Emab 201.01  Rules for Adjudicative Proceedings.


          The appellate board’s review is confined to the record.  The appellate board does not receive or consider evidence and therefore rules relative to adjudicative hearings are inapplicable.  The proceedings before the appellate board are not those intended to be included under RSA 541-A:30-a.


Source.  #10394, eff 8-9-13




          Emab 202.01  Scope of Rules.  These rules shall govern procedure in appeals to the unemployment compensation appellate board.


Source.  #10394, eff 8-9-13


          Emab 202.02  Waiver or Suspension of Rules.  The unemployment compensation appellate board, upon its own initiative or upon the motion of any party, shall waive any requirement or limitation imposed by Emab 202 upon reasonable notice to affected persons when the proposed waiver would be more likely to promote the fair, accurate and efficient resolution of issues pending before the appellate board than would adherence to a particular rule or procedure.


Source.  #10394, eff 8-9-13


          Emab 202.03  Definitions.


          (a)  “Appeal tribunal”' means the appeal tribunal of the department of employment security constituted under RSA 282-A:53.


          (b)  “Board” means the unemployment compensation appellate board as provided by RSA 282-A:62. 


          (c)  “Chair” means the chair of the unemployment compensation appellate board as provided in RSA 282-A:62.


          (d)  “Close personal or family relationship” means a relationship by blood, marriage or other significant long-term relationship.


          (e)  “Commissioner" means the commissioner of the department of employment security as provided by RSA 282-A:108.


          (f)  “Department” means the department of employment security as provided by RSA 282-A:107.


          (g)  “Hearing” means the formal and official proceeding of the board in which the board receives legal argument from the parties based on the record below and applies the criteria at RSA 282-A:65.


          (h)  “Members” means the members of the unemployment compensation appellate board as provided in RSA 282-A:62.


          (i)  “Offer of proof” means an oral or written description of potential evidence.


          (j)  “Parties” means all interested parties as defined in RSA 282-A:42, III, as well as the commissioner as provided in RSA 282-A:66, I.


          (k)  “Vice-chair” means the vice-chair of the unemployment compensation appellate board as provided in RSA 282-A:62.


Source.  #10394, eff 8-9-13


          Emab 202.04  Appeals from the Commissioner's Decision or the Appeal Tribunal's Decision After Remand; Appeal to the Board; General Provisions.


          (a)  An appeal to the board shall be pursuant to the provisions of RSA 282-A:64, I.


          (b)  An appeal shall be in writing and be directed to the board.  The basis for such appeal shall be any one or a combination of the established grounds, as provided in RSA 282-A:65, I-V.


          (c)  All appeals shall be physically received or, if filed by mail, postmarked within 14 days of the date of mailing of either the commissioner's decision on a request for reopening, the final decision of the commissioner under RSA 282-A:95, or the appeal tribunal's decision on an appeal that has already been remanded by the board.


          (d)  Failure to file a timely appeal within the 14 calendar day period shall result in a dismissal of the appeal unless good cause is shown.


          (e)  For purposes of this section good cause means that:


(1)  Meeting the prescribed time limit would unduly burden the party or;


(2)  An extension is otherwise necessary to conduct a more effective hearing.


          (f)  The board shall issue notification of the appeal to all parties.


          (g)  The board shall provide a copy of any correspondence or motions received from a party in a particular matter to all other parties in the matter.  If said filing is deemed to be a motion, the board shall issue a deadline for objection(s) to the motion.


Source.  #10394, eff 8-9-13


          Emab 202.05  The Record on Appeal.  Pursuant to RSA 282-A:64, III, the commissioner shall provide the appellate board with a copy of all records related to the claim.  If technologically and administratively feasible, records shall be transmitted in electronic format upon request.


Source.  #10394, eff 8-9-13


          Emab 202.06  Hearings; General Provisions.


          (a)  The board shall decline to review any appeal if it finds the appeal presents no substantial question within the board's jurisdiction as set forth in RSA 282-A:65.  In such case the board shall issue an order of summary disposition.


          (b)  Unless summarily disposed of under Emab 202.06(a), a hearing shall be held after the receipt by the parties of the notice, the record on appeal including the recording of the hearing, and if required, the transcript of the proceedings.


          (c) A continuance or postponement requested by any party or by another individual appearing pursuant to Emab 202.06(e), shall be made in writing not less than 10 calendar days prior to the scheduled hearing date, except for good cause shown.


          (d)  For purposes of this section, good cause means that:


(1)  Meeting the prescribed time limit would unduly burden the party or;


(2)  A continuance or postponement is otherwise necessary to conduct a more effective hearing.


