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EMPLOYMENT DEPARTMENT

 

DIVISION 40

APPEALS

Lower Appeals Procedure

471-040-0005

Request for Hearing

(1) A Request for hearing may be filed on forms provided by the Employment Department or similar offices in other states. Use of the form is not required provided the party specifically requests a hearing or otherwise expresses a present intent to appeal.

(2) A request for hearing on an administrative decision related to the payment or amount of unemployment insurance benefits may be filed:

(a) By mail, by fax or by telephone with any Employment Department Unemployment Insurance (UI) Center or UI Section in Oregon; or

(b) In person at any publicly accessible Employment Department office in Oregon; or

(c) By mail or fax with the Office of Administrative Hearings in Oregon.

(3) A request for hearing on an administrative decision related to unemployment insurance taxes pursuant to ORS 657.683, 657.663, 657.485, and 657.457, must be in writing and may be filed:

(a) By mail or by fax with any Employment Department UI Center or UI Tax Section office in Oregon; or

(b) In person at any publicly accessible Employment Department office in Oregon.

(c ) By e-mail to the Employment Department’s e-mail address as provided on the appealable document.

(d) Through the use of the Employment Department’s secured website as provided on the appealable document.

(4) The filing date for any request for hearing shall be determined as follows:

(a) When delivered in person to any Employment Department office in the state of Oregon, the date of delivery, as evidenced by the receipt date stamped or written by the agency employee who receives the document, shall be the date of filing.

(b) When filed by mail, the date of filing shall be the postmarked date affixed by the United States Postal Service or, in the absence of a postmarked date, the most probable date of mailing.

(c) When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, or improbable, in which case the fax receipt date stamped or written by the agency employee, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the most probable date of faxing shall be the date of filing.

(d) When filed by telephone, the date of filing shall be the date marked or stamped by the agency employee accepting the request for hearing.

(e) When filed by e-mail, the date of filing shall be the date of delivery, as evidenced by the receipt date on the Employment Department’s e-mail system, according to Pacific Time.

(f) When filed through the secured website, the date of filing shall be the date indicated in the confirmation e-mail sent to the requestor by the Employment Department, according to Pacific Time.

(g) When filed by any other means, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the employee of the Employment Department, Office of Administrative Hearings or Employment Appeals Board who receives the document.

(5) A request for hearing with respect to a claim for benefits shall not stay the payment of any benefits not placed in issue by the request for hearing, nor shall it stay an order previously entered allowing benefits.

(6) This rule is effective for all hearing requests filed after the effective date of this rule.

Stat. Auth.: ORS 183.335, 657.260, 657.265 - 657.270, 657.335, 657.610 & OL 1993, Ch. 729
Stats. Implemented: ORS 657.280, 657.610 & 657
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 5-1979, f. & ef. 8-27-79; ED 4-1994, f. & cert. ef. 9-2-94; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 7-2003, f. 4-25-03, cert. ef. 4-27-03; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 2-2005, f. 4-29-05, cert. ef. 5-1-05; ED 6-2005(Temp), f. 9-16-05, cert. ef. 9-18-05 thru 2-14-06; ED 8-2005, f. 12-23-05, cert. ef. 12-25-05; ED 1-2011(Temp), f. & cert. ef. 2-9-11 thru 7-31-11; ED 5-2011, f. & cert. ef. 7-14-11

471-040-0007

Contested Case Proceedings Interpretation for Limited English Proficient Persons

(1) This rule applies to the Employment Department's Unemployment Insurance contested case proceedings that require the services of an interpreter for a limited English proficient person who is a party or witness.

(2) For purposes of this rule:

(a) A "limited English proficient person" means a person who, by reason of place of birth, national origin, or culture, speaks a language other than English and does not speak English at all or with adequate ability to communicate effectively in the proceedings;

(b) A "certified interpreter" means an interpreter certified under ORS 45.291; and

(c) A "qualified interpreter" means a person who is not certified under ORS 45.291, but is readily able to communicate with the limited English proficient person and who can orally transfer the meaning of statements to and from English and the language spoken by the limited English proficient person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. A qualified interpreter does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness.

