Appeals
Board of Review Overview
The West Virginia Unemployment Compensation Board of Review (BOR) hears and decides appeals of unemployment compensation decisions made by unemployment deputies throughout the state. The BOR is completely separate from and makes its decisions totally independent of WorkForce West Virginia (WFWV). The BOR is a quasi-judicial (court-like) tribunal that is part of the executive branch of state government. The BOR is located within the Department of Commerce and WFWV for administrative support and budgetary purposes only. This independence eliminates the perception of unfairness and provides due process and impartiality to all parties in the way unemployment compensation appeals are administratively adjudicated.
Benefit Denials and Appeals
Claimants
If you have been denied unemployment benefits you have the right to file an appeal. Please keep in mind you may not be eligible for benefits if you quit or were fired for disciplinary reasons. If you feel you were separated from your employer through no fault of your own yet were denied benefits, you may file an appeal with your WorkForce WV local office within eight (8) calendar days of the mailing date on the Deputy’s Decision. To be considered timely, you must file your appeal by the appeal date listed on the Deputy’s Decision.
Throughout the appeal process, you should continue to file your weekly claim certifications, look for work, and keep records of your job search, just as you would if your application for benefits had been granted. If the Administrative Law Judge (ALJ) rules in your favor, and you are otherwise eligible for unemployment benefits, you will receive your benefits retroactively from when your application should have been accepted- but only if you’ve been following the usual rules to receive benefits.
Employers
If a prior employee is awarded unemployment benefits and you disagree with that decision, you have the right to file an appeal. You may file an appeal with the nearest WorkForce WV local office within eight (8) calendar days of the mailing date on the Deputy’s Decision. To be considered timely, you must file your appeal by the appeal date listed on the Deputy’s Decision.
Prepare for the ALJ Hearing
The purpose of an unemployment hearing is to decide whether unemployment benefits should be granted or denied. During an unemployment hearing, the ALJ will take testimony and other evidence, such as documents, from the parties and their witnesses. The ALJ will assist both parties by explaining the procedures and helping them present their cases. If you are confused at any time during the hearing, ask the ALJ for assistance. The ALJ will make their decision based solely on the evidence and testimony presented during the hearing. During the hearing, each party has the following rights:
- To testify on their own behalf;
All testimony is taken under oath and recorded.
- To Have relevant witnesses testify:
Witnesses should have firsthand knowledge of the issues involved.
If a witness will not attend a hearing voluntarily, the individual can be subpoenaed.
- To present relevant documents as evidence;
The ALJ will only have access to the same file that is mailed to you along with your Notice of Hearing. If there are additional documents that you want to be made part of the hearing record, it is your responsibility to provide copies of those documents.
Copies of any documents that you want to be made exhibits during the hearing must be provided to the BOR and to the other parties at least 48 hours prior to the hearing. If a subpoena is needed to secure documentary evidence, the written request must specifically describe the document(s), why it is important, and where it is located.
- To question opposing parties and witnesses;
- To examine all relevant documents submitted as evidence;
- To be represented by an attorney or other representation;
Interested parties may be represented by an attorney if they wish. Attorney fees are the responsibility of the party represented. For claimants who are represented by an attorney, the claimant’s attorney is required to submit their fees to the BOR and the BOR will review the amount the attorney charges you to ensure the fee is not excessive.
If you cannot afford an attorney, free or low-cost legal assistance may be available through your local Bar Association or Legal Services Organization. Attorneys who hold a license outside of the state of WV must abide by Supreme Court Rule 19 prior to the scheduled hearing. They must also enter a notice of appearance.
Scheduling an ALJ Hearing
After a request for an appeal is received, the BOR schedules a hearing and mails the claimant and employer a Notice of Hearing. The notice sets forth the time, date, and location of the hearing, issue(s) that will be addressed, and whether the ALJ will conduct the hearing by telephone or in-person. Read the Notice of Hearing carefully, as it will detail how your hearing will be conducted and will provide instructions you need to follow. For example, you must contact the BOR upon receipt of the Notice of Hearing or any time up to two (2) days prior to the hearing date to provide BOR with the phone number where the ALJ can reach you for the hearing.
