Unemployment Compensation - The Washington Lawyers' Committee (2024)

In D.C., the Department of Employment Services (DOES) runs the unemployment compensation program. Workers may file their claims online at the website for the Department of Employment Services (select “Unemployment” then “Unemployment Compensation Process” then “Start your Unemployment Compensation Process”) or over the phone at: (202) 724-7000 or (877) 319-7346. Workers may file their claims in person at local DOES offices and American Job Centers located throughout the city. See the Claims and Appeals Process section below.

Coverage & Exemptions

Employers must pay into the UI fund if they employ a worker entirely within D.C. or mostly within D.C. (if the services performed by the worker outside of D.C. are “incidental” to the services performed within D.C.). See D.C. Code § 51-101(2)(B)(ii).

Note: The worker need not be a resident of D.C. to receive D.C. UI benefits; residents of Virginia and Maryland may be eligible for benefits if they worked in .DC.

Exempt Employees

The following workers represent most of the individuals who are exempt from (will not receive) unemployment compensation benefits:

employees of religious organizations;
participants in rehabilitation workshops, such as programs run by Goodwill or sheltered workshop trainees;
persons in federal or other government-sponsored work training programs;
inmates;
baby-sitters under the age of 18;
casual laborers;
any worker employed by his or her parent, child or spouse;
undocumented workers;[28] and
independent contractors who meet the common law definition of independent contractor.[29]

See D.C. Code § 51-101(2).

D.C. and Federal Government Employees

No special standards apply when dealing with D.C. and federal government employees. These employees are eligible for benefits under the same terms and conditions as private employees.

Establishing Eligibility for Benefits

Resigning from or Quitting a Job

A worker who voluntarily separates from his or her job without good cause connected to the work is not eligible for unemployment compensation. See D.C. Code § 51-110(a); 7 DCMR § 311.

The Standard for Voluntary Separation

Leaving is presumed to be involuntary. Thus, unless the worker admits that she quit voluntarily, the employer has the burden of proving that the worker left voluntarily. 7 DCMR § 311.3. For example, in Washington Chapter of the American Institute of Architects v. DOES, 594 A.2d 83 (1991), an executive vice president was judged to have left her employment involuntarily when she was forced to choose between signing a letter of resignation presented to her or told to “stay and be miserable.” She was allowed to collect benefits.

If a worker resigns under “threat of imminent termination,” the leaving is considered a constructive discharge for misconduct, and thus, involuntary. 7 DCMR § 311.8. However, the employer then will have the opportunity to prove that the imminent termination – if it had occurred – would have been for simple or gross misconduct. Id.

What is Good Cause to Resign?

Whether a worker had good cause connected with the work to support leaving voluntarily is determined by the following test: “What would a reasonable and prudent person in the labor market do in the same circ*mstances?” 7 DCMR § 311.5.

The regulations state that good cause connected to the work includes, but is not limited to:

racial discrimination or harassment;
sexual discrimination or harassment;
failure to provide remuneration for the employee’s services;
being required to work in unsafe locations or under unsafe conditions;
illness or disability caused or aggravated by the work (provided the worker previously has supplied the employer with a medical statement); or
transportation problems arising from the employer’s relocation.

See 7 DCMR § 311.7.

A significant reduction in wages also may constitute good cause to quit. See Consumer Action Network v. Tielman, 49 A.3d 1208 (D.C. 2012). The worker should present evidence of the reduction in wages and his or her personal living expenses to prove economic hardship. See Id. at 1214.

In addition, the 2010 Unemployment Compensation Reform Amendment Act expands eligibility to those who leave their jobs for compelling family reasons. Under the 2010 updates, a worker may be qualified to receive unemployment benefits for the following reasons:

a spouse or domestic partner’s employment requires a transfer to a location that makes it impractical to commute to her current employment (e.g., military orders for transfer resulting in need to relocate). C. Code § 51-110(d)(4);
to care for a family member[30] who is ill or disabled; or
due to domestic violence against the worker or against a member of his/her immediate family. C. Code § 51-131.

Note: If an individual voluntarily quits to care for an ill/disabled family member, she won’t immediately be eligible to receive unemployment because she cannot satisfy the “available to work” requirement. However, as soon as that period of care is over, the worker would be eligible to receive benefits.

The regulations state that the following circ*mstances constitute resignations without good cause:

Refusal to obey reasonable employer rules;
Minor reduction in wages;
Transfer from one type of work to another which is reasonable and necessary;
Marriage or divorce resulting in a change of residence;
General dissatisfaction with the work;
Resignation to attend school or training; or
Personal or domestic responsibilities, unless related to care of an ill or disabled family member, or to relocate with a spouse or domestic partner (effective July 22, 2010).

See 7 DCMR § 311.6.

In addition, the courts have found the following resignations to be without good cause:

Quitting after being told to “shape up or ship out;”[31]
Leaving to accept a job that does not come to fruition;[32]
Resignation due to non-work-related health problem, including pregnancy;[33]
Voluntary change from full-time to on-call status, and subsequently offered no work;[34]
Resignation due to illness, absent medical support stating that it is related to or aggravated by the work;[35] or
Resignation due to stress and psychological disorders, absent medical support stating that it is caused or aggravated by the job.[36]

Resigning Due to Illness or Disability Connected to the Work

The regulations state that a worker has good cause to resign if she quits a job because of a disability caused or aggravated by the work. See 7 DCMR § 311.7. The claimant, however, must have provided a medical statement to her employer that indicates a need for accommodations or recommends that the employee resigns before she quits.[37]

In Hill v. DOES, 467 A.2d 134 (D.C. 1983), a claimant was denied unemployment benefits when the court ruled that she had voluntarily quit, even though her resignation had been in response to an involuntary psychiatric evaluation and retirement proceeding. The court found that the claimant had failed to show that the psychiatric ailment was connected to her work, thus eliminating disability as good cause for resignation. The court further found that a decision to retire voluntarily to avoid the stigma of publicly airing a psychiatric problem did not constitute good cause “in light of the private nature of the involuntary retirement proceeding.” Id.