(3) In conducting contested case proceedings under this rule, the Employment Department will comply with the applicable provisions of ORS 45.272 to 45.292.

(4) If a limited English proficient person is a party or witness in a contested case aproceeding:

(a) The administrative law judge shall appoint a certified interpreter, if available, to interpret the proceedings to a limited English proficient party, to interpret the testimony of a limited English proficient party or witness, or to assist the administrative law judge in performing the duties of the administrative law judge.

(b) If a certified interpreter is unavailable, the administrative law judge shall appoint a qualified interpreter.

(c) Notwithstanding subsection (4)(a) of this rule, upon the request of a party or witness, the administrative law judge may appoint a qualified interpreter rather than a certified interpreter if the administrative law judge deems it appropriate under the circumstances.

(d) No fee shall be charged to any party or witness for the appointment and services of an interpreter in a contested case proceeding except as provided by ORS 45.275(5) and subsection (4)(g) of this rule.

(e) The administrative law judge may not appoint any person as an interpreter if the person has a conflict of interest with any of the parties or witnesses, is unable to understand or cannot be understood by the administrative law judge, party or witness, or is unable to work cooperatively with the administrative law judge, the person in need of an interpreter or the representative for that person. If a party or witness is dissatisfied with the interpreter selected by the administrative law judge, a substitute interpreter may be used as provided in ORS 45.275(5).

(f) If a party or witness is dissatisfied with the interpreter selected by the administrative law judge, the party or witness may use any certified interpreter, except that good cause must be shown for a substitution if the substitution will delay the proceeding. Good cause exists when information in the record establishes that the party or witness would be unable to effectively communicate without the assistance of a substitute interpreter.

(g) Fair compensation for the services of an interpreter shall be paid by the Employment Department except, when a substitute interpreter is used for reasons other than good cause, the party requesting the substitute shall bear any additional costs beyond the amount required to pay the original interpreter.

(5) In determining if a person is a qualified interpreter, the administrative law judge shall consider the following factors to ascertain whether the individual will be able to readily communicate with the limited English proficient person and orally translate the meaning of the statements made from English to the language spoken by the limited English proficient person:

(a) The person's native language;

(b) The number of years of education the person has in the language to be interpreted and the English language;

(c) The number of years of specialized training that has provided the person with the opportunity to learn and use the language to be interpreted and English;

(d) The amount of time the person has spent in countries where the language to be interpreted is the primary language;

(e) The number of years the person has spent acquiring the ability to read or write, or both, the language to be interpreted and the English language;

(f) The person's previous experience as an interpreter;

(g) The person's ability to interpret in a manner that conserves the meaning, tone, level, style, and register of the original statement, without additions or omissions;

(h) The person's ability to interpret the dialect, slang or specialized vocabulary of the original statement; and

(i) The person's knowledge of the Oregon Code of Professional Responsibility for Interpreters in Oregon Courts.

(6) In appointing an interpreter under this rule, the administrative law judge shall use a procedure and ask questions or make statements on the record substantially similar to the following:

(a) "Please state your name for the record."

(b) "Are you currently certified as an interpreter in Oregon in accordance with ORS 45.291 (in the language to be interpreted)?"

(c) "Is there any situation or relationship, including knowing any parties or witnesses in this case, that may be perceived by me, any of the parties, or any witnesses as a bias or conflict of interest in or with the parties or witnesses in this case?" If the prospective interpreter answers affirmatively, the administrative law judge shall inquire further to ascertain whether any disqualifying bias or conflict of interest exists with any of the parties or witnesses.

(d) "Are you able to understand me, the parties, and the witnesses in this proceeding?"

(e) "In your opinion, are the parties and witnesses able to understand you?"

(f) Directed at the parties and witnesses requiring the assistance of an interpreter: "Are you able to understand the interpreter?"

(g) "Are you able to work cooperatively with me and the person in need of an interpreter or counsel for that person?"