Rescheduling an ALJ Hearing
If you have a significant conflict that cannot be rearranged or rescheduled without substantial inconvenience, such as a job interview, legal proceeding, illness, or death in the family, you may request the hearing to be rescheduled for another date. The request must be in writing and must include documentation to show good cause for the request, such as scheduling conflicts or prior court engagements, travel itineraries, or excuses signed by a physician or supervisor. These may be faxed to the BOR at 304-558-1363. Please be specific as to why you cannot appear for the hearing. Absent an emergency, a party that requests rescheduling must make their request at least 48 hours prior to the hearing. Once received, the continuance request will be reviewed and you will be contacted by a staff member of the BOR to let you know whether your continuance request was accepted or denied. If denied, the hearing is not continued and will go on as originally scheduled.
Relevant Documents
This appeal hearing may be your last opportunity to present your case, so be thoroughly prepared. The ALJ will only have access to the same file that is mailed to you along with your Notice of Hearing. If you have any additional documents to offer as evidence for the hearing, you must send a complete copy to the opposing party and the BOR at least 48 hours prior to the scheduled start of the hearing. Failing to submit copies to the BOR or the other party could result in the documents not being considered by the ALJ when making their decision.
ALJ Hearings
Most appeal hearings are scheduled to be conducted by telephone, for the convenience of all parties. However, a hearing may be scheduled in-person at the request of any party. To request an in-person hearing, you must contact the BOR at least 48 hours prior to the start of the scheduled hearing. If you request to appear in-person, expect additional delays in scheduling the hearing. Also note that your request to appear in-person does not necessarily compel the opposing party to appear in-person as well.
The requesting party of an in-person hearing will be required to show up to the in-person location they choose. The requesting party will not be allowed to request to appear by telephone once the hearing is scheduled as an in-person hearing at their request, unless there is an emergency, or a continuance occurs. The proceedings are recorded, and testimony is taken under oath. Be prepared to testify about the issue(s) stated on the Notice of Hearing. You will be allowed to testify on your own behalf, present witnesses, question the opposing party, and the opposing party’s witnesses. The ALJ may ask additional questions of you, your witnesses, the opposing party, and the opposing party’s witnesses. All parties will also be given the opportunity to present any written evidence and ask the ALJ for those documents to be included as exhibits to the hearing.
ALJ Hearings In-Person
You may bring one or more witnesses; however, your witness should be an eyewitness and have actual, direct, personal knowledge of the facts. Testimony from a witness with only secondhand knowledge will carry little to no weight with the ALJ.
For an in-person hearing only, written documentation or evidence does not have to be presented to the ALJ or other parties until the time of the in-person hearing. Bring three (3) copies of written exhibits in addition to your own copy, one for the ALJ and one for the other parties. Once presented, the ALJ will give each party an opportunity to review the evidence being submitted if all parties are present in-person at the hearing.
For in-person hearings, any party that did not request the in-person hearing may submit a request to participate by telephone in the hearing. To ensure the phone number is delivered to the ALJ for a person appearing telephonically in an in-person hearing, the parties are encouraged to make requests to participate by phone not less than two (2) days in advance of the hearing. Once a request to participate by telephone is received, it will be reviewed to determine if the requesting party has shown good cause for the request. Requests should include the reason a party is requesting to appear by telephone. If a party is fifty (50) miles or more away from a location, a request to appear by phone will be accepted without additional good cause needing to be shown. If the BOR grants a request that a party participate by phone for an in-person hearing, the telephonic participate waives the opportunity to review any exhibits offered as evidence during the in-person hearing.
You will be expected to appear at the address of the BOR location indicated on your Notice of Hearing. Please note that in-person hearings are only held in Charleston, WV or Fairmont, WV. Bring the Notice of Hearing with you and arrive before the hearing’s scheduled time. If you are not present on time, the ALJ is not required to wait for you before starting the hearing and can conduct the entire hearing without a party present. Failure to participate in a hearing may result in an adverse decision, including dismissal of a party’s appeal for their failure to appear and prosecute their appeal.
