Last year we began to request statistics, via OPRA, from the Department of Labor in order to compare results from our firm with the overall averages of unemployment claimants filing appeals. For the second year, we are releasing the Department of Labor statistics, as well as our statistics. The summary is as follows:
Department of Labor Statistics
Fact Finding Hearings – Not Available
Appeal Tribunal Hearings
Calendar year 2013 2014 (through September)
Claimant appeals favorable – 27% 29%
Employer appeals favorable – 36% 33%
Board of Review Appeals
Claimant appeals favorable – 27% 20%
Employer appeals favorable – 55% 46%
Appellate Division Appeals (compiled from LEXIS, not OPRA)
Claimant appeals favorable – 15% (7 of 48) 26% (29 of 111)
Employer appeals favorable – 50% (1 of 2) 0% (0 of 3)
We have also compiled our firm’s statistics for calendar year 2014.
Alan H. Schorr & Associates Results:
(Our statistics of past performance do not guarantee any future performance)
Calendar year 2013 Calendar year 2014
Fact-Finding Hearings – 90% (27of 30) 95% (60 of 63)
Appeal Tribunal Hearings – 74% (34 of 46) 77% (53 of 69)
Board of Review Appeals – 27% (3 of 11) 76% (13 of 17)
Appellate Division Appeals – 87.5% (7 of 8) 80% (4 of 5*)
* The one loss we appeared for oral argument only, the brief was pro se by Claimant.
Analysis
There are some pretty significant trends to note here. For the second straight year, our record on reversals at the Appeal Tribunal was almost triple that of the average of all Appeal Tribunals. The safest way to ensure unemployment benefits remains retaining an attorney for the Fact Finding hearings, where we were successful 95% of the time.
The most dramatic shift occurred at the Board of Review level. The percentage of successful appeals on all Board of Review appeals dropped significant, but inside the numbers show a distinct and dramatic change. Beginning in June 2014 the statistics for successful appeals on both sides, claimant and employer suddenly plummeted. By September 2014, only 10% of claimant appeals were reversed and only 29% of employer appeals. This sudden shift may have been caused by a change in internal policy or by the recent change in personnel at the Board of Review, but the shift is too dramatic to be a coincidence.
While the average of total successes at the Board of Review plummeted this year, our success rate skyrocketed. While last year we only succeeded in 27% of Board of Review appeals, this year 76% of our appeals were either reversed or remanded. Of course, some of those remands resulted in losses at the Appeal Tribunal, which were still 77% successful, despite the losses on remand.
There were 29 claimant favorable reversals at the Appellate Division this year. Last year’s total of 7 reversals was the most we ever remembered in a year, so having that record number then quadruple demonstrates that the Appellate Division is taking its decision in Silver v. Board of Review seriously and is no longer as hesitant to reverse the Board of Review. There may also be a correlation between the Board of Review rubber-stamping more appeals and the Appellate Division reversing or remanding more Board of Review decisions.
We had a very successful year at the Appellate Division, including significant victories in Dye v. Board of Review (negligence in medical treatment does not constitute misconduct); Lin v. Board of Review (failure to give notices and decisions in the claimant’s native language violates due process where the claimant is not bi-lingual); and Radich v. Board of Review (Board of Review’s notice violates due process because it does not provide adequate information about how to respond to employer appeals).
All in all, the statistics for 2014 confirm the importance of having counsel at every level the increasingly complicated and contentious unemployment process.