Resigning under Threat of Discharge

Resigning under the threat of discharge is not voluntary. See Green v. DOES, 499 A.2d 870 (1985).[38] The threat of discharge, however, must be “real and imminent” for the resignation to be judged involuntary for purposes of collecting unemployment. See Perkins v. DOES, 482 A.2d 401 (D.C. 1984).

If the worker resigns under threat of imminent termination for misconduct, the hearing examiner must make a separate determination regarding whether misconduct is proved. See 7 DCMR § 311.8.

Worker Voluntarily Changes Status to On-Call

If a worker voluntarily changes his or her work status to “on-call,” and the employer subsequently has no work available, the worker’s decision will be treated as a voluntary resignation, and s/he will be disqualified from collecting unemployment. See Freeman v. DOES, 568 A.2d 1091 (1990) (holding that an employee who fails to take all necessary and reasonable steps to preserve employment is deemed to have brought about voluntary termination of employment for unemployment compensation purposes).

Members of the Military who are Discharged from Service

Eligibility for unemployment benefits for those leaving the military is authorized under 5 U.S.C. § 8521 et seq. A service man or woman who has completed an active term of military service and who does not request re-enlistment is not eligible to receive unemployment benefits under the above federal statute. See Wells v. DOES, 513 A.2d 235 (1986). This is tantamount to a voluntary resignation from the military.

Involuntary Terminations

A worker who is involuntarily terminated from his or her job is generally eligible to receive unemployment benefits unless that termination was due to the worker’s simple misconduct or gross misconduct. A finding of simple misconduct will result in an eight-week disqualification from receiving benefits, while a finding of gross misconduct will result in a total disqualification from receiving benefits.[39]

It is the employer who bears the burden of proving misconduct. When the case is being heard before an administrative law judge (ALJ), the ALJ can only deny unemployment compensation on the misconduct theory promulgated by the employer. The ALJ may not rule against the employee based on an independent theory of misconduct not argued by the employer. See Lynch v. Masters Sec., 93 A.3d 668, 675 (D.C. 2014).

Gross Misconduct

“Gross misconduct,” as defined in 7 DCMR § 312, results in disqualification for unemployment until the worker has worked at another job for 10 weeks and 10 times the weekly benefit has accumulated. Id. at § 51-110(b)(1).[40]

Gross misconduct is defined as “an act which deliberately or willfully violates the employer’s rules, deliberately or willfully threatens the employer’s interests, shows a repeated disregard for the employee’s obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.” See 7 DCMR § 312.3. Examples of behavior that can constitute gross misconduct include, but are not limited to:

Sabotage;
Unprovoked assaults or threats;
Arson;
Theft or attempted theft;
Dishonesty;
Insubordination;
Repeated disregard of reasonable orders;
Intoxication, use or possession of drugs[41];
Willful destruction of property; or
Repeated absence or tardiness following warning.

See 7 DCMR § 312.4.

See also R.B. v. Environmental Protection Agency, 31 A.3d 458 (D.C. 2011), construing the regulations for proof of misconduct in 7 DCMR 312.9 and 312.10, and reversing a finding of gross misconduct in the absence of availability for cross-examination of the person (R.B.’s wife) who made statements that were being used to prove misconduct.

Simple Misconduct

Simple misconduct is something less than gross misconduct, and it results in an eight- week disqualification. See D.C. Code § 51-110(b)(2). The worker is disqualified for the first eight weeks of benefits claimed, but will receive the remaining 18 weeks of benefits if otherwise eligible.

The following are examples of behavior that can constitute simple misconduct:

minor violations of employer rules;
conducting unauthorized personal activities during business hours;
absence or tardiness where the number of instances or their proximity in time does not rise to the level of gross misconduct; or inappropriate use of profane or abusive language.

See 7 DCMR § 312.6.

Loss of Job Because of Labor Dispute

Involvement in most labor disputes, such as a strike, disqualifies a person from unemployment benefits for the duration of the dispute. See D.C. Code § 51-110(f); Barbour v. DOES, 499 A.2d 122 (1985).

When a person will not cross a picket line because of a reasonable fear of violence, however, they may receive unemployment compensation. See Washington Post Co. v. District Unemployment Compensation Bd., 377 A.2d 436 (D.C. 1977).

When an employer institutes a lockout of the workers as part of a labor dispute, a worker may receive unemployment compensation. A worker cannot, however, convert a strike into a lockout by returning to work. See NBC v. DUCB, 380 A.2d 998 (D.C.1979). If a lockout occurs, the court still will determine eligibility “on the basis of the initial cause of the interruption of employment,” and if that cause is a voluntary strike, the workers will not be eligible for benefits. See American Broadcasting Companies, Inc., v. D.C. Dep’t of Empl. Servs., 822 A.2d 1085 (D.C. 2003).

Victims of Domestic Violence

In 2004, D.C. signed into law the Unemployment Compensation and Domestic Violence Amendment Act of 2003, which expanded unemployment compensation coverage for domestic violence victims who lose their jobs as a result of the violence. See D.C. Code § 51-101 et seq.). The act is similar to legislation enacted in 24 states across the country, which allows domestic violence victims to receive unemployment compensation if they establish that they quit or were fired because of domestic violence. For example, if a domestic violence victim quits to go into hiding from her batterer, or is fired because of excessive absenteeism because of the abuse, these reasons for separation from employment no longer will prevent an employee from receiving benefits. See D.C. Code § 51-131.