(h) If foregoing questions (b), (d), (e), (f), and (g) are answered affirmatively and the administrative law judge is satisfied that the prospective interpreter has no bias or conflict of interest under question (c), then the administrative law judge shall state: "I hereby appoint you as interpreter in this matter."

(i) If the prospective interpreter is not certified under ORS 45.291, then the administrative law judge shall proceed to determine whether the person is a qualified interpreter, using the criteria set forth in Section 5 of this rule. If a written statement of the prospective interpreter's qualifications is available, the administrative law judge shall enter that statement into the record. If a written statement of the prospective interpreter's qualifications is not available, the administrative law judge shall require the prospective interpreter to state his or her qualifications on the record. If the written statement is incomplete, or if the administrative law judge or a party questions the interpreter's qualifications, the administrative law judge shall require the prospective interpreter to supplement his or her written statement of qualifications by providing additional information regarding the prospective interpreter's qualifications on the record.

(j) If the administrative law judge determines that the person is a qualified interpreter, then the administrative law judge shall state on the record, "Based on your knowledge, skills, training, or education, I find that you are qualified to act as an interpreter in this matter." If the administrative law judge is not satisfied that the person is capable of serving as a qualified interpreter, the administrative law judge shall not appoint the person to serve in such capacity.

(k) The administrative law judge will then administer the oath or affirmation for interpreters who are not certified under ORS 45.291: "Under penalty of perjury, do you (swear) (affirm) that you will make a true and impartial interpretation of the proceedings in an understandable manner, using your best skills and judgment in accordance with the standards and ethics of the interpreter profession?"

(1) After receiving the qualified interpreter's oath or affirmation, the administrative law judge shall state: "I hereby appoint you as interpreter in this matter."

(m) On the record, the administrative law judge will then instruct any limited English proficient party or witnesses as follows: "If, at any time during the hearing, you do not understand something, or believe there are problems with the interpretation, you should indicate by interrupting and calling this to my attention."

(7) If the Employment Department is on notice that a limited English proficient person is in need of an interpreter, the Employment Department shall provide notice of the need for an interpreter to the Office of Administrative Hearings which shall schedule that person's contested case proceeding for which notice has been provided with an interpreter. If the Employment Department is not on notice that an interpreter is needed for a limited English proficient person, the limited English proficient person, or that person's representative, must notify the Office of Administrative Hearings of such need in advance of the contested case proceeding for which the interpreter is requested.

(a) If, at the time of or during the contested case proceeding, it becomes apparent that an interpreter is necessary for a full and fair inquiry, the administrative law judge shall arrange for an interpreter and may postpone the proceeding if necessary.

(b) The request for an interpreter may be made orally or in writing to the Office of Administrative Hearings. At the request of the Office of Administrative Hearings such notice may include:

(A) The name of the person needing an interpreter;

(B) Whether the person needing an interpreter is a party or witness in the proceeding; and

(C) The language to be interpreted.

(8) If a party is limited English proficient, English language exhibits are to be handled as follows:

(a) If the limited English proficient party confirms on the record that an interpreter already has interpreted an English language document for the party, the administrative law judge may receive the document into evidence without further interpretation of the document, unless necessary to assist a witness to provide relevant testimony.

(b) If the administrative law judge intends to receive into evidence an English language document that has not been previously interpreted under subsection (8)(a), the administrative law judge shall read the document and allow for contemporaneous interpretation. If the document is lengthy, the administrative law judge need not read into the record clearly irrelevant portions of the document, provided however that the administrative law judge shall summarize the remaining content of the document on the record.

(c) If, at the time of the proceeding, the administrative law judge does not rule on the admissibility of an offered English language document, then the administrative law judge shall read the offered document into the record and allow contemporaneous interpretation, subject to the exception in Section (b). The interpreter shall interpret all such offered documents or portions of such documents read into the record.

(d) If an offer of proof for excluded evidence includes an English language document, the interpreter shall interpret the document, subject to the exception in Section (b), for a limited English proficient party on the record, or off the record if so confirmed on the record by the limited English proficient party.

