If you lose your job, you may qualify for unemployment benefits. You must apply for benefits at your local office of New Hampshire Employment Security. Employment Security will give you a written decision about your eligibility. If you are denied, you have a right to appeal the decision.

This pamphlet explains the appeal process. It contains general information about how to pursue your claim. While it will not answer all questions or guarantee victory, the pamphlet provides background information which is intended to help you understand the unemployment system and your legal rights.

If you become unemployed, it is important to file your claim for unemployment benefits. Do not wait. You can lose benefits if you delay filing your claim. Do not assume you will be ineligible. You may be found eligible. Also, many cases may be won on appeal.

INITIAL DECISION – THE CERTIFYING OFFICER

If you become unemployed, you must report to Employment Security and apply for benefits. Employment Security will review your past earnings to see if you qualify for benefits. Make sure they have correct information about all your earnings, since it can affect your eligibility and the amount of your benefits.

2. Reason for Job Loss

If you meet the earnings test, Employment Security will investigate the details of your job loss. They will interview you and explore the facts of your case. They will also talk with your employer. This fact-finding will form the basis for an initial decision on your claim made by an Employment Security Certifying Officer.

The reason why you left your job is very important. Your eligibility may well depend on how Employment Security sees this event. The most common reasons for Employment Security to deny benefits involve cases in which the worker is accused of voluntarily quitting his/her job or committing misconduct at work.

VOLUNTARY QUIT

Employment Security will generally find you ineligible for benefits if you voluntarily quit your job unless you left your job for good cause "attributable to the employer". To demonstrate why a quit was "attributable to the employer", you must explain the specific reasons you were forced to leave employment. Examples include the employer making your work situation unreasonably difficult, work conditions harmful to your health or safety, or negative changes in terms and conditions of your work, such as a substantial reduction in pay or number of hours.

If you have to leave your job due to domestic violence, Employment Security should not deny your claim. They will investigate the facts so, it is important to let Employment Security know about the abuse. If you have other "good cause" for leaving your job, it is important to explain your reasons. If you believe you were racially or sexually harassed or discriminated against by your employer, Employment Security could find you had good cause to quit.

It is common for employers and workers to disagree about the circumstances leading to the end of employment. Your ability to present the facts of what happened can make a critical difference in whether you win or lose your claim.

MISCONDUCT

Employment Security may deny your claim for benefits if you were fired for misconduct on the job. Misconduct can include committing grossly negligent acts, insubordination, coming to work under the influence of alcohol or drugs, or fighting with co-workers.

In New Hampshire, it usually takes more than isolated or unintentional instances of poor conduct for a finding of misconduct. Recurring careless or negligent acts do add up to misconduct. A single act of misconduct may be enough for a finding of misconduct if it is a deliberate violation of a company rule reasonably designed to protect the legitimate business interests of the employer.

Again, each case is different and is based on the facts presented to Employment Security. You have the right to disagree with the initial decision made by the certifying officer. You may appeal the decision and request a hearing. Do not assume the certifying officer's decision is always correct. The certifying officer may deny benefits if there is any reason to do so. That is why it is important to appeal and to use your right to have a hearing.

DISCHARGE BY THE EMPLOYER

Employment Security will usually allow claims for workers who were laid off or discharged for reasons other than misconduct. This includes the following situations:

¨ The employer fired you and there is no charge of misconduct, or

¨ The employer lays you off because s/he is going out of business

or reducing the number of employees, or

¨ The employer fired you for reasons: (a) not related to your job, or

(b) because you were unable to do the job the way your employer

wanted it done, or

¨ The employer denies you the chance to return to your job after

an absence due to illness or approved leave of absence.

THE APPEAL TRIBUNAL

If you appeal the certifying officer's decision, you can request a hearing on the merits of your case. Employment Security will then schedule and hold an informal, administrative hearing on your case. The hearing is before Employment Security's Appeal Tribunal.

The Appeal Tribunal offers an important opportunity for claimants. The hearing officer, called the Appeal Tribunal Chairperson, is not bound by the certifying officer's decision and will take a fresh look at your case. S/he will make a new decision based on testimony and evidence presented at the hearing. The hearing is tape-recorded. All the information you present at the Appeal Tribunal is the basis for any further appeal, so doing a good job at this stage is very important.

You have the right to bring an attorney to the hearing. You may want to retain a lawyer or paralegal to represent your interests if you are unsure about how well you can present your case or if the case is complex or difficult. New Hampshire Legal Assistance (NHLA) may be able to help with legal representation at no charge or give you legal advice about your case. You should promptly contact NHLA if you are denied benefits.