To receive unemployment compensation, domestic violence victims must produce the same paperwork required of all other applicants for unemployment compensation. Additionally, domestic violence victims must offer some sort of proof that they are victims of domestic violence. Proof can include the following:

(1) A police report or record;
(2) A court record, such as a Temporary Protection Order or Civil Protection Order;
(3) A governmental agency record such as a report from Child Services; or
(4) A written statement affirming that the victim has sought services from a shelter official, social worker, counselor, therapist, attorney, medical doctor, or cleric.

D.C. Code § 51-132.

The employer, however, will not be charged for the provision of benefits.[43]Instead, the benefits will come from D.C.’s general funds. In 2010, legislation went into effect that expands eligibility further. Under the new law, DOES is prohibited from denying benefits because an individual separated from employment due to domestic violence not only against the individual but also against any member of her immediate family. See D.C. Code § 51-131. See D.C. Code § 51-131.

Monetary Eligibility and Amount of Benefits

To receive benefits, a worker must have monetary eligibility. Monetary eligibility is established through the worker’s earnings history during the relevant base period. Essentially, the worker must have earned a certain amount during the period leading up to the time the claim is filed. The amount the worker earned during that period also will determine the amount of the weekly benefit the worker will receive from the unemployment compensation program.

Required Worker Earnings in the “Base Period”

In order to meet the requirements for monetary eligibility, the worker must have earned at least $1,950 in wages in the applicable “base period.” Of those wages, $1,300 must have been within any one quarter (three-month period) of the base period and all earnings cannot have been earned in one calendar month. Jobs can be stacked; that is, prior jobs can be used to determine eligibility. Jobs from any state also can be used to determine eligibility.

Regular Base Period

The regular base period is a 12-month period of earnings that includes the first four of the last five completed calendar quarters. It is determined based on the date that the claim was filed. See D.C. Code § 51-101(6)-(9).

Alternative Base Period (ABP)

If a worker is not eligible under the regular base period, the worker may be eligible under the alternative base period. The ABP is defined as the last four completed calendar quarters. The Alternative Base Period legislation was passed in an effort to address the fact that under the traditional base period, up to six months of the worker’s most recent wages are ignored. Under the ABP, only between zero and three months of recent wages are ignored. Again, the ABP period is triggered only when an individual is not eligible under the regular base period. Claimants cannot invoke the ABP to get a higher benefit amount.

Example to Help Determine Claimant’s Monetary Eligibility

Assuming that the claimant filed his or her claim for benefits between April and June of 2016, the chart below represents the claimant’s regular base and alternative base periods.

First Quarter

January – March 2015

Second Quarter

April-June 2015

Third Quarter

July – September 2015

Fourth Quarter

October –December 2015

Fifth Quarter

January – March 2016

Quarter in Which Claim Is Filed

April – June 2016

←←←←←←← REGULAR BASE PERIOD →→→→→→

←←←←←← ALTERNATIVE BASE PERIOD →→→→→→

To determine if the claimant has earned enough during the relevant base period, ask the following questions:

(1) Did the claimant earn at least $1,950 during the relevant base period?
(2) Was a total of $1,300 (of the minimum $1,950) earned in any one of the four quarters of the relevant base period?
(3) Did the claimant earn some wages in at least two of the quarters in the relevant base period?
(4) Is the claimant’s total base period income, plus $70, equal to at least one and a half times her income in her highest-earning quarter?

If the answer to all four questions is yes, then the claimant has established monetary eligibility for benefits.

A Form UC 400, Notice of Monetary Determination will be mailed to the worker within seven days after she files the claim indicating the worker’s weekly and total benefit amounts. The form will list the wages reported under the worker’s name and Social Security number during the base period by all the employers who are covered by the District of Columbia’s Unemployment Compensation Program. Workers should check the form carefully for the following information:

Wages not included for an employer that employed the worker within the base period.
Wages included for employers for whom the worker did not work.

If the worker is not monetarily eligible, the notice of Monetary Determination will indicate what requirement(s) the worker did not meet.

Amount of Benefits

Generally, benefits are 50 percent of the average weekly wage earned during the base period. See D.C. Code § 51-107(b)(2)(B)(iii). The minimum benefit is $50 a week or approximately $215 a month. Effective October 1, 2016, the maximum benefit is $425 a week (approximately $1,700 a month), and may be adjusted for inflation in the future. Benefits can be collected for a maximum of 26 weeks (approximately six months).[44]

If the claimant believes the amount in the Notice of Monetary Determination is incorrect, the claimant should report to a DOES office or American Job Centers immediately and request a re-determination – or file an appeal within 15 days of the date of mailing of the monetary determination. The claimant should bring check stubs, W-2 forms and other proof of wages in an effort to successfully challenge the monetary determination.

Reduction in Benefits for Wages, Pensions, Annuities or Public Benefits

If a claimant earns wages from another source while collecting benefits, those gross wages must be reported to DOES to determine the worker’s continued eligibility for benefits and the amount of benefits to which the claimant is entitled. The formula used to adjust benefits when there are wages from work is the following:

(Weekly Benefit Amount + $50) – 66% of weekly earnings = Benefit Due

See D.C. Code § 51-107(e).

The amount of any pension or annuity (for example, a public or private retirement plan such as a union member’s pension) collected by the worker will be deducted from the weekly UI benefit amount dollar for dollar. See D.C. Code § 51-107(c); 7 DCMR § 317. However, D.C. Code § 51-107(c)(2) states that, while “benefits payable … shall be reduced …by any amount received …under a public or private retirement plan[,] … no reduction shall be made under this sentence for any amount received under Title II of the Social Security Act.” See D.C. Code § 51-107(c)(2). Title II includes Social Security Income and Disability Benefits. On its own, therefore, the receipt of SSI (Supplemental Security Income) or SSDI (Social Security Disability Insurance) from the federal government will not preclude the worker from receiving unemployment benefits. To ultimately qualify, however, the worker still will be required to show she is “available for work,” which could be a challenge for disabled individuals. The salient issues will be whether the prospective claimant can work with reasonable accommodations, and to what extent she can work.

