In reply refer

Bureau of Employment Security
Washington, D.C. 20210

Unemployment Insurance
Program Letter No. 853
April 6, 1966

SUBJECT: Reopening Hearings for Claimants Who Fail To Appear at a Scheduled Benefit Appeal Hearing
REFERENCES: Sections 303(a)(3) and 303(a)(1) of the Social Security Act.
PURPOSE: To advise State agencies of the interpretation of the Federal law requiring that an opportunity for another hearing be given to a claimant who, for good cause, failed to appear at a hearing on his benefit claim.

Although it is the practice for State unemployment insurance appeals bodies to reopen a hearing for a claimant who demonstrates that he had good cause for not being present at a scheduled hearing, in some States neither the statute nor the published rules of procedure contain specific provision for this right.  In other States, the statute or rules of procedure provide only that the appeals bodies "may" (rather than "shall") reopen a hearing for a claimant in these circumstances.  In such cases, assurances have been required to establish that, in practice, claimants are afforded the right to reopening.

Sections 303(a)(3) and 303(a)(1) of the Social Security Act have been construed to require that a claimant who fails for good cause to appear at a scheduled hearing on his claim must have the right to have the proceeding reopened.  Section 303(a)(3), which requires the State law to include provision for an "Opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied," has been construed to require that the "Opportunity for a fair hearing" be one which reasonably affords the claimant a real opportunity to be heard.  Thus, when a claimant does not appear at a scheduled hearing and has good cause for not appearing, he cannot be considered to have had a reasonable opportunity to be heard unless he has the right to have the hearing reopened upon making a timely request.  The right to reopening follows also from section 303(a)(1), which requires the State law to include provision for methods of administration "reasonably calculated to insure full payment of unemployment compensation when due"; and which thus requires the establishment of reasonable procedures by which claimants may exercise and protect their rights to a fair hearing.

The right to reopening discussed above applies to all first-stage appeals, "whether heard by a referee or the Board of Review in the first instance, or removed to the Board.  The right is applicable to further proceedings on second-stage appeals where the proceedings held are in effect a continuation or reopening of the proceedings at the first stage; as, for example, when further evidence is taken to supplement the record made at the first stage.  The right must exist whether the claimant is appellant or appellee, and the claimant must be afforded a reasonable length of time in which to apply for reopening.

We recommend that statutes or published rules cf procedure be amended, where necessary, to provide explicitly for the right to reopening required by sections 303(a)(3) and 303(a)(1) of the Social Security Act.  If, however, the right is not specifically or fully expressed in the State's statute, or in its published rules of procedure, the State must inform claimants in writing of the right to reopening. Such information may be included in informational leaflets given to claimants or on specific forms such as the notice of hearing.  Even where the State's statute or published rules of procedure specifically provide for this right, we recommend that the State furnish claimants in cases of appeal with printed leaflets containing, in understandable terms, their rights of appeal and fair hearing and a clear description of procedures for hearing and review of benefit appeals.


Sincerely yours,

Robert C. Goodwin