Oregon Unemployment Hearings and Appeals

by Joel Christiansen

screen-shot-2016-10-27-at-5-41-46-pmThis article summarizes Oregon’s unemployment appeal process. This information is based on my significant experience providing legal counsel to clients in these matters.

Should You Hire Counsel?

Most parties in Oregon unemployment matters are initially self-represented. Because Oregon applies a de novo (from new) standard of review in initial appeals of Oregon unemployment determinations, it rarely makes economic sense to hire an attorney until after the Oregon Employment Department has issued an Administrative Decision.

Attorney representation may be appropriate for appeals to: (1) the Oregon Office of Administrative Hearings via telephone hearing, and (2) the Employment Appeals Board via application for review and written argument. Involving an attorney is most common in cases involving contested issues related to alleged terminations for job-related misconduct, good cause for quitting, and failure to meet eligibility requirements (e.g., work search, available/able to work, etc.).

The cost to retain an attorney for an initial unemployment hearing should typically be $1,000 or less, which includes review of the appeal, filing paperwork, preparation for hearings, and representation at hearings. Additional fees apply for appeals to the Employment Appeals Board as well any any subsequent appeals to the Oregon appellate courts.

APPEAL 1: Office of Administrative Hearings

Parties have twenty (20) days after the Oregon Employment Department issues an Administrative Decision to request an appeal hearing through the Office of Administrative Hearings (OAH). The Administrative Decision includes a form that parties may mail or fax to the OAH to request a hearing. Parties who plan on retaining an attorney for an appeal hearing should attempt to do so before requesting the hearing, if possible.

The OAH sends notice of unemployment appeal hearings to parties and their representatives via mail in a document called a Notice of Hearing. Hearings are scheduled at the earliest available date. Most unemployment appeal hearings in Oregon happen within a couple weeks. However, it can take several weeks to receive a hearing date depending on the OAH caseload.

The Notice of Hearing contains all information concerning the hearing, including the date and time of the hearing, a call-in telephone number, and an access code. Any party that fails to call in at the time of a hearing may automatically lose the appeal.

OAH appeal hearings are conducted over the telephone by an Administrative Law Judge. Parties are allowed to represent themselves in these hearings. They may also have an attorney or representative. Each party involved in the hearing will have a chance to testify under oath, present written evidence, and question witnesses. The telephone hearing is usually the only opportunity parties will have to present evidence.

In misconduct cases, the employer has the burden of proof, meaning it must demonstrate with evidence that the employee engaged in job-related misconduct. Poor performance, lack of skills, and isolated instances of poor judgment are not misconduct. Employees have the burden of proof in cases addressing whether the employee had good reason for quitting. Good cause means that a reasonable person in the employee’s situation could not have reasonably continued working for the employer, which requires that he or she exhaust all reasonable alternatives to quitting.

ALJs typically issue decisions in a written Final Order that arrives in the mail within approximately a week of the hearing. The Final Order contains the ALJ’s findings of fact and legal conclusions. The Final Order is appealable to the Oregon Employment Appeals Board. 

APPEAL 2: Employment Appeals Board

To appeal an ALJ’s Final Order, a party or their representative must file an Application for Review to the Employment Appeals Board. The EAB’s review process is limited to reviewing the record from the OAH and written arguments from the parties. New evidence is usually not considered during an EAB review. In limited circumstances, the EAB may remand a matter for additional proceedings before an ALJ.

After submitting an Application for Review, the EAB will send the parties and their representative a document called an Acknowledgement of Receipt of Application for Review. Upon request from either party, the EAB will send a copy of a transcript of the OAH hearing. Parties then have 20 days from the date of the Acknowledgement to file written arguments. Written arguments must be mailed to each party and contain a certification indicating that was done.

The EAB will review the record and issue a Notice of Decision containing fact findings, conclusions, and reasons. Parties then have 20 days after the Decision to request reconsideration to correct errors of material fact or law. Requests for reconsideration must comply with technical requirements or the EAB will not consider them.

APPEAL 3: Oregon Appellate Courts

As a final measure, parties may appeal decisions to the Oregon courts of appeal. Oregon administrative rules require the EAB to send notice of appeal rights along with its Notice of Decision. This notice instructs parties how to seek court review. Appeals to the appellate courts are subject to the Oregon Rules of Appellate Procedure (ORAP) and proceed in a manner similar to any other civil appeal. Filing a court appeal requires payment of a filing fee and compliance with detailed rules.

Detailing the procedure of a court appeal is outside the scope of this article. However, parties should understand that (1) a majority of unemployment matters appealed to the appellate courts are affirmed without opinion (AWOP’ed), and (2) the cost of involving an attorney in the appeal process is often prohibitively expensive. However, when a decision is truly erroneous, parties may wish to explore this option.