Severance Pay

Claimants are required to report the receipt of severance pay on their initial claim form. Employers report the payment of any severance as well once they are notified that a claim has been filed.

Severance pay is treated by the UI system as a continuation of pay. Therefore, if a claim for UI is filed during the period that a worker is receiving severance, UI will be delayed for the duration of the severance pay. Employers usually frame severance pay by number of weeks or months of pay (e.g., three months of severance pay). Questions, however, are raised when employers do not specify the period of time for the severance pay and just present the worker with the pre-calculated amount of money. In these cases, the claimant should argue that the amount received is a lump-sum payment that should only delay one week of UI (the week in which the severance pay was received). It is likely, however, that the severance pay will be divided by the worker’s regular weekly wage to determine the length of the delay.

Pension & Annuities

A claimant may be disqualified from receiving unemployment benefits if (a) she receives a retirement pension or annuity under a plan to which the employer contributed during the claimant’s base period (not Social Security) and (b) the amount received exceeds the total amount of the benefits to which she would otherwise be entitled in the same period. D.C. Code § 51-107(c); Rogers v. District of Columbia Unemployment Compensation Bd., 290 A.2d 586 (D.C. 1972) (upholding denial of UI benefits to a recently-retired U.S. Postal Service employee after a finding that the annuity he received from USPS exceeded his potential weekly benefit amount).

If the Employer Has Not Reported Wages or Paid into the System

Employers are required to report the wages of their employees and to make periodic payments into the unemployment compensation system for each worker. Some employers neglect to make these payments to save money. If this happens, the initial claims examiner is supposed to conduct an investigation. As a part of the investigation, the worker should submit pay stubs and other evidence of the amount of money earned.

If the worker ultimately is denied unemployment on this basis, she should file an appeal of the claims examiner’s determination. On appeal, she should submit any and all pay stubs. She also will need the name of the employer and, if possible, the employer’s Federal Taxpayer Identification number, which should be on the worker’s pay stub. The worker also must be prepared to demonstrate that she was an employee and not an independent contractor.

The worker also should push to make DOES enforce the employer’s legal obligations to report wages and pay into the system. DOES has broad collection authority. It can, for example, seize assets, including real property and tax refunds, or revoke licenses or government contracts. See D.C. Code § 51-104(e) through (h). In some circ*mstances, the claimant may be paid unemployment benefits from a special fund and the District will pursue the unpaid taxes from the recalcitrant employer.

Benefits are Taxable

Benefits are taxable as income for both federal and D.C. tax purposes. See 26 U.S.C. § 85; D.C. Code § 47-1803.2. DOES reports unemployment compensation to the IRS and D.C. taxing authority. Workers now may choose not to have D.C. taxes withheld from their unemployment benefits; however, even if they choose not to have the taxes withheld, they will remain liable to pay them.

For most workers, unemployment benefits do not count as earned income for purposes of the D.C. or federal earned income tax credit. See Publication 596, “Earned Income Tax Credit,” U.S. Internal Revenue Service.

Claims and Appeals Process

Filing the Initial Claim

When a worker loses or quits a job, she may file a new claim online at: http://www.dcnetworks.org or over the phone at (202) 724-7000 or (877) 319-7346. Workers may go to American Job Centers to attend an information session or meet with a claims examiner and file a claim. Workers may file a claim any time during the American Job Center ’s office hours, but should arrive early to have adequate time to file the claim. If a worker calls DOES, she should be prepared for long periods on hold. Because not all of the American Job Centers offer comprehensive UI services, workers may want to file at a DOES office.

American Job Centers Offices to File UI Claims

American Job Centers – Northwest, Frank D. Reeves Municipal Center, 2000 14^th Street, NW, 3^rd Floor, Washington, D.C. 20009

Hours: M-TH 8:30 a.m.-4:30 p.m., F 9:30 a.m. – 4:30 p.m., Phone (202) 442-4577

American Job Centers – Northeast, CCDC.-Bertie Backus Campus, 5171 South Dakota Ave, NE, 2^nd Floor, Washington, D.C. 20011

Hours: M-TH 8:30 a.m.-4:30 p.m., -F 9:30 a.m. – 4:30 p.m., Phone (202) 576-3092

American Job Centers – Southeast, 2330 Pomeroy Road, SE, Washington, D.C. 20020

Hours: M-TH 8:30 a.m.-4:30 p.m., F 9:30 a.m. – 4:30 p.m., Phone (202) 741-7747

American Job Centers – National Harbor, 6800 Oxon Hill Road, Ste 298, National Harbor, MD 20745

Hours: M-F 8:00 a.m.-5:00 p.m., Phone (310) 968-1658

At the office, the worker fills out a claim form with general information and information about why she lost or left her job. There is no time limit for the application, but because eligibility for unemployment is determined from past wages, the past wages may “disappear” if the worker waits too long to file.

Claims Examiner’s Initial Determination

When a claim is filed, it is assigned to a claims examiner at the local office. The claims examiner is required to promptly make an initial determination about the reason for the termination or resignation. The claims examiner is supposed to interview the worker and then the employer to get each side’s story. Either side may submit a written statement, but this examination is conducted mostly by in-office appointments and by telephone. The claims examiner then declares in writing whether the worker is eligible for benefits. Either side may appeal the claims examiner’s determination. See D.C. Code § 51-111(c).

