56. As an Advocate, What Do You Need to Know About the Hearing Process?

Unemployment hearings are conducted by a review examiner in DUA's Hearings Department. They are relatively informal and occur around a conference table in a small room. -- if in-person, or by phone or videoconferencing software. They are audio‑recorded and usually last about an hour but may run longer or be continued. If an interpreter is required, the hearings are scheduled for one and a half hours. If the hearing is to be continued, ask the review examiner to schedule a date for the continued hearing and request adequate time to finish the hearing. You can also request a recording of the first hearing, from the Hearings Department; however, due to the shortage of staff at DUA, be sure and do this quickly to allow the staff as much time as possible to process your request.

Review examiners ask an initial set of questions to determine the nature of the case. If the review examiner determines that it is a voluntary-quit case, the claimant will be questioned first and if the review examiner determines that it is a discharge case, the employer will be questioned first. Most review examiners ask questions first of each party, followed by a redirect by the claimant’s representative and cross‑examination by the other party’s representative. A few will allow the claimant’s representative to ask questions first.

The hearing is conducted in accordance with the standards set forth in the Massachusetts Administrative Procedure Act, G.L. c. 30A, and Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.02.

DUA more frequently conducts hearings by telephone (and does so in all one-party hearings), with the review examiner, claimant, and employer in separate locations. Under DUA’s Telephone Hearing procedures (adopted in response to the filing of Elliott v. King, Deputy Dir. of the Div. of Emp't & Training, Suffolk Superior Court, CA 97-5748-G (4/3/2000), a class action seeking declaratory and injunctive relief regarding the conduct of telephone hearings without any standards guiding the use of this type of hearing), these hearings are supposed to be limited to situations where the parties must travel more than 75 miles, where an accommodation is necessary for an individual with a disability, where there are safety or security concerns, or to expedite single-party hearings. DUA's telephonic hearing procedures are available at https://www.masslegalservices.org/content/dua-telephonic-hearing-procedures.

If both parties agree, DUA will allow one party to attend in person and another party to participate by telephone. You should encourage claimants to attend in person where possible.

Because this is an administrative hearing, the formal rules of evidence including the hearsay rule of evidence do not apply. The SJC has suggested that if the pertinent evidence before an administrative tribunal is exclusively hearsay, this cannot constitute substantial evidence sufficient to uphold the decision. Sinclair v. Dir. of the Div. of Emp't Sec., 331 Mass. 101, 103–04, 117 N.E.2d 164, 165–66 (1954). However, Sinclair was somewhat limited by Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 526, 517 N.E.2d 830 (1988), in which the court found that, in some circumstances, hearsay could constitute substantial evidence. See also, Edward E. v. Dep't of Soc. Serv., 42 Mass. App. Ct. 478, 480, 678 N.E.2d 163 (1997) (“The question before us is not whether the administrative decision was based exclusively upon uncorroborated hearsay but whether the hearsay presented at the fair hearing was reliable.”). Likewise, the SJC has emphasized the need for an adequate record, even where the hearing is being conducted under the informal rules of procedure. Costa v. Fall River House. Auth., 453 Mass. 614, 626, 903 N.E.2d 1098 (2009) ("reliance on hearsay that is anonymous, uncorroborated, or contradicted by other evidence will create particular risk of error").

And although the formal rules of evidence do not apply, a District Court has held that the parties and the hearing officer must still properly enter documentary evidence into the record. In Willis v. Dir., Dep't of Unemployment Assistance et al., Inc., Springfield District Court, CA 1823CV0694, Melikian, J. (9/21/18), the employer failed to produce the custody and control form with the results of the drug test that was the basis for the claimant’s discharge. Later in the hearing, the review examiner asked whether a potential witness the employer had declined to call, who was still in the waiting room, might have the document. The review examiner left the hearing room, returned with the drug test results, entered the document into the record on her own accord, and ruled against the claimant. On appeal, the District Court found that the review examiner had exceeded the authority granted to her under the Informal/Fair Hearing rules by considering evidence a party did not present at the hearing from an individual who did not testify and was not subject to cross examination. Concluding that the decision was made upon unlawful procedure affecting the claimant’s substantial rights, the Court reversed the decision and awarded UI. Similarly, the Board has held that the absence in the record of the employer’s video evidence or other first-hand account of the claimant’s purported theft rendered the review examiner’s finding of theft unsupported and without evidence of misconduct. The disqualification was reversed. BR-0014 2245 68 (6/30/15) (Key). 

One can argue that if the employer has the burden of proof—for example, in discharge cases—then the employer’s failure to bring available witnesses with firsthand knowledge means it has not met its evidentiary burden. (See Question 11 for discussion of burden of proof in discharge cases).

Although no longer its practice, in settlement of a Suffolk Superior Court action, DUA at one time agreed that all issues in an unemployment claim must be determined together with appeals proceeding together.  Zimmer v. Comm'r of the Dep't. of Emp. & Training, Suffolk Superior Court, CA 78566 (1989).