(e) Offered English language documents that the administrative law judge decides to exclude, in whole or in part, as irrelevant, immaterial, or unduly repetitious do not need to be interpreted. The administrative law judge shall orally summarize the contents of such offered but excluded documents, and the interpreter shall interpret that summary.

(9) A party may offer non-English language documents. If such a document is received into evidence, it shall be translated in writing or read into the record in English by the interpreter. Although the non-English language document will be part of the record, the English version of the document shall be the evidence in the case.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 45.272 - 292
Hist.: ED 4-2006, f. 3-3-06, cert. ef. 3-5-06

471-040-0008

Contested Case Proceedings Interpretation for Individuals with a Disability

(1) For purposes of this rule:

(a) An "assistive communication device" means any equipment designed to facilitate communication by an individual with a disability;

(b) An "individual with a disability" means a person who cannot readily understand the proceedings because of deafness or a physical hearing impairment, or cannot communicate in the proceedings because of a physical speaking impairment;

(c) A "qualified interpreter" for an individual with a disability means a person readily able to communicate with the individual with a disability, interpret the proceedings and accurately repeat and interpret the statements of the individual with a disability.

(2) If an individual with a disability is a party or witness in a contested case proceeding:

(a) The administrative law judge shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to, or to interpret the testimony of, the individual with a disability.

(b) No fee shall be charged to the individual with a disability for the appointment of an interpreter or use of an assistive communication device. No fee shall be charged to any person for the appointment of an interpreter or the use of an assistive communication device if appointment or use is made to determine whether the person is disabled for purposes of this rule.

(4) When an interpreter for an individual with a disability is appointed or an assistive communication device is made available under this rule:

(a) The administrative law judge shall appoint a qualified interpreter who is certified under ORS 45.291 if one is available unless, upon request of a party or witness, the administrative law judge deems it appropriate to appoint a qualified interpreter who is not so certified.

(b) The administrative law judge may not appoint any person as an interpreter if the person has a conflict of interest with any of the parties or witnesses, is unable to understand or cannot be understood by the administrative law judge, party or witness, or is unable to work cooperatively with the administrative law judge, the person in need of an interpreter or the representative for that person. If a party or witness is dissatisfied with the interpreter selected by administrative law judge, a substitute interpreter may be used as provided in ORS 45.275(5).

(c) If a party or witness is dissatisfied with the interpreter selected by the administrative law judge, the party or witness may use any certified interpreter except that good cause must be shown for a substitution if the substitution will delay the proceeding.

(d) Fair compensation for the services of an interpreter or the cost of an assistive communication device shall be paid by the agency except, when a substitute interpreter is used for reasons other than good cause, the party requesting the substitute shall bear any additional costs beyond the amount required to pay the original interpreter.

(5) The administrative law judge shall require any interpreter for a person with a disability to state the interpreter's name on the record and whether he or she is certified under ORS 45.291. If the interpreter is not certified under ORS 45.291, the interpreter must state or submit his or her qualifications on the record and must swear or affirm to make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter's best skills and judgment in accordance with the standards and ethics of the interpreter profession.

(6) A person requesting an interpreter for a person with a disability, or assistive communication device for an individual with a disability, must notify the administrative law judge as soon as possible, but no later than 14 calendar days before the proceeding, including the hearing or pre-hearing conference, for which the interpreter or device is requested.

(a) For good cause, the administrative law judge may waive the 14-day advance notice.

(b) The notice to the administrative law judge must include:

(A) The name of the person needing a qualified interpreter or assistive communication device;

(B) The person's status as a party or a witness in the proceeding; and

(C) If the request is in behalf of an individual with a disability, the nature and extent of the individual's physical hearing or speaking impairment, and the type of aural interpreter, or assistive communication device needed or preferred.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 45.272 - 292
Hist.: ED 4-2006, f. 3-3-06, cert. ef. 3-5-06

471-040-0010

Late Request for Hearing

(1)“Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(A) Failure to receive a document due to not notifying the Employment Department or Office of Administrative Hearings of an updated address while the person is claiming benefits or if the person knows, or reasonably should know, of a pending appeal;

(B) Not understanding the implications of a decision or notice when it is received.