Appealing the Claims Examiner’s Determination

The time limit for appeal is very short – 15 calendar days from mailing, not receipt, of the notice of eligibility. For this reason, workers should save envelopes to prove actual mailing dates (which is often one to two days after the date on the letter) and hand-deliver their hearing request form. If the 15-day filing deadline falls on a Saturday, Sunday or a legal holiday, the deadline is extended to the next business day.

Under the 2010 Unemployment Compensation Reform Amendment Act, the 15-calendar day appeal deadline may be extended for “good cause” or “excusable neglect.” See D.C. Code § 51-111(b). This means that if the claimant had a good reason for filing her appeal late, OAH may excuse the lateness and consider the appeal. To determine if a claimant missed a deadline due to “excusable neglect” or “good cause”, D.C. has adopted a four-factor test against which each case is weighed. The four factors weighed by the courts are: (1) the danger of prejudice to the opposing party, (2) the length of the delay and the potential impact of that delay on court proceedings, (3) the reason for the delay (including whether or not it was within reasonable control of the claimant), and (4) whether or not the claimant acted in good faith.[45] Workers should save all documents and envelopes that may explain why she filed the appeal late and give copies to OAH.

How to File a Hearing Request

If the claimant seeks to appeal a denial of benefits, she must file an appeal (also called a hearing request) by mail, fax or in person with the Office of Administrative Hearings (OAH). Directions on filing an appeal should be included with the claims examiner’s determination, but if no other information is given, a claimant may file an appeal in one of the following ways:

In person: The claimant may fill out a hearing request form in person at the OAH, 441 4th Street, NW, Suite 450-North, Washington D.C. 20001, from 9 a.m. to 5 p.m., Monday through Friday. The claimant will need photo identification to enter the building. The OAH has a Pro Se Resource Center to assist claimants with filing their documents.
By mail: The claimant may mail a hearing request to the OAH at the address above. The U.S. Postal Service postmark will be considered in deciding whether the claimant met the filing deadline, but generally, the document is “filed” on the date that it is actually received by the OAH.
By fax: The claimant may fax a hearing request to the OAH at (202) 442-9451. A hearing request faxed after 5 p.m. is stamped as “filed” on the next business day. The claimant may confirm the receipt of the fax by contacting the OAH Clerk’s Office at (202) 442-8167 or (202) 442-9094.
Email and Filing Documents Online: The claimant may email a PDF of all forms and Claims Examiner Determinations to [emailprotected]. A claimant also may file documents online at http://oah.dc.gov. As e-filing is a relatively new technology and thus subject to change, claimants should check the latest OAH Rules on e-filing on the OAH website.

The claimant should submit a Hearing Request Form (available in both English and Spanish at the OAH website, then “Filings and Forms” then “Variety of Forms” then “UI Request for Hearing to Appeal a Determination by a Claims Examiner Involving Unemployment Benefits); claimants should not include any facts or argument in this request. The request for a hearing also should include a copy of the claims examiner’s determination, all the pages the claimant received with the claims examiner’s determination, and the envelope in which it was mailed to the claimant.

The OAH will accept the hearing request for filing even if the claimant does not have the determination, but will then mail an order for more information or order to show cause to ask the claimant to submit a copy before a hearing is scheduled. The claimant must respond to these orders. A copy of the determination may be obtained from the DOES. If the claimant is unable to obtain a copy of s/he determination by a claims examiner, or otherwise provide the information requested by the order to show cause, s/he must tell the OAH in writing what s/he cannot obtain and why. Once the information is provided, a judge will decide whether there is a basis upon which a hearing can be scheduled.

Requesting an Interpreter

A claimant with limited English proficiency should request an interpreter in writing before the hearing. He or she should follow up the request with a separate letter and telephone call. See 1 DCMR § 2823. The OAH is required to provide an in-person interpreter or telephonic language interpretation service to parties with limited English proficiency who request interpretation services.

How to Prepare for an Unemployment Hearing

The scheduling order will instruct the claimant to send a list of witnesses (other than the claimant) and copies of any documents she wants to present as evidence to the OAH and the employer three business days before the hearing. See 1 DCMR § 2985.1. Claimants should comply with this requirement so that the judge does not exclude witnesses or documents. See 1 DCMR § 2821.3.

If the claimant asks someone to appear as a witness or produce written documents and that person refuses, the claimant can use a subpoena form to require the witness to attend the hearing or the employer to produce relevant documents at the hearing. See 1 DCMR § 2984. Each party has three pre-authorized subpoenas to use for each hearing. See 1 DCMR § 2984.1. The claimant may pick up her three pre-authorized subpoenas at the clerk’s office of the OAH. Witnesses requested through the pre-authorized subpoena must have direct knowledge of the claimant’s separation from employment. Id. Documents requested must be not more than six months old and must relate directly to the claimant’s separation from employment. Id. Subpoenas for witnesses must be personally served on the witness at least two calendar days before the hearing. See 1 DCMR § 2984.2. If either party wishes to subpoena witnesses or obtain documents not authorized by these provisions, they may follow the standard rules for subpoenas at OAH. See generally 1 DCMR § 2824.

Parties and witnesses may appear by telephone but representatives and attorneys are usually required to appear in person. See generally 1 DCMR § 2821.8. To request to participate by telephone, the worker should first try to contact the employer to see if the employer will agree to the worker or witness appearing by telephone. Even if the employer does not agree, the worker can still request a telephone appearance by submitting a document to the OAH explaining the reasons why the worker or witness must appear by telephone and the efforts the worker made to contact the employer. A motion for appearance by telephone form is available online in English, Spanish, and Amharic at https://oah.dc.gov/publication/request-participate-telephone. The worker should send a copy of this request to the employer as well.

If the worker cannot make it to the scheduled hearing, s/he should first try to contact the employer to see if the employer will agree to change the hearing date, and then request a continuance with the OAH in writing. A motion for a continuance form is available online in English, Spanish, and Amharic at https://oah.dc.gov/publication/request-different-hearing-date. The writing should explain the reasons the worker wants to change the hearing date and the efforts she made to contact the employer.

