligible for benefits and explain how your facts meet the law’s requirements for being entitled to benefits (or why your facts do not meet the law’s definition of a disqualification).

Example: “My employer terminated me for leaving a file box in the conference room. The NJDOL deputy disqualified me from benefits for eight weeks for engaging in misconduct. As I testified, I left the file box in the conference room because I thought that’s where it belonged. I didn’t realize that I was supposed to lock it in the file room. I never intended to break any rule at work. The law says that, in order to be misconduct, I have to have knowingly and willingly broken my employer’s rule or policy. My mistake was an innocent one. No one ever told me the policy on storage keeping, and it’s not written in our handbook. I have never been written up or had any previous issues at work. Therefore, I should not be disqualified from receiving unemployment benefits. Thank you.”


Can I have an interpreter for my Appeal Tribunal hearing?

It is crucial that you understand everything that is said in the hearing.  Even if you are comfortable speaking English, you should request an interpreter unless you are absolutely fluent. You may use limited English in your everyday transactions or at work, but a formal hearing in which legal rights are at stake requires that you understand everything – including legal terms. So do not hesitate to request an interpreter if you need one! It is your right.

To request an interpreter for the hearing, notify the Appeal Tribunal in advance, when you call to register for the hearing. If you are unable to notify the Appeal Tribunal in advance, tell the Appeals Examiner that you need an interpreter at the beginning of the hearing. The NJDOL will get an interpreter on the telephone to assist. Be aware that sometimes the interpreter will speak a different dialect than you or the phone connection may not be clear. Also, interpreters sometimes summarize what is said instead of interpreting word for word. It is very important that the interpreter interpret all of the questions and all of the answers word for word. The examiner should make an instruction to the interpreter at the beginning of the hearing, requesting that they interpret word for work. If this is not done, you have the right to request that such an instruction be made. 

If you are having trouble hearing or understanding the interpreter or you think there may be another issue with the interpretation, you must speak up and say so. If you don’t speak up, you will not be able to argue later on (in an appeal) that you didn’t understand what was being said during the hearing. On the other hand, if you do speak up, the Appeal Tribunal can get a different interpreter, give specific instructions to the interpreter, or try to improve the phone connection. So don’t be afraid to tell the examiner if you don’t understand. If they deny your request for a new interpreter and you lose your case, you may have grounds to appeal. 

What will happen after my Appeal Tribunal hearing?

The Appeals Examiner will send you a written decision shortly after the hearing – usually within a week.  Your former employer will receive a copy, too. If you or your former employer disagrees with the decision, you may appeal to the Board of Review within 20 days of the mailing date on the Appeal Tribunal decision.

Appealing to the Board of Review

If you disagree with the decision of the Appeal Tribunal, you have the right to file a written appeal within 20 days of the date of the decision (unless you can demonstrate “good cause” for a late appeal). Your employer also has the right to appeal. 

Appeals from Appeal Tribunal decisions are made to the Board of Review. Like the Appeal Tribunal, the Board of Review is an entity within the NJDOL that reviews unemployment appeals. However, unlike the Appeal Tribunal, the Board of Review generally only analyzes appeals on the existing record (the testimony and evidence presented at the Appeal Tribunal hearing). The Board of Review reviews each party’s written arguments and generally issues written decisions without conducting any additional hearing. The Board of Review can agree with, reverse, or modify Appeal Tribunal decisions. The Board of Review may also send the matter back to the Appeal Tribunal for a new hearing if there are questions that must be answered before it can make a decision. 

Appeals to the Board of Review must demonstrate why the Appeal Tribunal’s decision was wrong, based on the information presented during the Appeal Tribunal hearing. The Board will read the written arguments and review the tape recording from the Appeal Tribunal hearing to decide whether or not it agrees with the Appeal Tribunal’s decision. It will not consider evidence or testimony that was not raised during the Appeal Tribunal hearing unless you (or your employer) have a good reason for not bringing it up before. Unless you (or your employer) demonstrate a good reason for not raising a particular issue or not introducing a particular piece of evidence during the Appeal Tribunal hearing, the Board will only review the testimony and evidence presented during your Appeal Tribunal hearing.

