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The Oregon Administrative Rules contain OARs filed through July 15, 2014
 
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EMPLOYMENT DEPARTMENT

 

DIVISION 41

APPEALS

Higher Appeals Procedure

471-041-0050

Definitions

(1) "ALJ" means Administrative Law Judge.

(2) "Applicant" means the party on whose behalf the application for review was filed.

(3) "EAB" means the Employment Appeals Board.

(4) "Mail" means United States Postal Service mail.

(5) "OAH" means the Office of Administrative Hearings.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-0010-010; ED 1-1995, f. & cert. ef. 1-9-95; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0060

Application for Review

(1) An application for review may be filed on forms provided by OAH or the Employment Department and other similar offices in other states. Use of the form is not required, provided the party requests review of a specific hearing decision, or otherwise expresses intent to appeal a specific hearing decision.

(2) An application for review may be filed in person, by mail or by fax to EAB, or any office of the Employment Department, or any Employment Security Agency in any other state or jurisdiction where a party is claiming benefits.

(3) An application for review that does not conform to the requirements of this rule is subject to dismissal.

(4) EAB will treat an application for review by a party whose request for hearing was dismissed because that party failed to appear as a request to reopen the hearing under ORS 657.270.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.685
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0005; ED 1-1995, f. & cert. ef. 1-9-95; ED 6-1996, f. 10-15-96, cert. ef. 10-21-96; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 3-2004(Temp), f. 5-3-04, cert. ef. 5-4-04 thru 10-31-04; ED 5-2004, f. 7-30-04, cert. ef. 8-1-04; ED 8-2006, f. 7-27-06, cert. ef. 7-30-06; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06; ED 5-2007(Temp), f, & cert. ef. 10-16-07 thru 4-12-08; ED 2-2008, f. & cert. ef. 1-8-08

471-041-0065

Filing Dates

(1) Filing dates shall be determined as follows:

(a) If delivered in person, the filing date is the date of delivery, as evidenced by the receipt date stamped or written by the public employee who received the document.

(b) If mailed, the filing date is the date that the document is deposited in the United States mail in an envelope with first class postage, as evidenced by the postmark affixed to the envelope by the United States Postal Service.

(c) If faxed, the filing date is the receipt date stamped or written on the fax transmission by the public employee who receives the document. EAB's normal business hours are Monday through Friday, 8:00 am to 5:00 pm, Pacific Time. If EAB receives a faxed document after 5:00 pm, or on a Saturday, Sunday or legal holiday, it will be marked as received the following business day.

(2) Where the information specified in section (1) of this rule is missing or unclear, the filing date is the date that EAB determines to be the most probable date of filing.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist: ED 1-1995, f. & cert. ef. 1-9-95; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0070

Late Application for Review

(1) An application for review is timely if it is filed within 20 days of the date that OAH mailed the hearing decision sought to be reviewed. EAB shall dismiss a late application for review, unless the filing period is extended in accordance with this rule.

(2) The filing period may be extended a reasonable time upon a showing of good cause as provided by ORS 657.875.

(a) “Good cause” exists when the applicant provides satisfactory evidence that factors or circumstances beyond the applicant’s reasonable control prevented timely filing.

(b) “A reasonable time” is seven days after the circumstances that prevented timely filing ceased to exist.

(3) The applicant shall include with the application for review a written statement describing the circumstances that prevented a timely filing. Nothing in this rule prevents EAB from referring the matter to OAH for a hearing if in EAB’s discretion, a hearing is necessary to EAB’s determination under section (2).

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0007; ED 1-1995, f. & cert. ef. 1-9-95; Administrative correction 6-2-99; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12; ED 9-2011(Temp), f. & cert. ef. 8-30-11 thru 2-18-12; Administrative correction, 3-20-12

471-041-0075

Acknowledgement of Application for Review

When EAB receives a valid and timely application for review, it shall notify all parties promptly by mail or email.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist: ED 1-1995, f. & cert. ef. 1-9-95; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0080

Presentation of Argument

(1) Parties may submit written argument within 20 days of the date that EAB mails or emails the notice required by OAR 471-041-0075.

(2) A party's written argument will not be considered unless it:

(a) Includes a statement that a copy has been provided to the other parties. Example: "I certify that on I mailed by first class mail a copy of this document to the opposing party, addressed as follows: ABC Company, 123 Main St., Portland, OR, 9XXXX."

(b) Is received within the time allowed.

(3) Written argument may be delivered in person, by mail, or by fax.

(4) At the discretion of EAB, the time allowed for submitting written arguments under section (1) may be extended for one or more periods, not to exceed a total of 14 days.
Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6) & 657.690
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0010; ED 1-1995, f. & cert. ef. 1-9-95; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0090

Additional Evidence

Information not received into evidence at the hearing will not be considered on review, except, subject to notice and an opportunity to be heard:

(1) Exhibits offered, but not received into evidence, may be received into evidence as necessary to complete the record;

(2) New information may be considered when the party offering the information establishes that:

(a) The new information is relevant and material to EAB's determination; and

(b) Factors or circumstances beyond the party's reasonable control prevented the party from offering the information into evidence at the hearing; and

(3) Notice may be taken of information contained in Employment Department records, generally cognizable facts, and general, technical or scientific facts within EAB's specialized knowledge.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.275 & 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0015; ED 1-1995, f. & cert. ef. 1-9-95; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0095

Case Consolidation and Voting

Cases involving multiple parties, similar facts or similar issues may be consolidated. Cases are considered in panels of two or three EAB members. A member shall disqualify himself or herself from participation in any case in which the member has a private interest in the outcome, or a bias likely to impair his or her impartial review.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(3), 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0035; ED 1-1995, f. & cert. ef. 1-9-1995; Renumbered from 471-041-0130, ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0098

Request to Withdraw Application for Review

An applicant's written request to withdraw an application for review will be allowed unless the request is received after notice of EAB's decision has been issued.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0030; ED 1-1995, f. & cert. ef. 1-9-1995; Renumbered from 471-041-0120, ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0100

Notice of Decision

Notice of EAB's decision shall be by mail or email to each party or its representative at the address of record with EAB and shall include.

(1) A caption identifying the parties and their representatives,

(2) Findings of fact,

(3) Conclusions and reasons,

(4) A statement of appeal rights, and

(5) The date that the notice was issued.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.275 & 657.685(6)
Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0020; ED 1-1995. f. & cert. ef. 1-9-95; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

471-041-0120 [Renumbered to 471-041-0098]

471-041-0130 [Renumbered to 471-041-0095]

471-041-0145

Reconsideration

(1) Any party may request reconsideration to correct an error of material fact or law, or to explain any unexplained inconsistency with Employment Department rule, or officially stated Employment Department position, or prior Employment Department practice.

(2) The request is subject to dismissal unless it:

(a) Includes a statement that a copy has been provided to the other parties. Example: "I certify that on I mailed by first class mail a copy of this document to the opposing party, addressed as follows: ABC Company, 123 Main St., Portland, OR, 9XXXX."

(b) Is filed on or before the 20th day after the decision sought to be reconsidered is mailed.

Stat. Auth.: ORS 183, 657.610 & 657.685
Stats. Implemented: ORS 657.685(6)
Hist: ED 1-1995, f. & cert. ef. 1-9-95; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06

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