5.6.3 Due Process

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).