An employer also can appeal a claims examiner’s determination to grant benefits to the employee. If the employer appeals, the worker will receive a notice with the time and date of the hearing in the mail. If the worker cannot make it to the scheduled hearing, she should request a continuance in the process described above. Benefits must continue to be paid pending the outcome of the appeal. See D.C. Code § 51-111(b). These benefits, however, are subject to recoupment if it is later determined that the claimant was ineligible for benefits. (See “Overpayments” below.) Call (202) 442- 9094, or visit http://www.oah.dc.gov for further information concerning an unemployment insurance appeal at the OAH.

Appeals Hearings

The appeal is a de novo hearing, i.e., the administrative law judge must hear testimony from both sides and make an independent review of the record, without regard to the claims examiner’s decision. Hearings usually are scheduled two to three weeks after filing the hearing request. The parties may be represented at the hearing by attorneys or non-attorneys. See generally 1 DCMR § 2835.

The hearings are held “on the record” and are recorded to a digital sound recording, which may be purchased by contacting the OAH Clerk’s Office. The employer always has the burden of proof, regardless of who appealed. Because of this, claimants should be counseled not to testify on the circ*mstances surrounding their job loss if the employer does not appear at the hearing. The employer presents her side first, unless there is a jurisdictional question regarding late filing, in which case, the claimant will need to address this issue first. Written documents, testimony, and witnesses are allowed.

Usually, the main issues in a hearing are: (1) whether the appeal is timely; (2) whether the worker quit; and (3) if the worker did not quit, whether the worker was discharged for misconduct or gross misconduct.

The worker should be prepared to present all of his or her available evidence. Evidence not presented at this stage of the appeals process will generally not be considered in the later stages of an appeal. The administrative law judge will require any evidence presented to be reasonably reliable and helpful in resolving the case. The hearsay rules of evidence do not apply. See 1 DCMR § 2821.12. However, for misconduct cases especially, direct testimony is given precedence over hearsay testimony. See Coalition for the Homeless v. District of Columbia Dep’t of Empl. Servs., 653 A.2d 374, 377 (D.C. 1995) (noting that “hearsay evidence is not the kind of ‘substantial evidence’ on which the agency can base its resolution of directly conflicting testimony”) (citing Jadallahv.District of Columbia Department of Employment Services,476 A.2d 671, 676-77 (D.C. 1984)). For this reason, some workers win these hearings simply because the employer does not bring the people with firsthand knowledge of the situation. See 7 DCMR § 312.9, 312.10.

The OAH generally will mail a final order to each party and to DOES within 30 days of the date a party files a hearing request, or approximately one to two weeks after the hearing. A claimant may call the OAH three weeks after the hearing to ask whether a final order has been issued. If compelling financial circ*mstances exist (i.e., the claimant is at risk of eviction), and the claimant has not received a final order for several weeks after the hearing, the claimant may file a motion to expedite which describes the compelling financial circ*mstances. DOES will begin processing UI benefits after it receives a final order from the OAH. Claimants may contact DOES at (202) 724-7000.

The claimant may request that the administrative law judge reconsider the final order under limited circ*mstances, usually only if there is newly discovered evidence or law that was not available at the time of the hearing. The claimant must file a request for reconsideration within 15 days of the mailing date of the final order either in person at the OAH or by faxing it to (202) 442-9451. The claimant also can file a motion for relief from the final order up to 120 days after the final order is issued. DCMR 1-2828. However, whereas the motion for reconsideration tolls the deadline for filing an appeal at the D.C. Court of Appeals, the motion for relief does not toll the deadline.

A final order may be appealed by either party to the D.C. Court of Appeals within 30 calendar days from the date it is mailed to the parties. See D.C. Code § 51-112. The process for doing this is described in the final order, on a separate page called “Petition for Review.” In addition, attorney’s fees and costs may be available for claimants who prevail at the D.C. Court of Appeals. See 42 U.S.C. § 503(b) (“[Any] costs may be paid with respect to any claimant [whose question of entitlement is decided by the highest judicial authority under a state unemployment law] by a State and included as costs of administration of its law.”).

General Timeline for UI Process

Apply for UI ► If deemed eligible, the worker should start receiving benefits within one month.

If denied ►Upon receipt of a denial notice, the worker has 15 calendar days from the postmark date of the notice to appeal to the Office of Administrative Hearings (OAH). If the worker misses this 15 calendar day deadline, OAH may still consider her appeal if there was good cause or excusable neglect for the late filing.

IMPORTANT! Advise the worker to keep the envelope enclosing the claims determination to show the postmark date in case a dispute arises. If an employee preserves her/his right to appeal by mail, the unemployment compensation office is supposed to consider items filed on the date they are postmarked, not the date they are received. See 7 DCMR § 302.3.

Appeal to OAH ►After filing an appeal to OAH, it usually takes two to three weeks before the hearing takes place before an administrative law judge. (During this time, enlist free help from the AFL-CIO Claimant Advocacy Program. See information below.)

Decision from OAH ►Once a hearing is held, it will generally take 30 days from the filing of the hearing request for the administrative law judge to render a final order. A claimant may call the OAH three weeks after the hearing to ask whether a final order has been issued. DOES will begin processing UI benefits after it receives a final order from the OAH.

Motion for Reconsideration to the OAH ►This is only successful under limited circ*mstances, e.g., if there is newly discovered evidence or law that was not available at the time of the hearing. The worker may file a Motion for Reconsideration with the OAH within 15 days of the mailing of the administrative law judge’s final order.