          (e)  A party may appear personally, through legal counsel, or by a duly authorized agent acting on a party’s behalf.  Pursuant to RSA 282-A:117-123, hearings shall be confidential in nature and attendance shall be limited to the parties and their authorized representatives, except upon agreement of the parties.


          (f)  Parties may submit argument in person or in writing, or both.  Any written argument or memorandum of law submitted 3 calendar days prior to the hearing shall be considered timely.


          (g)  Late submissions shall not be accepted, except upon a determination by the chair or vice chair that:


(1)  Meeting the prescribed time limit would unduly burden the party; or


(2)  A late submission is otherwise necessary to conduct a more effective hearing.


          (h)  If the appealing party fails to either attend a hearing or to advise the board that the party wishes to be heard solely by written submission, the board shall either:


(1)  Dismiss the case; or


(2)  Hear the case if it determines that there may have been error or the rights of any party would be violated by failure to proceed.


          (i)  If a party other than the appealing party chooses not to be present, the board shall proceed with the hearing.


          (j)  Oral argument shall be limited to 10 minutes on behalf of each party including questions from the board unless the board determines that failure to grant additional time would violate the rights of any party.  Unless otherwise directed by the presiding member, the appealing party shall be heard first.  The chair or vice chair shall allow a party to offer brief rebuttal argument if he or she determines that it will further clarify the issues.


          (k)  No evidence shall be received by the board in any hearing.  Any alleged newly discovered evidence shall be introduced by an offer of proof by the moving party to the board and the other parties.


Source.  #10394, eff 8-9-13


          Emab 202.07  Motions and Objections.  Any request for action by the board shall be by motion. All motions and objections thereto, other than those made during a hearing, shall be made in writing.  They shall state with particularity the grounds upon which they are made and shall set forth the relief or order sought.


Source.  #10394, eff 8-9-13


          Emab 202.08  Consolidation of Cases.  The board shall make an order for consolidation as justice and convenience requires when the parties agree and the cases:


          (a)  Have common issues of fact arising out of the same transaction or event; or


          (b)  Involve common issues of law.


Source.  #10394, eff 8-9-13


          Emab 202.09  Entry of Decision.


          (a)  Copies of all decisions and orders shall be provided to all parties.  The board shall retain a record of its decisions.


          (b)  All written decisions of the board shall include a notice of appeal rights which shall state that a party may file a motion for reconsideration or motion for a new hearing with the board within 20 calendar days of the date of mailing of the decision.


Source.  #10394, eff 8-9-13


          Emab 202.10  Requests for Reconsideration of Decision; Procedures for Filing Request; Form.


          (a)  Any party may submit a written request for reconsideration or a motion for a new hearing within 20 calendar days after the date of mailing of any decision by the board.


          (b)  A request for reconsideration or a motion for a new hearing shall:


(1) Identify each alleged error of fact, error of reasoning, or error of law which the moving party seeks to have reconsidered;


(2)  Describe how each error causes the board's decision to be unlawful, unjust or unreasonable, or illegal in respect to jurisdiction, authority or observance of the law, an abuse of discretion or arbitrary, unreasonable or capricious;


(3)  Concisely state the reasoning or legal conclusion proposed by the moving party; and


(4)  Include any argument or memorandum of law the moving party wishes to file.


Source.  #10394, eff 8-9-13


          Emab 202.11  Action on Request for Reconsideration; Rehearing; Exhaustion of Administrative Remedies.


          (a)  The board shall, within 30 calendar days rule on a motion for reconsideration or order a new hearing.  Reconsideration shall be granted only in those instances where the board believes it may have erred in its application of the criteria in RSA 282-A:65 to the record.  Rehearing shall be granted only in those instances where the board believes that further clarification of the law or further argument from one or more of the parties is needed to make a correct ruling.


          (b)  If the board does not deny or grant a motion for reconsideration or order a new hearing within 30 calendar days then, the board's original decision shall be considered adopted and the request for reconsideration or motion for  a new hearing  shall be deemed denied.  The board shall provide all parties with written notice that the board’s original decision has been considered adopted and the request for reconsideration or motion for a new hearing is deemed denied.


          (c)  In the event an interested party or the commissioner files an appeal with the New Hampshire Supreme Court, the department shall send a copy of the appeal to the board.


Source.  #10394, eff 8-9-13


          Emab 202.12  Transfer of Records.  After 60 days has elapsed from the date of the mailing of the final decision by the board, the records, transcript, and all other papers, except for the decision in the case, shall be transferred to the department.


Source.  #10394, eff 8-9-13


          Emab 202.13  Withdrawal of Appeal.  A party may withdraw its appeal at any time upon written request to the board.


Source.  #10394, eff 8-9-13


          Emab 202.14  Recusal of Board Member.


          (a)  Upon his or her own initiative, or upon the motion of any party, a board member shall for good cause recuse himself or herself from participation in any hearing.


