An administrative appeal is heard by an administrative law judge (ALJ) within the Appeals Tribunal.”1  However, the agency may contract with the State’s Division of Administrative Law (DAL) to conduct your client’s hearing or hire an ALJ from elsewhere. After identifying the parties and the evidence, ALJs typically cover a predictable set of questions that depend on the issue noticed for hearing.

• 1La. R.S. 23:1628, et seq.

Telephone hearings are now the norm and have their pros and cons relative to in-person hearings. Your client has the right to request an in-person hearing, but such a request is likely to be denied given the agency’s tight budget and resistance to making exceptions. Support any request for an in-person hearing with evidence of a compelling reason. Moreover, missed ALJ hearings easily happen with telephone hearings. Your client can ask for rehearing, but the time to do so is shorter than the appeal period. If appealing, you can also ask for a remand for a new hearing.

Claimants’ right to a fair hearing is protected by federal and state law,1  and agency rules setting forth hearing procedures must be followed.2  The traditional elements of constitutional due process must also be provided. Your clients’ rights include the right to adequate notice of the issues, the right to view exhibits before the hearing, the right to subpoena witnesses and evidence, and the right to cross-examine adverse witnesses. You or your client should request a copy of the hearing office file before the hearing; it is free and will be e-mailed upon request. The agency isn’t currently required to mail administrative decisions to a legal representative.

The notice itself may raise due process concerns. Claimants often seek help with hearings at short notice because agency rules don’t require extensive advance notice. You can ask for a postponement and may need to in order to get time to gather and submit evidence for your client. In addition, notices don’t give much detail about the issues to be addressed at the hearing. Because adequate notice of the issue is constitutionally required (though a client may waive inadequacy of notice), lack of detail might give grounds for postponement or for evidentiary objections at the hearing. The ALJ is also precluded from addressing issues not contained in the notice of hearing.3

Additional challenges may arise through the conduct of the hearing itself. At the hearing, strict rules of evidence are not followed, but the ALJ’s decision must be based on sufficient competent evidence.4  Hearsay, though admissible, is not competent evidence.5  Hearsay may be used for corroboration. Make appropriate evidentiary objections on the record. An objection may remind an ALJ that certain evidence may not be relied on, and it should keep a court from finding that you have waived the objection.

Clients who handle hearings pro se often may make poor appeal records. If your client comes to you after the hearing but before further agency appeal or while that appeal is pending, you might be able to intercede in time to get a remand for new hearing. Focus on factors that indicating that your client likely did not have a fair hearing. Limited English proficiency is one such factor. Another might be client assertions that the ALJ excluded or prevented the presentation of relevant documents or witnesses or acted as an advocate for the employer by objecting to the claimant’s evidence or prompting the employer. Because this is a common occurrence, give credence to your client’s statements about such conduct. A detailed affidavit from your client could be good supporting evidence.

• 142 U.S.C. § 503(a)(3); La. R.S. 23:1629(B); see also Schexnider v. Blache, 504 So. 2d 864 (La. 1987).
• 2See LAC 40:IV:109, et seq.
• 3See Daniel v. Wal-Mart Assoc., Inc., 2003-0441 (La. App. 1 Cir. 12/31/03), 868 So. 2d 137; Barber v. Administrator, 95-770 (La. App. 3 Cir. 1995), 664 So. 2d 844; Banks v. Administrator, 393 So. 2d 696, 699 (La. 1981), Murray v. City of New Orleans, 517 So. 2d 1200 (La. App. 4 Cir. 1987); see also Randle v. Administrator, 499 So. 2d 488 (La. App. 2 Cir. 1986) (employer not entitled to remand to prove different reason for discharge).
• 4Banks, 393 So. 2d 696.
• 5DeJean v. Adm’r, Off. of Emp. Sec., 04-327 (La. App. 3 Cir. 9/29/04); 883 So. 2d 493; Schlesinger v. Administrator, 583 So. 2d 100 (La. App. 3 Cir. 1991); Cole Oil & Tire Co., Inc. v. Davis, 567 So. 2d 122 (La. App. 2 Cir. 1990); French v. Whitfield, 561 So. 2d 977 (La. App. 4 Cir. 1990) (direct contradictory testimony by employee cannot be overcome by hearsay evidence from another employee).

After an ALJ decision, claimants have two options: timely request reopening/new hearing or timely appeal to the Board of Review (BOR), a group of political appointees who may not even be lawyers.

Aggrieved employers can also appeal and sometimes send new evidence to supplement their case presented at hearing. Typically, they fail to copy the claimant, and the agency will not give your client a copy of the employer’s appeal or any new evidence turned in by the employer, unless you ask for it. In that situation, object that this violates the law and due process. If the BOR wants to consider new evidence, it is required to have a good reason for reopening (i.e., not just to give the employer a second chance to present a better case) and to have a new hearing for all parties to address this evidence. The BOR decision becomes the final agency decision, which may be appealed to state district court.

Untimely appeals are a common problem. Clients may fail to update their postal or e-mail address, and their mail may not be delivered even if they do. However, don’t give up just because your client has missed a deadline—determine where the fault lies. The agency’s position will usually be that peremption applies and that the right to appeal is extinguished at the end of the time period for appeal. However, courts have recognized that a claimant may rebut the presumption that a decision was actually mailed on the date it was said to have been mailed or present evidence that a notice was misleading or that the agency committed fraud or was otherwise at fault.1  Your client’s online claim records might show e-mailed notices bounced back or that the LWC has used an address gone stale because your client was no longer filing for benefits. There is no statutory obligation for an claimant to update an address if no active claim is being pursued.

If you are representing a client, make sure that appeals are filed timely, or, for best results, do it yourself. Often multiple appeals need filing at the same time, leading to the possibility of confusion or omission. This often happens when a client had multiple employers in the base period or when a client is hit with overpayment notices. There are various ways to file an appeal, the best being any way you can confirm receipt and timeliness.

• 1See, e.g., Bailey v. Cajun Insulation, 453 So. 2d 237, 241 (La. 1984); Jones v. Whitfield, 529 So. 2d 885 (La. App. 4 Cir. 1988); Doescher v. Administrator, 353 So. 2d 388 (La. App. 4 Cir. 1977); see also Harding v. Raising Canes USA L.L.C., 10-320 (La. App. 5 Cir. 11/23/10), 55 So. 3d 837; Hughes v. La. Power & Light Co., 98-1007 (La. App. 5 Cir. 3/10/99), 735 So. 2d 44; cf. Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009) (presumption of mailing requires sufficient evidence of record that letter actually mailed).