(2) Notwithstanding section (1) of this rule, good cause for failing to file a timely request for hearing shall exist when the appellant provides satisfactory evidence that the Employment Department failed to follow its own policies with respect to providing service to a limited English proficient person, including the failure to communicate orally or in writing in a language that could be understood by the limited English proficient person upon gaining knowledge that the person needed or was entitled to such assistance.

(3) "A reasonable time," is seven days after the circumstances that prevented a timely filing ceased to exist.

(4) The appellant shall set forth the reason(s) for filing a late request for hearing in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for the late filing, and whether the request was filed within a reasonable time.

(5) Nothing in subsection (4) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

(6) This rule is effective for all hearing requests filed on or after August 26, 2011.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.875
Hist.: 1DE 150, f. & ef. 2-9-76; ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12; ED 1-2012, f. & cert. ef. 2-10-12

471-040-0015

Notice of Hearing

(1) To afford all parties a reasonable opportunity for a fair hearing, notice of hearing setting forth the time, date, place, and issue(s) in general shall be personally delivered or mailed at least five days in advance of the hearing to parties or their authorized agents at their last known address as shown by the record of the Director.

(2) The following parties shall be notified of a hearing when a request for hearing has been filed as provided by ORS 657.265 or 657.355:

(a) The Director;

(b) The claimant;

(c) The employing unit entitled to notice of the determination or decision under ORS 657.265; and any employing unit that could be expected to have information relating to the issue(s) of the hearing.

(3) In all other cases for which ORS Chapter 657 provides for hearing, parties who shall be notified of a hearing are:

(a) The Director; and

(b) The employer or employing unit which has filed a request or application for hearing.

(4) To best serve the parties involved, an administrative law judge may set a hearing at a convenient location or convenient locations.

(5) An administrative law judge may consolidate two or more hearings whenever it appears to the administrative law judge that such procedure will not unduly complicate the issues or jeopardize the rights of any of the parties.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.280 & 657.610
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 2-1980, f. & ef. 2-5-80; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0020

Subpoenas

(1) At the timely request of a party or on the administrative law judge's own initiative, an administrative law judge may issue a subpoena requiring a person to appear at a scheduled hearing for the purpose of giving testimony, or producing books, records, documents, or other physical evidence.

(2) A party that submits a request for subpoena should show:

(a) The name of the witness and the address where the witness can be served the subpoena;

(b) That the testimony of the person is material; and

(c) That the person will not voluntarily appear.

(3) If the requesting party wishes the witness to produce books, records, documents, or other physical evidence, the party should also show:

(a) The name or a detailed description of the specific books, records, documents, or other physical evidence the witness should bring to the hearing;

(b) That such evidence is material; and

(c) That such evidence is in the possession of the person who will not voluntarily appear and bring such evidence to the hearing.

(4) An administrative law judge may limit the number of subpoenas for witnesses material to the proof of any one issue at the hearing.

(5) Service of the subpoena upon the witness is the responsibility of the party requesting the subpoena.

(6) A witness who attends a hearing pursuant to subpoena issued under this rule is entitled to witness fees and mileage as provided in Rule 55 E. (1), Rules of Civil Procedure, and in ORS 44.415(2) for subpoenaed witnesses. Fees will be paid by check mailed subsequent to the conclusion of the hearing. The witness shall request payment of fees by completion of forms approved by the Employment Department. Payment of fees shall be made promptly upon receipt of the request for payment.

(7) Only witnesses, other than parties, who attend a hearing pursuant to subpoena issued under this rule may be paid or reimbursed by the Employment Department for witness fees and mileage.

