How to Prepare for an Unemployment (DUA) Hearing in Massachusetts, as a Claimant
Consider whether to hire an attorney.In general, any claimant stands a better chance at an unemployment hearing with an attorney. An unrepresented claimant facing a represented employer may have a significantly reduced chance of winning. In addition, an attorney may be instrumental in laying the proper groundwork for a further appeal, if the initial hearing is lost. Many cases that could have been won on appeal are made much more difficult by a layperson's lack of expertise at the initial hearing.
Any claimant who intends to retain an attorney should do so as soon as possible, to give the best chance for adequate preparation at the hearing. You can browse attorney listings on this site, or call the Boston Bar Association or Massachusetts Bar Association for statewide referrals. Note that even for a claimant who cannot afford to hire an attorney, it is still worthwhile to seek a free consultation with one. Bring to your meeting all information gathered in the steps below.
Demand a complete copy of employment records.You should immediately demand a full copy of all documentation regarding the employment, pursuant to Massachusetts General Laws Chapter 149, Section 52C. The request should specifically demand, but not be limited to: all contractual, hiring, disciplinary, promotion/advancement, review, and any and all other records pertaining to the employment at, and separation from, the employer, wherever they are located, and whether or not they are located in separate physical or electronic files within the company. This includes copies of all employment handbooks and other records containing the rules of employment.
This demand, if possible, should be both hand-delivered and sent by mail with delivery confirmation to prove receipt. The employer has up to five business days to satisfy the demand, so it should be made immediately.
Preserve information held by your employer.If you still have access to any benefits or other websites, email systems, etc. which contain information regarding your employment, access them immediately and print out whatever you can, with particular attention to anything referencing terms or rules of employment (disciplinary, termination, etc.) or the circumstances of your leaving employment.
Request third-party documentation.If there are any outside sources of information that would help at the hearing, such as a doctor's office or hospital, union records, etc. request any appropriate documentation from those sources immediately. Request that the records be certified, as long as you can still get the records in time. Ask to have your records request expedited, explaining that you need them for an unemployment hearing; this will also decrease the chance that you'll be charged for the records.
Copy your file at the DUA.Go in person to the DUA office which is currently holding your file and request a copy of everything in the file. This may contain some very helpful information, such as what the employer stated to the JSR (phone rep for the DUA) during their phone interview, misstatements by the JSR of what you said on the phone that will need to be addressed, extra information faxed or mailed in by the employer, etc. This information may greatly help an attorney assess your case, and will be helpful in any event when preparing for your hearing.
Organize other information in outline and timeline form.Particularly if your case is complex, prepare a timeline or log of events listing everything of note that has occurred in your case. This will assist greatly in your first meeting with an attorney, and will help you keep your own thoughts organized. If anything happens in your case going forward, add it to the log. Be specific; for instance, if you speak to someone, list the date, time, person, and substance of the conversation.
Outline or diagram any other complex information that will help in preparing your case. If you are going unrepresented to your hearing, and there are many people involved in the case which may confuse the DUA examiner, consider preparing a table of characters involved in the case for easy reference.
Line up witnesses.If there are any potential witnesses that would be able to help at the hearing, list their full contact info on paper and what they know. Contact them as soon as possible in order to see whether they would be willing to appear for you (after speaking to an attorney if you are able to hire one).
Prepare witness questions and answers.Prepare a list of everyone that you expect may testify at the hearing, including your witnesses, potential employer witnesses, and yourself. For each witness, prepare a list of questions you plan to ask, in a logical order. Try to anticipate what opposing witnesses' likely answers will be, with possible follow-up questions by you. For yourself, try to anticipate what the employer's representative will ask you at the hearing, and write down the best answers to such questions. Remember that you cannot anticipate everything that will occur at the hearing, but preparation will still help enormously.
Keep quiet about plans to hire counsel.Don't tell anyone who still works at the employer, or who might refer information back to the employer, that you are thinking of hiring an attorney. If your employer doesn't know, it increases the chance they will not hire an attorney, possibly giving you an edge at the hearing.
Conduct the hearing.On the day of the hearing, arrive early to avoid any chance of missing the hearing due to traffic, and to give a chance to review the DUA's file one more time for recent submissions. You should be dressed appropriately, and should have with you three (3) copies of all documents which you intend to submit to the hearing examiner; offer these when the documents become relevant during the hearing, giving one copy to the DUA examiner and one to the employer's representative. Bring your previously-prepared outlines and timelines as well, and offer to submit them to the examiner as exhibits.
When questioned, think before answering, and give straightforward answers. When given a chance to cross examine witnesses for the employer, take that chance if there is anything that they said that you found questionable, and make sure to take copious notes whenever any witness is speaking to refer back to later. Don't interrupt when someone else is talking. Be polite and direct.
If you lose, submit a timely appeal.If you lost at your hearing and want help with further appeals, you must IMMEDIATELY contact an attorney to give enough time to prepare an appeal. If you intend to submit your own pro se (self-represented) appeal, make sure to do so within the time limite noted on the hearing examiner's opinion received from the DUA.
If you have lost in front of the DUA Board of Review, the next step is to file for judicial review of agency action in the District Court. This is tough for an unassisted layperson to do, so legal assistance is advised.
If you lose and don't intend to appeal further, but can't repay the amount of past overpayments, consider submitting a DUA Waiver of Recovery of Overpayment Request (form below).
Additional resources provided by the author
- 430 Code of Mass. Regs. (DUA regulations)
- 801 Code of Mass. Regs. (fair hearing rules applicable to DUA hearings)
- Department of Unemployment Assistance (DUA) website
- DUA Service Representatives' Handbook (2009 Ed.)
- DUA Waiver of Recovery of Overpayment Request
- Employee demand for employment records
- How to file for unemployment benefits
- Massachusetts General Laws, Chapter 151A (state unemployment statutory law)
- Massachusetts Law About Unemployment
- MassLegalHelp, Employment and Unemployment