At the Appeal Tribunal hearing, you should bring all witnesses who can help your case. For example, if you are accused of misconduct, it is helpful to bring former co-workers who can tell your side of the story. You also have the right to request and require witnesses to attend the hearing. You should contact the Appeal Tribunal Chairperson well before the hearing if you want to require a witness to testify.

It is very important to bring any documents that can support your case. If you are accused of misconduct, it may be helpful to present job performance evaluations if they help your claim. If the employer gave you written warnings, you must be prepared to disprove or explain the allegations. You may want to introduce the employer's work rules if the employer failed to follow proper rules. Think creatively about what points you want to make and try to use witnesses and documents to support your side.

You have a right to cross-examine any witnesses who testify against you. If the employer calls a witness to testify about events the witness did not personally witness, make sure to object to "hearsay" evidence. While the formal rules of evidence do not apply at an Appeal Tribunal hearing, that does not mean anything goes. The process must be fair.

The Appeal Tribunal will issue a written decision after your hearing. Read it carefully. Either the employer or worker may appeal an unfavorable decision. If you believe there is a legal error or if the decision lacks support on the facts, pinpoint the errors as specifically as possible.

FURTHER APPEALS

If you lose at the Appeal Tribunal, you have the right to appeal further. You have 14 days to appeal in writing to the Commissioner of Employment Security to ask for a "reopening" within 14 days of the date the Appeal Tribunal decision was mailed to you. In your "reopening" request to the Commissioner, you should explain the mistakes you believe the Appeal Tribunal made.

If the Commissioner denies reopening, you have 14 days to appeal in writing to the Appellate Board. At the Appellate Board, you will have a chance to explain why the decisions on your case have been incorrect. You may make an oral argument before the three-person Appellate Board as well as present a written argument. If the Appellate Board denies your appeal, you must ask the Board in writing to reconsider if you want to appeal further. If you lose at all these stages, you still have a right to appeal to the New Hampshire Supreme Court.

Don't be discouraged if you are denied benefits at first. The appeal system can work. You can sometimes get the decision overturned. While your case is being appealed, you must continue to file your claim with Employment Security regularly and do a job search. You must do so to collect back benefits if you win the appeal.

If the employer appeals Employment Security's decision to grant you benefits, you have the right to continue receiving benefits until the Appeal Tribunal decides your case. If the Appeal Tribunal rules against you, you will have to pay back the money unless you win at the next level of appeal.

THE AVAILABILITY REQUIREMENT

After you leave your job, Employment Security requires you to be available and seeking permanent full-time work. They can deny you if they conclude you have done an inadequate job search. While "total" availability for work is not required, it is important to do an adequate job search. You must be available for all shifts and hours where there is a "market" for your services. Employment Security will typically look at your recent past work to make a determination of your "job market".

Make a list of employers you speak to and dates you look for work. Employment Security requires that workers have a record of their job search. You can be denied benefits for any week you fail to perform an adequate job search. Make sure you can document your efforts.

If you are unable to work full-time because of medical or psychological reasons, you may still be eligible for benefits. You must still be available for some work, but you will have an opportunity to explain to Employment Security the reasons for any limitation on work. You can present evidence from your treating physician. If you have other reasons for unavailability, it is important to explain the reasons to Employment Security. As long as you maintain significant availability to work, you may still be able to collect if you have a qualifying limitation on your time.

If you lose your job or have your hours cut back because of increased foreign imports, you may be eligible for additional assistance. The federal Trade Adjustment Assistance law provides unemployment benefits for up to a year after unemployment benefits end. The program also provides significant job training opportunities. Talk to the people at DES about this program if you think you might be eligible or contact NHLA if you have a question about eligibility.

The appeal process allows for a genuine opportunity to present your case. Do not assume you have no chance or the deck is stacked against workers. Some workers are successful on appeal. It can pay to appeal.

If you have questions about your unemployment case, contact the New Hampshire Legal Assistance office nearest you.

New Hampshire Legal Assistance is a non-profit law firm offering free legal services to seniors and eligible low-income persons.

New Hampshire Legal Assistance provides free legal help to low-income and elderly persons who cannot afford a private attorney. NH Legal Assistance handles legal matters involving health care, domestic violence, public and private housing issues, food stamps, welfare, unemployment compensation, utility shut-off and nursing home problems. Our offices are open Monday-Friday between 8:30 a.m. and 5:00 p.m.