(8) For the purposes of ORS 657.295, the amount approved by the Director that counsel or agent representing an individual who is claiming benefits may charge or receive for the services is no more than 25% of an individual’s benefits affected by the administrative decision on a disputed claim and no more than 25% of the maximum benefit amount payable as defined under 657.150(5).

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.610, 657.155, 657.260, 657.295 & 657.317
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 8-1981, f. & ef. 11-2-81; 1DE 1-1985, f. & ef. 11-18-85; ED 1-1991, f. & cert. ef. 4-1-91; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-040-0021

Postponement of Hearing

(1) At the request of a party or on the administrative law judge's own initiative, an administrative law judge may order, orally or in writing, that a hearing be postponed.

(2) A postponement may be granted by Office of Administrative Hearings staff at the request of a party if:

(a) The request is promptly made after the party becomes aware of the need for postponement; and

(b) The party has good cause, as stated in the request, for not attending the hearing at the time and date set.

(3) For the purpose of subsection (2)(b) of this rule, good cause exists when:

(a) The circumstances causing the request are beyond the reasonable control of the requesting party; and

(b) Failure to grant the postponement would result in undue hardship to the requesting party.

Stat. Auth.: ORS 183.335, 657.260, 657.265 - 657.270, 657.335, 657.610 & Ch. 729, OL 1993
Stats. Implemented: ORS 657.280 & ORS 657.610
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; ED 4-1994, f. & cert. ef. 9-2-94; ED 8-2003, f. 5-22-03, cert. ef. 5-25-03; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0023

Telephone Hearings

(1) Unless precluded by law, the Employment Department may, in its discretion, hold a hearing or portion of a hearing by telephone. Nothing in this rule precludes the Department from allowing some parties or witnesses to attend by telephone while others attend in person.

(2) The Department may direct that a hearing be held by telephone upon request or on its own motion.

(3) The Department shall make an audio or stenographic record of any telephone hearing.

(4) Prior to commencement of an evidentiary hearing that is held by telephone, each party and the Department shall provide to all other parties and to the Department copies of documentary evidence that it will seek to introduce into the record.

(5) Nothing in this rule precludes any party or the Department from seeking to introduce documentary evidence in addition to evidence described in section (4) during the telephone hearing and the presiding officer shall receive such evidence, subject to the applicable rules of evidence, if inclusion of the evidence in the record is necessary to conduct a full and fair hearing. If any evidence introduced during the hearing has not previously been provided to the Department and to the other parties, the hearing may be continued upon the request of any party or the Department for sufficient time to allow the party or the Department to obtain and review the evidence.

(6) The Department may delegate to the administrative law judge the discretion to rule on issues raised under this rule.

(7) As used in this rule, "telephone" means any two-way electronic communication device.

Stat. Auth.: ORS 657.266, 657.270, 657.317, 657.610, & 183.105(7)
Stats. Implemented: ORS 657.280 & 657.610
Hist.: 1DE 2-1980, f. & ef. 2-5-80; ED 2-1995, f. 8-29-95, cert. ef. 9-3-95; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0025

The Hearing

(1) The purpose of the hearing is to inquire fully into the matters at issue and to make a decision on the basis of the evidence adduced at the hearing.

(2) No administrative law judge shall participate in a hearing if the administrative law judge has any private interest in the outcome of the hearing or holds any bias or prejudice which would impair a fair and impartial hearing. All testimony at any hearing before an administrative law judge shall be under oath or affirmation.

(3) The administrative law judge shall conduct and control the hearing. The administrative law judge shall determine the order of the presentation of evidence, administer oaths, examine any witnesses, and may either on the administrative law judge's own or a party's request exclude witnesses from the hearing room. Parties, or their authorized agents, shall have the right to give testimony and to call and examine witnesses.

(4) Parties may appear on their own behalf or by authorized agent or counsel. The administrative law judge may require agents, other than counsel, when appearing without the party, to provide written authorization to appear for such party. When a party makes a general appearance at a hearing, defects in notice are waived.

