Blog
10 Feb 2016

Kentucky Unemployment Appeals by Louisville Employment Attorney Patricia Abell

There are two opportunities to file Kentucky Unemployment Appeals at the Administrative level (Filed with the Agency and not in Court). Your first Administrative or Agency Appeal will be from the Notice of Determination.  this is the document that says you are not entitled to get unemployment benefits. This appeal results in a telephone hearing held by a Referee.  While the hearing is by telephone, instead of in person it is still an evidentiary hearing and it is important to be prepared and understand the case and the law.

Testimony will be taken under oath – just like in  a courtroom.  You will have the opportunity to present evidence. While this hearing is by telephone and more informal than a case in court, it is the one opportunity you have to prove your case.   It is important to understand the law and what must be proven in order to win your case.  You should be fully prepared to present your case at the Referee’s hearing as this is the stage where you have the best opportunity to establish benefit eligibility. At the end of this hearing ask the Referee how to obtain a copy of the hearing and then immediately follow his or her instructions and make the request that day.  In other words, this is where it is decided if the former employee gets an unemployment check! If you think you may want to hire a lawyer you should do so before this first hearing because subsequent appeal decisions will be based upon the evidence presented at this hearing.

If you lose at the first appeal level, your second Kentucky Unemployment Appeal will be to the Unemployment Insurance Commission.  (Your employer can also appeal if you win.) In this second Kentucky Unemployment Appeal you can ask the Commission to review the evidence and the decision and change the Referee’s decision. As a general rule, you do not get to present new evidence

The KENTUCKY UNEMPLOYMENT APPEAL MUST BE IN WRITING and either mailed, emailed or faxed to the address or number in the notice. If you send regular mail, you must have a USPS postmark date.  Postmarks by personal or business postage machines are not accepted as their dates can be altered.  If you choose to use one of these other forms of postage make sure you mail your appeal early enough for it to be received on or before the required appeal date. It is a good idea to take your Appeal letter to your local post office if you choose the traditional mail option.  If you e-mail or fax the appeal, make sure you get and keep the delivery confirmation.  It is a good idea to send your appeal early enough that you can call the Unemployment Appeals Branch in Frankfort before the due date to verify that your appeal has been received.

YOU MUST INCLUDE in your written appeal:

  1. A clear statement that you are appealing and the reason for the appeal;  AND,
  2.  Your name (or your company’s name if it is the employer who is filing the appeal);  AND,
  3.  The social security number of the claimant. (The discharged, fired or laid off employee is the claimant.).

If you lose the second appeal before the Commission, your next option is to file your third Kentucky Unemployment Appeal with the appropriate Circuit Court.  It is very easy for the non-lawyer to make mistakes at this stage that result in the case being dismissed.  If you decide to appeal at this stage you should hire an attorney if you did not hire one for the first Unemployment Appeal.

The Circuit Court Judge can only reverse the decision in very limited circumstances.  Essentially, if the facts do not support the decision or if the law was not applied correctly it can be reversed. Otherwise the decision stands.  The state court judge cannot reverse the decision just because it isn’t fair or even if he or she would have ruled differently, if the facts could support the decision. The Judicial Standard of Review is:

“If there is substantial evidence in the record to support an agency’s findings, the findings will be upheld, even though there may be conflicting evidence in the record. Kentucky Comm’n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky.1981). An agency’s findings are clearly erroneous if arbitrary or unsupported by substantial evidence in the record. Id. If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed. Brown Hotel Co., 365 S.W.2d at 302.” – Miller v. Kentucky Unemployment Insurance Commission et.al. 2012–CA–001167–MR.”

If you decide to represent yourself before the Kentucky Unemployment Appeals Branch or the Unemployment Insurance Commission, Kentucky has excellent information on its website, although it is sometimes difficult to navigate.    If you decide to represent yourself, Kentucky has excellent information on its website, although it is sometimes difficult to navigate.  For more information go to:

Kentucky Office of Employment and Training  to file online or to  http://kcc.ky.gov/career/Unemployment.aspx for more information.

REMEMBER:  Your best chance of winning your case is at the Referee’s hearing.  After that the Commission and the Court look at the evidence presented in the Referee’s hearing.  It is extremely rare for you to be allowed to present additional evidence.  You should operate under the assumption that you will NOT be the exception.

 

 

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  • Pat is a fighter. It's great to have someone like this on your side. She does extensive research and is fully prepared to do battle in court. Thank you Pat for all your great work, professionalism and dedication.

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Areas Served :

Patricia Abell's Law office is located in Louisville, Jefferson County, Kentucky. My office serves clients living in the Kentucky counties of Breckinridge, Bullitt, Hardin, Jefferson, Larue, Marion, Meade, Nelson, Oldham, Spencer and Washington, This includes the cities of Cloverport, Hardinsburg, Irvington, Fox Chase, Hebron Estates, Hillview, Lebanon Junction, Mount Washington, Pioneer Village, Shepherdsville, Elizabethtown, Radcliff, Sonora, Upton, Vine Grove, West Point, Anchorage, Audubon Park, Buechel, Goose Creek, Hurstbourne, Jeffersontown, Okolona, Prospect, Hodgenville, Bradfordsville, Lebanon, Loretto, Raywick, Brandenburg, Ekron, Muldraugh, Bardstown, Bloomfield, Fairfield, New Haven, Crestwood, Goshen, Lagrange, Pewee Valley, Taylorsville, Elk Creek, Mount Eden, Springfield.