If your employer appeals

If your employer files a timely appeal from an Appeal Tribunal decision, you will receive a notice from the Board of Review stating that the employer has filed an appeal. It will also state that you have the right to file your own letter opposing the employer’s appeal.  It is your decision whether or not to submit a written argument in response to your employer’s appeal. You don’t have to submit anything to the Board of Review if your employer appeals, but it generally a good idea  to write a letter explaining why the Appeal Tribunal’s decision was correct and why the Board of Review should affirm (or confirm) the Appeal Tribunal’s original decision. 

If your employer appeals and the Board fails to send you a copy of the employer’s letter of appeal, contact the Board (in writing, preferably) to request a copy of the employer’s letter of appeal. That way, you can see exactly why your employer disagrees with the Appeal Tribunal’s decision, and you can respond appropriately. When you receive a copy of the employer’s letter of appeal, check the date to make sure that the appeal was filed within 20 days of the Appeal Tribunal’s decision. Also, check to make sure that the employer is not attempting to introduce new testimony or evidence that they could have submitted at the Appeal Tribunal hearing. If the appeal is late or if the employer attempts to introduce new testimony or evidence, point that out in your written response and say that that is not permitted by the law.

Your appeal to the Board of Review

The reasons you disagree with the Appeal Tribunal may determine how you proceed with your appeal to the Board.  Below are three different options for appeals to the Board of Review:

Cases where you think the Appeal Tribunal got the facts wrong:

If you think that the Appeal Tribunal got the facts of your case wrong (or that it based its decision on a misreading of the facts), you will want to point the Board to the exact testimony from the Appeal Tribunal hearing to prove your argument. In order to do this, you will want to obtain a copy of your Appeal Tribunal hearing tape. To do this, within 20 days of the Appeal Tribunal’s decision, write a letter to the Board of Review saying that you wish to appeal the Appeal Tribunal’s decision, that you would like to request a copy of the “record” in your case, including the hearing tape, and that you are requesting permission to submit your written argument within 14 days (or whatever reasonable amount of time you want to request) of receiving your case record from the Board. Be sure to include all of your identifying information (name, social security number, case docket number, address, date, etc.) and keep a copy for your records.  Note that the Board of Review may charge $15 for copies of hearing tapes. If you cannot afford the $15 fee, explain in your letter requesting a copy of the record that you are facing financial hardship and are unable to pay the fee. 

In response to your letter of appeal, you will receive a “receipt of notice of appeal” as well as a copy of the hearing CD and your case record (if you request them). Once you receive the Appeal Tribunal hearing CD from the Board of Review, listen to the whole CD and take notes on the key testimony, jotting down the exact time corresponding to those key statements. Note that the CDs will only play on a computer – not in a stereo.  

If you are arguing that the Appeal Tribunal got the facts wrong, you must point the Board of Review to the precise testimony that supports your argument. To do this, pinpoint the exact testimony in the CD, write out – word for word – the testimony that supports your argument, and include a citation at the end of the sentence or paragraph so that the Board can go back to the CD and verify that what you wrote is accurate. For example, you might write: 

“The Appeal Tribunal was wrong in finding that I took off from work without permission. During the Appeal Tribunal hearing, my employer said that ‘Mary had permission from her supervisor to take off from June 1 to June 6, 2011.’ (5:21)  Therefore, the Appeal Tribunal should not have disqualified me for misconduct for an unauthorized absence.”  

Note that in the sample argument above, the (5:21) indicates that the previous sentence, beginning “Mary had permission…” was said by the employer at 5 minutes and 21 seconds into the hearing. When you listen to the CD on the computer, you will see a digital clock that runs throughout the recording. 