          (b)  “Good cause” shall exist if a board member:


(1)  Has a direct interest in the outcome of a proceeding including situations where the appeal involves something in which the board member has a financial interest, or someone with whom the board member has a close personal or family relationship;


(2)  Personally believes that he or she cannot fairly judge the facts of a case; or


(3)  Would create the appearance of impropriety if the board member participates.


          (c)  Mere knowledge of the issues, the parties, or any witness shall not constitute good cause for recusal.


          (d)  In the event of a dispute as to whether good cause exists to require a recusal, the question shall be decided by 2 board members not subject to the recusal action.


Source.  #10394, eff 8-9-13


          Emab 202.15  Confidentiality of Hearings.  At the hearing, the presiding member shall deny access to any person not a party nor a proper representative to the specific proceeding before the board, except upon agreement of the parties.


Source.  #10394, eff 8-9-13


          Emab 202.16  Conduct.  Persons who are determined to be disorderly or are disruptive to the proceedings at any hearing shall be removed.


Source.  #10394, eff 8-9-13


          Emab 202.17  Written Transcript of Appeal Tribunal or Administrative Hearing Committee Hearing.


          (a)  The board, after making a determination that a written transcript of the appeal tribunal or administrative hearing committee hearing is needed, shall order the production of such transcript, in whole or in part, upon request of any party to an appeal or the board’s own initiative. 


          (b)  In determining whether to order production of such transcript, the board shall consider the following factors, on a totality of circumstances basis:


(1)  The party requesting the transcript has a hearing impairment;


(2)  The recording is difficult to hear in parts;


(3)  The case is particularly lengthy or involves complex issues; and


(4)  Any other good cause shown.


          (c)  A request for a written transcript shall include the reason(s) for the necessity of the transcript and whether the transcript should be in whole or in part.


          (d)  The board shall allow the use of a transcript prepared by an interested party, or agent of an interested party, from the department’s official recording of an appeal tribunal or an administrative hearing committee hearing if it finds the transcript to be accurate.


Source.  #10394, eff 8-9-13


                 Emab 202.18  Ex Parte Communication.


          (a)  For purposes of this section, “ex parte communication” shall mean any communication prohibited by RSA 541-A:36.


          (b)  Parties shall be prohibited from all forms of ex parte communication with members of the board while an appeal is pending, including, but not limited to, written, telephonic, voice-mail, facsimile, e-mail, and face-to-face communications.


Source.  #10394, eff 8-9-13




          Emab 203.01  Petition for Declaratory Ruling.  Since the appellate board does not have jurisdiction to issue declaratory rulings, petitions requesting declaratory rulings shall not be accepted by the board.


Source.  #10622, eff 6-10-14




          Emab 204.01  Petition for Adoption, Amendment or Repeal of Rules.


          (a)  Under the provisions of RSA 541-A:4, submission of a petition to adopt a rule, or to amend or repeal an existing rule, shall be made in writing to the appellate board, and contain the following information:


(1)  The full name and address of the petitioner;


(2)  The purpose of the petition such as adoption, amendment or repeal of a rule together with a detailed statement outlining the petitioner's request;


(3)  Reference to the statute or statutes upon which the petition for adoption, amendment or repeal of a rule is requested; and


(4)  A statement whether, to the best of the petitioner's knowledge, the issue which is the subject of the petition is:


a.  The subject of an administrative appeal or pending litigation; or


b.  The subject of a decision which has become final.


          (b)  The appellate board shall, within 30 days after receipt of a petition under this rule, either deny the petition in writing, stating therein the reason for denial, or shall initiate rulemaking proceedings.


          (c)  Reasons for denial shall include:


(1)  The adoption, amendment or repeal of the rule would conflict with a statute or existing rule;


(2)  The adoption, amendment or repeal of the rule would change a long-term effect on the regulated public more appropriately changed by the legislature; or


(3)  The adoption, amendment or repeal of the rule is deemed inappropriate for similar reasons.


Source.  #10622, eff 6-10-14




          Emab 205.01  Purpose.  The purpose of this part is to provide a uniform procedure for the conduct of public hearings at which comment from the general public will be solicited for evaluation and consideration by the appellate board relative to rulemaking.


Source.  #10622, eff 6-10-14


          Emab 205.02  Scope.  These rules shall apply to all hearings required by state law to be conducted by the appellate board at which public comment shall be solicited, except that they shall not apply to appellate board hearings pursuant to Emab 202.


Source.  #10622, eff 6-10-14


          Emab 205.03  Notice.


          (a)  A public comment hearing concerning rulemaking shall be commenced by placing notice of the hearing in the "Rulemaking Register" so that it shall appear at least 20 days prior to the hearing date.