(5) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude the administrative law judge from entering a decision unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of serious affairs shall be admissible. If a question of privilege arises, the administrative law judge shall fully and clearly inform the party of any rights as to such privilege and deal with procedural problems created by the existence of such issue in a way which protects the party's right to a fair hearing. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

(6) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except for notice taken, no other factual information or evidence shall be considered by the administrative law judge in making the decision. The experience, technical competence, and specialized knowledge of the administrative law judge may be utilized in the evaluation of the evidence presented. The administrative law judge may offer and receive evidence deemed relevant and essential by the administrative law judge to a fair disposition of the issues.

(7) The administrative law judge may take official notice of judicially cognizable facts. The administrative law judge may take notice of general, technical, or scientific facts within the administrative law judge's specialized knowledge and may take notice of documents, records, and forms retained within the Employment Department's files. The administrative law judge shall notify the parties of any official notice taken during the hearing or in the decision prior to such decision becoming final. Parties shall be afforded an opportunity to contest the material so noticed during the hearing or prior to the administrative law judge's decision becoming final.

(8) In any hearing, the administrative law judge shall render a decision on the issue and law involved as stated in the notice of hearing. The administrative law judge's jurisdiction and authority is confined solely to the issue(s) arising under the Employment Department Law. Subject to objection by any party, the administrative law judge may also hear and enter a decision on any issue not previously considered by the authorized representative of the Director and which arose during the hearing. The administrative law judge may continue the hearing or remand the matter to the authorized representative for consideration and action upon such issue(s) under the provisions of ORS 657.265. However, in no event shall the administrative law judge accept jurisdiction of a new issue and proceed with hearing on such issue when an interested party to such new issue has not waived right to notice.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.280, 657.610 & 657
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0026

Continuance of Hearing

(1) At the request of a party or on the administrative law judge's own initiative, an administrative law judge may order, orally or in writing, that a hearing be continued.

(2) A administrative law judge may grant a continuance at the request of a party if:

(a) The request is made prior to the issuance of the administrative law judge's decision; and

(b) The party has good cause, as stated in the request, for continuing the hearing.

(3) For the purpose of subsection (2)(b) of this rule, good cause exists when:

(a) The circumstances causing the request are beyond the reasonable control of the requesting party; and

(b) Failure to grant the continuance would result in undue hardship to the requesting party.

(4) An administrative law judge other than the one who presided at the first hearing may conduct a continued hearing.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.280, 657.610 & 657
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0030

Administrative Law Judge's Decision

(1) The administrative law judge shall promptly prepare and serve a written decision after the conclusion of the hearing.

(2) The administrative law judge's decision shall be based upon the evidence in the hearing record and upon any stipulated or officially noticed facts. Any findings of fact by the administrative law judge shall be based upon reliable, probative, and substantial evidence.

(3) The administrative law judge's decision shall be in an approved form and shall contain:

(a) A caption clearly identifying the parties;

(b) A statement of jurisdiction;

(c) A statement of the issues and law involved;

(d) Findings of fact;

(e) Conclusions based upon the findings of fact; or a statement adopting conclusions set forth in the appealed administrative decision; and

(f) A decision setting forth the action to be taken.

(4) Copies of the administrative law judge's decision shall be personally delivered or mailed to the parties, or their authorized agents, at their last address of record.

(5) An administrative law judge may issue an amended decision prior to the previous decision becoming final. The amended decision shall be served as required by these rules and shall be subject to review.

(6) In accordance with the provisions of subsection (4) of ORS 657.270, an application for review of a administrative law judge's decision may be filed by the Director or the Director's designee.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.280, 657.610 & 657.270(4)
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 5-1979, f. & ef. 8-27-79; 1DE 2-1982, f. & ef. 12-8-82; 1DE 2-1984, f. & ef. 9-28-84; ED 1-1987, f. & ef. 1-12-87; ED 1-1991, f. & cert. ef. 4-1-91; ED 5-1992, f. & cert. ef. 12-14-92; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0035

Dismissals of Requests for Hearing

(1) An administrative law judge may order that a request for hearing be dismissed upon request from the appellant to withdraw the request for hearing.