Cases where you think the Appeal Tribunal got the law wrong:

If you agree with the Appeal Tribunal’s summary of the facts but feel that the Appeals Examiner misapplied the law, you may choose to handle your appeal a bit differently. In this instance, you may not need to request the Appeal Tribunal hearing CD because both you and the Appeal Tribunal examiner agree on the facts and what was said during the hearing. However, it is generally a good idea to request a copy of the record in your case to ensure that you are aware of all the documents and information on which the Appeal Tribunal based its decision. If you choose not to request a copy of the record in your case, you should file your entire written argument within 20 days of the Appeal Tribunal’s decision. 

If you disagree with the Appeal Tribunal’s application of the law, you will want to write: 1) what the Appeal Tribunal found; 2) what the law actually says; and 3) why the facts of your case require a legal conclusion different from the Appeal Tribunal’s conclusion (in other words, why the Appeal Tribunal was mistaken). Your argument will be a lot stronger if you can cite to a specific statute (law) and/or regulation that supports your case. Here is a sample argument demonstrating that the Appeal Tribunal misapplied the law:

“The Appeal Tribunal disqualified me from receiving any unemployment benefits because it found I engaged in misconduct when I violated the employer’s policy. N.J.A.C. 12;17-2.1.  The employer’s policy says that employees will be disciplined for arriving more than 5 minutes late to work.  I was fired for arriving only 3 minutes late to work on two occasions.  Therefore, I didn’t violate the employer’s policy.   Therefore, the Appeal Tribunal was wrong in finding that I engaged in misconduct, and its decision should be reversed.”

Don’t be intimidated by legal citations (like N.J.A.C. 12:17-2.1 in the example above)! This manual provides links to the appropriate citations on various unemployment laws and regulations, but if you don’t include the citation or cite a law/regulation incorrectly, don’t worry. The most important part is getting the substance of the law or regulation right. 

In case you were wondering:

“N.J.S.A.” stands for “New Jersey Statutes Annotated.”  A statute is a law.  The numbers - like “43:21-5” - tell you where in the law this particular statute is found.

“N.J.A.C.” stands for “New Jersey Administrative Code.”  Administrative codes are also known as regulations, and they are the rules that the State agency – here, the New Jersey Department of Labor – makes. Regulations often explain how the laws should be implemented. While laws are often broad (and sometimes vague), regulations offer details about the law and explain how the State agencies must apply the law.


Cases where you think the Appeal Tribunal got the facts AND law wrong:

If you believe that the Appeal Tribunal misinterpreted the facts of the case and applied the law incorrectly, it’s generally helpful to get a copy of your case record so that you can refer the Board of Review to specific testimony and evidence from your Appeal Tribunal hearing. In that case, as described above, you would have to – within 20 days of the mailing of the Appeal Tribunal decision – write to the Board of Review, say you want to appeal, request a copy of your record, and request permission to submit your written argument within a reasonable amount of time (usually about 2 weeks) after you receive the hearing CD/case record. 

Tips for Board of Review appeals:

  • Remember that your arguments must be based on testimony or evidence from the Appeal Tribunal hearing. If you want to introduce new testimony or evidence to the Board of Review in your appeal, you must explain why it’s important and why you didn’t provide it before.

  • If you believe that language problems in your Appeal Tribunal hearing resulted in a bad decision, explain that in your appeal to the Board of Review. 
     
  • If you requested and were denied the opportunity to call a witness or subpoena documents in the Appeal Tribunal, explain that in your appeal to the Board of Review.  

  • Review! Review! Review! In addition to rereading your letter of appeal several times yourself, it may be helpful to have someone else look at it to ensure that your arguments are as clear and strong as they can be. 

After you file your appeal

The Board of Review usually takes about two months to decide cases.  Generally, the Board expedites cases only if the person making the appeal submits an eviction notice, but it is possible that the Board would make an exception in other situations of extreme hardship. If waiting two months for a decision will cause you to suffer extreme hardship, call and/or write a letter to the Board explaining your situation and requesting that they speed up the decision in your case. 