Appeal to D.C. Court of Appeals ►A final order may be appealed to the D.C. Court of Appeals within 30 calendar days from the date it is mailed to the parties. The process for doing this is described in the final order, on a separate page called “Petition for Review.”

Free Attorney Representation

By law, the Community Services Agency of the Metro Washington AFL-CIO, Claimant Advocacy Program (CAP), provides free representation to workers on a case-by-case basis in unemployment compensation hearings. The CAP, however, only provides representation in potentially meritorious cases; it may assist some additional individual claimants with filing appeals on their own. All claimants can receive free legal counseling services in English and Spanish. CAP is located at 888 16th Street, NW, Suite 520, 20006, (202) 974-8150. No walk-ins are accepted. The worker must call the office to set up an appointment.

Requirements While Receiving Benefits

Claim Cards

While claimants are receiving benefits, they are required to submit claim cards every week which (1) identify the amount of any gross wages earned during that one-week period; (2) confirm that the claimant is able and available for work; and (3) confirm that the claimant is looking for work. In addition, DOES can require workers to attend training classes and to accept suitable employment.

Practice Tip: When submitting claim cards, claimants should keep a copy of each card or submit online (does.dc.gov) or via telephone at (202) 724-7000. There have been numerous problems with submitting claim cards via U.S. mail. If a claimant does not receive a check or a new claim card she should go immediately to a local office to ask about it. It is very important for workers to send in claim cards while they are waiting for their unemployment compensation appeals hearings, even if they are not receiving benefits during that time. If claim cards stop coming in the mail, the worker should report immediately to the local office. Failure to do so may result in a hollow victory at the appeals hearing, where eligibility is established but no back benefits are awarded.

Workers Must be Available for Work and Seeking Employment

The worker must be physically able to work, “available” for work and actively seeking employment. The claimant must make a minimum of two job contacts each week, but DOES may excuse a failure to do so. See D.C. Code § 51-109(4)(B). Job contacts are demonstrated by mail-in cards, which are usually white cards with blue ink, although sometimes they are photocopied in black and white.

Practice Tip: Where relevant, claimants should be counseled that they certify in their weekly claims cards that they are “physically able to work” – so if at any point that is not true, they should answer truthfully and not collect UI for that week. They also should be told that if DOES finds they are not “able to work,” their benefits will be terminated while they are asked to submit a physician’s certificate from their doctor, certifying that they can work.

Claimants who are full-time students are not considered available for work. See Dunn v. DOES, 467 A.2d 966 (D.C. 1983); Wood v. DOES, 334 A.2d 188 (1975); Barber v. DOES, 449 A.2d 332 (D.C. 1982). There is no presumption that a person is unavailable for work because she is pregnant, even when the pregnancy was at issue with respect to the reason for unemployment. See D.C. Code §§ 51-110(h), 51-109(1)-(4).

Alert: Sometimes the staff at the unemployment office tells a claimant that if she is disabled, she cannot receive unemployment. Indeed, one requirement of continued eligibility for unemployment is that the worker is physically able to work. The 1990 Americans with Disabilities Act, however, requires recipients of federal funds, such as the D.C. unemployment compensation program, to reasonably accommodate persons with disabilities. This means a worker cannot be denied unemployment just because of a disability. The Unemployment Office must make some inquiry into whether the person can work with a reasonable accommodation.

Workers Must Accept Suitable Work

The failure to apply for suitable work when notified it is available, or the failure to accept a suitable job when offered, results in disqualification for further benefits. What is suitable is based on a number of factors, including the claimant’s physical fitness; prior training, experience and earnings; distance from home to work; and risk to health, safety, or morals.

A person can refuse work for the following reasons: the vacancy is created by a strike or other labor dispute; the wages are less than the prevailing wages for similar work; the work requires resigning or refraining from union membership or requires joining a “company union.”

The longer the person is unemployed, the more suitable otherwise “unsuitable” work becomes. See Johnson v. District Unemployment Compensation Bd., 408 A.2d 79 (D.C. 1979).

Attending Trainings

With the approval of the Director of DOES, a claimant may receive benefits while attending a training or re-training course. See D.C. Code § 51-110(d)(2). In some cases, a claimant is required to attend recommended training. Regulations specify what constitutes good cause for refusing to attend a training recommended by DOES. See D.C. Code § 51-110(e); 7 DCMR § 314. DOES rarely recommends trainings.

The 2010 Unemployment Compensation Amendment Act added a provision allowing a claimant who has exhausted all regular unemployment benefits and is enrolled in and making satisfactory progress in a training program to be eligible for training extension benefits if the director determines the following criteria have been met:

The training program shall prepare the claimant for entry into a high demand occupation, if the director determines that the claimant has separated from employment in a declining occupation or has been involuntarily and indefinitely separated from employment as a result of a permanent reduction of operations at the claimant’s place of unemployment; or if the director determines the training will increase the employability of such claimant in the D.C. labor market;
The claimant is making satisfactory progress to complete the training as determined by the director, including the submission of written statements from the training program provider; and
The claimant is not receiving similar stipends or other training allowances for non- training costs.

The total amount of training extension benefits payable to a claimant shall not exceed 26 times the claimant’s weekly benefit amount of the most recent benefit year.

Overpayments

Workers sometimes are assessed overpayments. The most common situation is where the worker is declared eligible initially by the claims examiner, receives benefits for several weeks, but then is declared ineligible after a hearing. The benefits are considered to have been received in error and an overpayment is assessed.

DOES is prohibited from collecting any overpayment from future benefits if the benefits were received by the worker “without fault on his part” and recoupment would “defeat the purpose of [the unemployment act] or would be against equity and good conscience.” D.C. Code § 51-119(d)(1).