(2) An administrative law judge may order that a request for hearing be dismissed upon request of the Director or the Director's authorized representative after either one has:

(a) Issued a new or amended determination or decision that grants the appellant that which was placed in issue by the request for hearing; or

(b) Withdrawn or cancelled the determination or decision upon which the request for hearing was based.

(3) On the administrative law judge's own initiative, an administrative law judge may order that a request for hearing be dismissed if:

(a) The appellant fails to file the request for hearing within the time allowed by statute or rule;

(b) The appellant employer, under ORS 657.485, fails to set forth with the request for hearing the reason therefor;

(c) The appellant fails to appear at the hearing at the time and place stated in the notice of hearing;

(d) The request for hearing has been filed prior to the service of the decision or determination that is the subject of the request;

(e) The request for hearing is made by a person not entitled to a hearing on the merits or is made with respect to a determination or decision of the Director or authorized representative with respect to which there is no lawful authority to request a hearing.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.280, 657.610 & 657.485
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-040-0040

Reopening of a Hearing

(1) After service of an administrative law judge's written decision as set forth in ORS 657.270, an administrative law judge may reopen the hearing if the party:

(a) Requesting the reopening failed to appear at the hearing;

(b) Files in writing, within 20 days of the date of mailing of the hearing decision, a request to reopen; and

(c) Has good cause for failing to appear at the hearing.

(2) “Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(A) Failure to receive a document due to not notifying the Employment Department or Office of Administrative Hearings of an updated address while the person is claiming benefits or if the person knows, or reasonably should know, of a pending appeal;

(B) Not understanding the implications of a decision or notice when it is received.

(3) The party requesting reopening shall set forth the reason(s) for missing the hearing in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for failing to appear at the hearing.

(4) The administrative law judge's ruling on a request to reopen the hearing shall be in writing and mailed to the parties.

(5) The filing date for a request to reopen shall be determined under OAR 471-010-0040.

(6) The OAH will treat as a request to reopen the hearing any application for review that a party files with the Employment Appeals Board or the Employment Department, where the filing party failed to appear at the hearing that led to the decision on appeal, unless the applicant specifically states in the application that the applicant does not wish to have the case reopened. In the event that the OAH subsequently denies the request to reopen the hearing, it shall return the case to the Employment Appeals Board, which will then proceed to review the merits of the substantive decision. The original application for review shall serve as the basis for the Employment Appeals Board's review of the merits of that decision.

(7) Nothing in subsection (3) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

(8) This rule is effective for all requests to reopen filed after the effective date of this rule.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.280, 657.610 & 657
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 2-2004(Temp), f. 5-3-04, cert. ef. 5-4-04 thru 10-31-04; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12; ED 1-2012, f. & cert. ef. 2-10-12

471-040-0041

Late Request to Reopen

(1) The period within which a party may request reopening may be extended if the party requesting reopening:

(a) Has good cause for failing to request reopening within the time allowed; and

(b) Acts within a reasonable time.

(2) “Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(A) Failure to receive a document due to not notifying the Employment Department or Office of Administrative Hearings of an updated address while the person is claiming benefits or if the person knows, or reasonably should know, of a pending appeal;

(B) Not understanding the implications of a decision or notice when it is received.

(3) "A reasonable time," is seven days after the circumstances that prevented a timely filing ceased to exist.

(4) The party requesting reopening shall set forth the reason(s) for filing a late request to reopen in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for the late filing, and whether the party acted within a reasonable time.

(5) The filing date for a late request to reopen shall be determined under OAR 471-010-0040.

(6) Nothing in subsection (4) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

(7) The administrative law judge's decision on a late request to reopen shall be in writing and mailed to the parties.

(8) This rule is effective for all late requests to reopen filed after the effective date of this rule.

Stat. Auth.: ORS 657.270 & 657.875
Stats. Implemented: ORS 657.280, 657.610 & 657.875
Hist.: ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12; ED 1-2012, f. & cert. ef. 2-10-12

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