Requests for Reopening/Reconsideration

If you disagree with the Board of Review’s decision, you may ask the Board to reopen your case and reconsider its decision before you appeal to the Appellate Division of the Superior Court of New Jersey. (N.J.A.C. 1:12-18.4). A request for reopening must be made within 10 days of the mailing of the Board of Review’s decision. To request a reopening/reconsideration of the matter, send or fax a letter to the Board of Review (be sure to include your name, social security number, docket number, date, and signature) explaining in detail why its decision was wrong and why it should reconsider its decision. At the top of your letter, write “Request for Reopening/Reconsideration.” 

The Board may grant your request for reopening by remanding (sending it back) to the Appeal Tribunal for a new hearing or changing its prior decision. If it does not grant your request for reopening, it will issue a decision stating that, and you will then have the opportunity to appeal to the Appellate Division of the Superior Court within 45 days if you want to challenge the Board’s decision. [If you do not hear back from the Board of Review within 20 days of the date you submitted your request to reopen, you should assume that your request has not been granted, and you should proceed with your appeal to the Appellate Division.]

Appealing to the Superior Court of New Jersey, Appellate Division

If you disagree with the Board of Review’s decision, you may appeal to the New Jersey Superior Court, Appellate Division (“Appellate Division”), within 45 days of the date of mailing of the Board of Review’s decision. The Appellate Division can decide in your favor, decide in the Board of Review’s favor, or send the case back (“remand”) to the Board of Review with instructions for additional action on your case (like a new hearing) – or a combination of these things. 

Filing an appeal from a Board of Review decision takes your case out of the New Jersey Department of Labor and into the New Jersey state court system (in the appeals section, the “Appellate Division”). Here, you are arguing (in writing) that the Board of Review’s decision was wrong.  The case is now you (the “appellant”) versus the Board of Review (the “respondent”) and your former employer.  The Board of Review will be represented by the New Jersey Attorney General’s office. If you have filed the appeal to the Appellate Division, your former employer will usually choose to remain out of the picture at this stage. That is because the Board of Review decided in the employer’s favor and will defend its decision, which supports the employer’s position. So even though your former employer must be provided with copies of all the arguments and documents in the appeal, it probably will not play an active role in your appeal. 

Your appeal will be decided by a panel of state court judges. Unless you want to argue your case in court, most cases will be decided based only on the written arguments (or “briefs”) you submit; you won’t have to appear in court.  Since the case is now in the state court system, you must follow very strict, precise procedures for filing your appeal (the Court will send you instructions once you file your Notice of Appeal). Filing an appeal in the Appellate Division is a very different process from your previous appeals, which were handled by the NJDOL. If you don’t follow the Court’s instructions or timelines properly, your appeal may not be heard.  However, since it can be a complicated process for people representing themselves, there are many “self-help” resources available to assist you (see below), and you will be assigned an Appellate Division case manager who can answer your questions about the process of appealing to the Appellate Division. 

Filing your Notice of Appeal

If you wish to file an appeal to the Appellate Division, you must file a “Notice of Appeal” within 45 days of the mailing date of the Board of Review’s decision. The Notice of Appeal is a specific form that you must fill out and mail to the Appellate Division, along with a copy of the Board of Review’s decision. You must also send a copy of the Notice of Appeal to your former employer as well as the NJ Attorney General’s office. For Notice of Appeal and instructions, see the Board of Review Pro Se Kit (from the New Jersey Judiciary). As always, read the instructions carefully. If you do not follow the instructions properly, you risk having your appeal tossed out without the Court making a decision on whether or not the Board’s decision was correct. Always keep a copy of everything you submit to or receive from the court.

After you file your Notice of Appeal

Once you file your Notice of Appeal, the Appellate Division will send you a confirmation that your appeal has been received.  This document tells you your case/docket number and the name and phone number of your case manager. Your case manager can answer any questions you have about procedure (deadlines, forms, etc.). The document also states (among other things) that you must inform the Appellate Division if you do not receive the transcript from your Appeal Tribunal hearing within 35 days. 

