Massive backlog of appeals from Employment Security Department affecting about 22,000 Washingtonians

After historic jobless claims in Washington State during the COVID-19 pandemic, the Washington State Office of Administrative Hearings (OAH) is now working on a massive backlog of appeals from the Employment Security Department (ESD).

As of May 6, there are 43,496 total open appeals at OAH, affecting about 22,000 people according to Brendon Tukey, the Division Chief Administrative Law Judge for Unemployment Insurance Appeals at OAH.

On average, unemployment appeals are taking about six months to be reviewed, transferred from ESD to OAH, and a hearing scheduled for a decision to be issued.

The appeals are filed by individuals who have been denied unemployment benefits or were given notices of overpayment from ESD.

"Once the pandemic got rolling, we saw doubling, tripling or even more of our monthly intake and it really built up," said Tukey. "Just a massive increase in the number of Washingtonians who were coming before us with unemployment insurance appeals."

To put the volume to perspective, Tukey said in all of 2019 there were roughly 29,000 appeals from ESD compared to 2021 when it soared to 89,000 appeals in the same time period.

"We’ve had to increase workloads and be creative about all of our processes in our office to streamline them as much as possible," said Tukey. "Thankfully, in recent weeks, we’ve seen the intake go down substantially. We picked up about 10,000 new cases that came in March, then in April we had about 5,500 cases come in. We’re finally getting to the point where we’re closing more appeals in any given month then we’re getting. That’s going to allow us to start cutting back on that backlog."

As a result, OAH is hiring more administrative law judges and support staff. Before the pandemic, the Office had about 45 administrative law judges and now there are 71.

If you are going through the appeal process, Tukey recommends visiting the OAH website and signing up for the Participant Portal to review documents that been uploaded for the case. You may also want to upload additional documents to be reviewed as part of your hearing. You can also call OAH at 1-800-583-8271 if you prefer to do this over the phone.

"Once we have a hearing scheduled, we send a notice of hearing in the mail. That’s when they’ll hear from us that the case is scheduled, when the case is going to be heard, how they can participate and all of that kind of useful information," said Tukey. "The judge will walk them through very carefully, asking them questions, getting their testimony, reviewing all the documents related to their case and then when the hearing has reached an end the judge will give them an opportunity to essentially make a closing argument."

'Nobody should be asked to pay back one cent,' advocates fight for blanket waiver on ESD overpayments

Since the pandemic started, there have been tens of thousands of people who received notices of overpayment from the Employment Security Department (ESD).

Bethany Singh of Renton is filing for an appeal after receiving an overpayment notice of $36,391. Singh said she was unable to work because her husband is immunocompromised and she needed to care for him and protect him during the height of the pandemic.

"You know I’ve never been in debt that much ever in my life," said Singh. "The stress levels, it’s intense, and it causes a lot of sleepless nights for me."

Rory O’Sullivan is offering people with significant overpayment notices a free half hour consultation at his firm Washington Employment Benefits Advocates. He was formerly an OAH Administrative Law Judge who heard these cases, then decided to go back to his roots of representing individuals facing challenges navigating unemployment issues and appeals. 

 "The most important thing is to be checking your ESD account. It’s important to read through the documents, even though they’re difficult to understand, look at the notices you’ve received understand how and why it is Employment Security Department has made that decision and then look for help," said O’Sullivan. "They can be confusing and complicated, but try to check it out, try to understand what they’re asking for and try to provide any information that they’re requesting."

O’Sullivan said a few good resources include WashingtonLawHelp.org, the Unemployment Law Project or a private practice attorney.

"We review all the documents, we interview the client, determine if there are other witnesses that might be called at the hearing, other documents they might want to submit. We go through a whole mock hearing so they’re prepared for the kinds of questions the judge might ask," said O’Sullivan.

Some hopeful signs, OAH said the number of new cases coming in has gone down substantially in recent weeks giving the Office a chance to cut back on the massive backlog.

ESD also passed an emergency rule that allows a new way of resolving cases called Brief Adjudicative Procedure (BAP). Cases are heard based on a written sworn statement instead of a traditional hearing where a person calls in.

"It’s a pilot program right now. We have five judges who are working on this program and we select simple cases that are of a type that lend themselves to being resolved on paper people can simply fill out a form," said Tukey.

Tukey said it’s saving everyone time and allows judges to handle a high volume of cases.