          (b)  Notice for rulemaking public comment hearings shall comply with RSA 541-A:6, I.


          (c)  Nothing in these rules shall prohibit the appellate board from giving greater notice than the minimum set out in this part.


Source.  #10622, eff 6-10-14


          Emab 205.04  Media Access.


          (a)  Public comment hearings shall be open to the print and electronic media.


          (b)  The presiding member shall place limits on the activities of the media to avoid disruption in the following ways:


(1)  Limiting the placement of television cameras to certain locations in the hearing room; and


(2)  Prohibiting interviews from being conducted within the hearing room during the hearing.


Source.  #10622, eff 6-10-14


          Emab 205.05  Moderator.


          (a)  The hearing shall be presided over by a moderator, who shall be the chair or vice chair.


          (b)  The moderator shall:


(1)  Call the hearing to order;


(2)  Cause a recording of the hearing to be made;


(3)  Place limits on the media to avoid disruption as set out in Emab 205.04(b);


(4)  Recognize those who wish to be heard and establish the order thereof;


(5)  Limit the time for each speaker, as set out in Emab 205.06(b);


(6)  Remove or have removed any person who disrupts the hearing;


(7)  Adjourn the hearing; and


(8)  Provide opportunity for the submission of written comments.


Source.  #10622, eff 6-10-14


          Emab 205.06  Public Participation.


          (a)  Any person who wishes to speak on the issue or issues that are the subject of the hearing shall place his or her name and address on a speakers' list before the last speaker on the list has finished speaking.  All whose names appear on the speakers' list, as provided, shall be afforded reasonable time to speak at the hearing.  Reasonable time shall be determined considering the number of people who wish to be heard, and the time and the availability of the facility.


          (b)  The appellate board, through the moderator, shall:


(1)  Refuse to recognize a person who refuses to give his or her full name and address;


(2)  When a group or organization wishes to comment, limit the group to no more than 3 spokespersons, provided that the members who are present shall be allowed to enter their names and addresses into the record as supporting the position by the group or organization;


(3)  Revoke recognition of a speaker who speaks or acts in an abusive or disruptive manner; and


(4)  Revoke recognition of a speaker who refuses to keep his or her comments relevant to the issue or issues which are the subject of the hearing.


          (c)  Written comments may be submitted any time from the time notice has been published until the record has been closed by the moderator, which shall not be less than 5 business days after the hearing.


          (d)  In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceeds that number which can be heard within a reasonable period of time subject to facility availability and length of the hearing, the hearing shall be reconvened pursuant to RSA 541-A:11, III to afford such persons the opportunity to be heard.  Speakers may elect to submit written testimony in lieu of additional oral hearing.


Source.  #10622, eff 6-10-14




          Emab 206.01  Requests for Explanation of Adopted Rules.  Any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the appellate board including:


          (a)  The name and address of the person making the request; or


          (b)  If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.


Source.  #10622, eff 6-10-14


          Emab 206.02  Contents of Explanation.  The appellate board shall, within 90 days of receiving a request in accordance with Emp 206.01, provide a written response which:


          (a)  Concisely states the meaning of the rule adopted;


          (b)  Concisely states the principal reasons for and against the adoption of the rule in its final form; and


          (c)  States, if applicable, why the appellate board overruled any arguments and considerations presented against the rule.


Source.  #10622, eff 6-10-14





Specific State Statute the Rule Implements

Emab 202.01

RSA 282-A:62

Emab 202.02

RSA 541-A:22, IV

Emab 202.03

RSA 282-A:53; 62; 66; 107; 108

Emab 202.04

RSA 282-A:64; 65

Emab 202.05

RSA 282-A:64

Emab 202.06

RSA 282-A:65; 117-123

Emab 202.07

RSA 282-A:64

Emab 202.08

RSA 282-A:64

Emab 202.09

RSA 282-A:65; 66; 67

Emab 202.10

RSA 282-A:67

Emab 202.11

RSA 282-A:67

Emab 202.12

RSA 282-A:67

Emab 202.13-202.14

RSA 282-A:62; 64; RSA 541-A:38

Emab 202.15

RSA  282-A:117-123; RSA 91-A:6; 20 CFR 603.3-12

Emab 202.16

RSA 282-A:66

Emab 202.17

RSA 282-A:64

Emab 202.18

RSA 541-A:36

Emab 203

RSA 541-A:16, I(d)

Emab 204

RSA 541-A:16, I(c)

Emab 205.01 - 205.02

RSA 541-A:11

Emab 205.03

RSA 541-A:6, I; RSA 541-A:11

Emab 205.04

RSA 541-A:11

Emab 205.05

RSA  541-A:11, II

Emab 205.06

RSA 541-A:11, I, II, IV

Emab 206

RSA 541-A:11, VII