Within 1-2 months after filing your Notice of Appeal, you should receive a copy of your Appeal Tribunal hearing transcript. The transcript is a print out – word for word – of what occurred at your Appeal Tribunal hearing. The transcript will be provided to you by the Attorney General’s office, which represents the Board of Review.  Read the transcript carefully to make sure there are no mistakes. If there are, and they are significant, you may make a motion to have the transcript corrected (see instructions for filing a motion below). 

Generally, your written argument (or “brief”) is due 45 days after you receive the transcript. Sometimes, however, the Scheduling Order you receive will give you a deadline later than 45 days from the date you receive the transcript. The Scheduling Order will tell you when your brief is due, when the Deputy Attorney General’s (“DAG”) response to your brief is due (30 days after you file your brief), and when your reply to the Deputy Attorney General’s response is due (10 days after you receive the DAG’s response). 

At some point after you file your Notice of Appeal and before your brief is due, you will receive a “Statement of Items Comprising the Record” from the DAG. This document will list everything that the DAG and Board of Review consider to be part of the record in your case. For example, the Statement of Items will list the Appeal Tribunal transcript, any documents you or your employer submitted to the Appeal Tribunal, letters to the NJDOL, etc. Read this list carefully! If items that were entered into evidence are not included in the Statement of Items, talk to the DAG to amend the Statement of Items. Make sure you have copies of everything listed and referred to in the case. If you do not have a particular exhibit, request a copy from the DAG. If you believe that there are other documents that should be considered in your appeal to the Appellate Division, you must make a motion to have them included (see instructions for making a motion in the Court’s self-help/pro se manual: Board of Review Pro Se Kit). If a document is not included in that list, it will not be considered in your appeal. 

Writing Your Brief

The written brief is your opportunity to argue that the Board of Review’s decision was wrong and must be reversed. A brief to the court is a formal document that must follow a particular format. As you are drafting your brief, pay close attention to the Appellate Division’s instructions for writing your brief. (All of the instructions for writing your brief are contained in the Court’s pro se/self-help manual Board of Review Pro Se Kit.) If you do not follow the instructions, your appeal may be rejected. 

As you draft your brief, remember that your arguments must be based on information and evidence that is already in your case record.  Everything that you write in the “Factual Statement” must be based on information previously provided to the Appeal Tribunal (whether in testimony or evidence). You cannot introduce new testimony or evidence at this point unless you get permission from the Court (by making a motion to amend the record and demonstrating a good reason why you couldn’t have provided the information before). 

Once you file your brief with the Court (and serve copies on the Deputy Attorney General and your former employer), the Board (represented by the Deputy Attorney General) will file a response to your arguments within 30 days. After you receive their response, you will have 10 days to file a reply.  The reply brief is an opportunity for you to address the DAG’s arguments. You do not need to file a reply – it’s your decision whether to file one or not. Note that if you want an oral argument in this case – if you want the opportunity to go before a panel of judges and make your case in person – you must request the opportunity to do that from the Court.  To do that, write a letter to the Appellate Division as soon as possible (if you wait too long, it may not be granted) stating that you request  oral argument in your case.

Once all these papers are filed, the Court will schedule the oral argument or make its decision. From beginning to end (the Court’s decision), your appeal in the Appellate Division can take six months to a year.

Due Process Protections in Unemployment

Unemployment benefits are property interests that fall under Fifth Amendment protection. Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992); Garzon v. Bd. of Review, 370 N.J. Super. 1 (App. Div. 2004); Newman v. Bd. of Review, 434 N.J. Super. 483 (App. Div. 2014); Alicea v. Bd. of Review, (432 N.J. Super. 347, 350 (App. Div. 2013).    Therefore, parties to an unemployment claim are protected by due process rights.  Id.  The New Jersey Supreme Court set forth the “minimum requirements of due process” in Nicoletta v. North Jersey District Water Supply Comm’n, 77 N.J. 145, 165 (1978).  They include:  written notice of the claimed violations; disclosure of evidence upon which the decision is based; the opportunity to be heard in person and to present witnesses and documentary evidence; the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation; a “neutral and detached” hearing body; and a written statement by the factfinders as to the evidence relied on and reasons for the decision. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972)). 

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9/5/2018
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