When an overpayment is assessed, DOES is supposed to send a notice of overpayment. This notice can be appealed.[46] In addition, DOES can waive any overpayment amount. Workers can present arguments for a waiver at the appeals hearing, but it is best to send in a letter requesting a waiver as soon as the worker knows there might be an overpayment. The letter requesting the overpayment should explain why the claimant is without fault and should provide details about the claimant’s financial condition to demonstrate that she is unable to repay the amount in question.

If an overpayment is assessed and upheld, DOES will accept payment plans for a fixed amount per month.

Practice Tip: Inquiries and waiver requests for UI overpayments can be directed to:

Benefit Payment Control
4058 Minnesota Ave NE
Suite 3100
Washington, D.C. 20019

Welfare to Work

The federal unemployment system allows states to exclude persons participating in work relief or work training programs. See 26 U.S.C. § 3309(b)(5). D.C. has adopted this exclusion.

The U.S. Department of Labor’s guidance, UIPL No. 30-96 (Aug. 8, 1996), states that for the exclusion to apply, the work relief or work training program must have the following characteristics:

The employer-employee relationship is based more on the needs of the participants and community needs than on normal economic considerations such as increased demand or the filling of a bona fide vacancy; and
The products and services are secondary to providing financial assistance, training or work experience to individuals…even if the work is meaningful or serves a useful public purpose.

In addition, work relief and work training programs must meet one or more of the following criteria:

The wages, hours and conditions are not commensurate with those prevailing in the locality for similar work;
The jobs did not, or rarely did, exist before the program began, and there is little likelihood they will be continued when the program is discontinued;
The services furnished, if any, are in the public interest and are not otherwise provided by the employer or its contractors; or
The jobs do not displace regularly employed workers or impair existing contracts for services.

[28] Undocumented workers are not eligible for unemployment compensation. See D.C. Code § 51-101(2). Benefits are calculated using Social Security numbers. Lawful permanent residents, however, are eligible for unemployment, as is anyone lawfully admitted for the purpose of their employment. Id. at § 51-109(9)(A).

[29] Watch out for employers who classify employees as independent contractors to avoid unemployment and other types of liability. See Rosexpress, Inc. v. DOES, 602 A.2d 659 (1992). For a discussion of the distinction between “employees” and “independent contractors” see the Wage and Hour chapter.

[30] The definition of “family member” mirrors the definition in the D.C. Human Rights Act. D.C. Code § 51-110(d)(5).

[31] See Bowen v. DOES, 486 A.2d 694 (D.C.1985).

[32] See Gomillion v. DOES, 447 A.2d 449 (D.C.1982); Gopstein v. DOES, 479 A.2d 1278 (D.C.1984).

[33] See Hockaday v. DOES, 443 A.2d 8 (D.C. 1982).

[34] See Freeman v. DOES, 568 A.2d 1091 (1990).

[35] See Hill v. DOES, 467 A.2d 134 (D.C.1983).

[36] See Bublis v. DOES, 575 A.2d 301 (D.C.1990).

[37] See Branson v. District of Columbia Dep’t of Empl. Servs., 801 A.2d 975, 979, n. 2 (D.C. 2002) (Employee must provide employer with a “medical statement” before resigning so that the employer will have the opportunity to verify the condition and to make necessary accommodations. A “medical statement” according to the regulations, is “a physician’s statement or equivalent documentation.”).

[38] Pregnancy, by statute, is treated like any other reason for leaving a job. See D.C. Code § 51-110(h); 7 D.C.MR § 311.11. There is no presumption that a pregnant person is physically unable to work.

[39] If, however, the employee engages in the misconduct because of domestic abuse she suffered, then she may still be able to collect unemployment benefits despite the misconduct. See E.C. v. RCM of Washington, 92 A.3d 305, 309 (D.C. 2014). To qualify for this exemption, an employee must demonstrate (1) that she suffered domestic violence that qualifies as an “intrafamily offense” under the Intrafamily Offenses Act and (2) that the domestic violence played a “substantial factor” in the involuntary termination. Id.

[40] If a worker finds a job at the same rate of pay, in most cases it will take five weeks to earn enough money to overcome the disqualification; however, the worker will still have to wait for 10 weeks to elapse before becoming eligible for unemployment again.

[41] But see Johnson v. So Others Might Eat, 53 A.3d 323 (D.C. 2012) (holding that a positive drug-test from off-duty marijuana use was, in and of itself, insufficient proof of misconduct). To prove misconduct, an employer must show some nexus between the off-duty drug use and the employment to prove a “reasonable and discernible effect on the employers’ ability to carry on its business or on the employee’s ability to perform his or her duties.” Id.

[42] Notwithstanding this 3-part test for rule violation, some ALJs will find misconduct even where the test is not met, relying on Hegwood v. Chinatown CVS, Inc., 954 A.2d 410, 412 (D.C. 2008).

[43] The only exception is where the employer is the District of Columbia or a non-profit organization that has opted-out of the experience rating system. See D.C. Code § 51-133.

[44] Extended benefits are allowed when the national unemployment rate is high and the number of claimants is significantly on the rise. Although the D.C. unemployment rate is higher than the national average (source: http://stats.bls.gov/lau), benefits have not been extended. See D.C. Code §§ 51-107(g)(1)(B)-(C) (calculating unemployment by taking the number of claimants for unemployment compensation divided by total number of people employed, the result must be greater than 120 percent of previous unemployment and greater than 5 percent). During recessions, look for the federal government to approve extensions and make sure that DOES complies with the extension.

[45] See Admasu v. 7-11 Food Store, 108 A.3d 357, 362 (D.C. 2015).

[46] Unless the overpayment is being recouped from future benefits, OAH is limited in its ability to waive any portion of the overpayment. The OAH may, however, assess the accuracy of the overpayment and adjust the overpayment amount accordingly. See District of Columbia Dep’t of Empl. Servs. v. Smallwood, 26 A.3d 711 (D.C. 2011).