ALJ Hearings by Phone
Parties may participate in a telephonic hearing via conference call. At the scheduled hearing time, the ALJ will call the phone number you provided. Be prepared for a possible delay in the event that the ALJ has difficulty contacting all parties or in case the previous hearing is running slightly longer than usual. Please ensure your telephone line is free and any documents you require for the hearing are with you at that time. Please be in a location where you may minimize any background noise or distractions. Due to inconsistent service quality, the use of mobile devices is discouraged. If you do not answer the ALJ’s phone call, they will leave a message stating who they are and the purpose of the call. Approximately five (5) minutes later the ALJ will call the provided phone number a second time. If you fail to answer this second call the ALJ will leave a message stating that they are proceeding with the hearing without you. Failure to participate in a hearing may result in an adverse decision, including dismissal of a party’s appeal for their failure to appear and prosecute their appeal.
Again, for hearings by phone, read the Notice of Hearing carefully, as it will detail how your hearing will be conducted and will provide instructions you need to follow. For example, you must contact the BOR upon receipt of the Notice of Hearing or any time up to two (2) days prior to the hearing date to provide BOR with the phone number where the ALJ can reach you for the hearing. The hearing notice will also contain items you will need to know such as that the Board cannot accept phone numbers that require the ALJ to dial an extension. Additionally, due to the teleconferencing service being used for telephonic hearings, the phone number calling you for the hearing may appear to be out-of-state or a spam call, but it is actually the ALJ calling for your telephonic hearing. You need to answer the call from the ALJ, even if it appears to be spam or is from out of the area, in order to participate in the hearing.
Witnesses by Phone
You must submit contact information for any witnesses (name and telephone number) to the BOR no later than 48 hours prior to the scheduled start time of the hearing. It is your responsibility to have your witnesses ready for the hearing and to advise them to answer when the ALJ calls them for the hearing.
Incorrect Phone Number
Please ensure the phone number you provide to the BOR is correct. If you are the appealing party and provide an invalid phone number, the hearing will be dismissed, and you will have to wait on the written decision to be mailed to you before proceeding with next steps. If you are not the appealing party and you provide an incorrect phone number, you will lose the opportunity to present your case before the ALJ and a decision will be made without your testimony. Either way, you will have to wait on the written decision to be mailed to you before proceeding with next steps, such as filing an appeal of the ALJ’s decision to the Board of Review or requesting a remand.
Lower Authority Appeal- ALJ
An appeal from a Deputy’s Decision to an ALJ is the second level of decision making on an unemployment claim, also known as the lower authority. If a party does not agree with the agency’s initial determination, that party can file an appeal, and the ALJ will conduct a hearing. At that hearing, each party will be given the opportunity to testify under oath and present other evidence, such as relevant documents and to ask questions of the other party. Please note: This is the only opportunity during the appeal process where you will be able to provide evidence, witnesses, cross-examine the other party and their witnesses, and testify on your own behalf.
From the evidence presented, the ALJ will make a Findings of Fact. These findings represent what the ALJ believes happened based on the competent evidence the parties have provided. Competent evidence has weight: think about Lady Justice holding the scales and weighing the evidence.
The testimony of an eyewitness to the event for which a claimant was discharged is competent evidence. The testimony of someone who was not an eyewitness, someone without personal knowledge, is hearsay and weighs nothing. Obviously, the party who produces the most competent evidence will tip the scales in their favor and win the case.
The ALJ will issue a decision that will be mailed to all parties. If you disagree with the ALJ decision, you may file an appeal to the BOR within eight (8) calendar days of the mailing date on the ALJ decision. To be considered timely, you must file your appeal by the appeal date listed on the ALJ decision.
Board of Review
5707 MacCorkle Avenue, SE
Suite 500, Room 104
Charleston, WV 25304
Phone: 304-558-2636
Fax: 304-558-1363
Higher Authority Appeal- The Board of Review
The Board is an independent panel of three citizen members who are appointed by the Governor and confirmed by the Senate who serve finite terms. The Board is the third level of decision making on an unemployment claim, also known as the higher authority, and they hear and decide appeals of ALJ decisions.
When a decision is appealed to the Board, they will review the evidence previously presented to the ALJ, review the prior hearing transcript, and make a decision based on that information and any briefs or legal arguments submitted in advance by the parties acting pro se or by their counsel. The Board will issue a decision in writing that will be mailed to all interested parties. The Board may affirm, modify, or reverse the ALJ decision, or they may also remand the case back to the ALJ for another hearing.
If you disagree with the Board’s decision you may appeal it to the West Virginia Intermediate Court of Appeals within 30 days of the Board’s decision.