Board of Review Decision 352-NL2K-M7PR

Although the claimant was aware of the correspondence from DUA in her UI Online inbox and read it, she did not file a timely appeal because a DUA auditor informed her that he would review the determination to see if it was correct and that his decision would be final. Held that pursuant to 430 CMR 4.15(1), the claimant was entitled to a hearing on the merits of a determination denying her benefits, because the DUA agent’s statement directly discouraged her from filing an appeal.

Board of Review
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Boston, MA 02114
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Issue ID: 352-NL2K-M7PR

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) concluding that the claimant lacked justification for filing a late request for a hearing. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse. 

The claimant filed a claim for unemployment benefits with the DUA, effective September 7, 2025. On January 2, 2026, the DUA issued a determination (January 2^nd determination) disqualifying her from receiving benefits pursuant to G.L. c. 151A, § 25(e)(1). The claimant appealed the determination on March 11, 2026, 68 days after the DUA had issued its determination. On March 13, 2026, the DUA issued a Notice of Non-Monetary Issue Determination-Late Appeal, stating that the claimant did not have good cause for submitting her appeal after the statutory deadline (late appeal determination). Following a hearing on the merits, the review examiner affirmed the agency’s late appeal determination in a decision rendered on April 13, 2026. We accepted the claimant’s application for review.

The review examiner concluded that the claimant did not meet the criteria to file an appeal of the January 2^nd determination beyond 30 days pursuant to G.L. c. 151A, § 39(b), and 430 CMR 4.15 and was, therefore, not entitled to a hearing on the merits of that decision. Our decision is based upon our review of the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, the claimant’s appeal, and DUA’s electronic record keeping system. 

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant’s reliance on statements made by a DUA auditor did not meet the allowable criteria for filing her appeal more than 30 days after the January 2^nd determination was issued, is supported by substantial and credible evidence and is free from error of law. 

Findings of Fact

The review examiner’s findings of fact are set forth below in their entirety:

1. The claimant filed an initial unemployment claim effective the week ending September 13, 2025 (hereinafter 2025-01 initial unemployment claim). 
2. The claimant has elected to receive correspondence from the Department of Unemployment Assistance (DUA) by electronic communications.  
3. On January 2, 2026, the DUA electronically mailed to the claimant’s UI Portal a Determination denying the claimant benefits under Section 25(e)(1) of the Law in connection with her former employer’s establishment commencing the week ending August 2, 2025 and until she met the requalifying provisions of the Law. On the Determination, the DUA wrote in part: “If you disagree with DUA’s determination about your eligibility, you may ask for an Appeal Hearing by January 12, 2026. See the attached instructions.” The claimant received this Determination in her UI Portal. 
4. The DUA Web Session records correctly list the claimant access [sic] her UI Portal (eServices) on the following dates: January 8, 2026, January 9, 2026, January 19, 2026, January 20, 2026, January 21, 2026 and January 26, 2026. 
5. The claimant did read the January 2, 2026 determination that was issued to her by the DUA in her UI Portal. The claimant does not remember when she initially read the January 2, 2026 Determination in her UI Portal. The claimant may have read the January 2, 2026 [sic] in her UI Portal in January 2026, and the claimant does not remember the exact date that she read the January 2, 2026 determination in her UI Portal.
6. On or about January 10, 2026 or January 20, 2026, the claimant had a telephone conversation with an individual that informed the claimant that the claimant had been randomly selected for an audit to occur on her UI claim and that the individual worked for a third party. During this conversation, the individual informed the claimant that he would be reviewing her unemployment claim to determine if a redetermination was needed. During this conversation, the individual did interview the claimant about her employment at her prior employer’s establishment including the employer regarding the Determination issued on January 2, 2026. During this conversation, the individual performing the audit informed the claimant that she could appeal the Determination that was issued on January 2, 2026 but that his determination would be final.  
7. After the claimant had the telephone conversation with the individual identifying himself as performing an audit on behalf of the DUA, the claimant decided not to initially appeal as the individual said he would be looking over her UI claim to see if it was correct, the claimant was frustrated with the UI process, and the claimant was confused with the UI Process. 
8. The claimant went through two periods of time when she did not have cellular phone access due to financial constraints causing the claimant not to be able to access her UI Portal as the claimant was required to use an authenticator code from her cellular phone to gain access to the account. The claimant does not recall the exact dates she did not have access to her cellular phone due to financial issues. 
9. The claimant reached out to her State Representative Office regarding her unemployment claim and communicated with her State Representative Office.  
10. The State Representative office eventually advised the claimant to file an appeal in response to the January 2, 2026 Determination. 
11. On March 11, 2026, the claimant appealed the Determination that was issued on January 2, 2026 denying the claimant benefits under Section 25(e)(1) of the Law commencing the week ending August 2, 2025 and until she met the requirements of the Law. The appeal request was late. 
12. The claimant was late appealing the Determination issued on January 2, 2026 because of a combination of the claimant being informed by an individual identifying him as a DUA auditor in January 2026 that the claimant may appeal the determination but he would review her claim to see if any items had to be redetermined and that his decision would be final, the claimant initially gave up with the process as the claimant was feeling stressed by the UI process, the claimant was confused by the UI process, and the claimant’s cellular phone was not working for periods of time due to financial issues. 
13. On March 13, 2026, the DUA issued a Determination denying the claimant’s request for a hearing on the underline [sic] matter due to lateness under Section 39 and 430 CMR 4.15 of the Law. On the Determination, the DUA wrote: “The Department of Unemployment Assistance sent you a determination on January 2, 2026 about 352-N3M9-58FJ. We received your request for a hearing on March 11, 2026, 68 days after the determination was issued. DUA has determined you did not have justification for sending your appeal request late.” In response to Determination, the claimant appealed.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s findings of fact and deems them to be supported by substantial and credible evidence. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant is not entitled to a hearing on the merits of the January 2^nd determination.

The unemployment statute sets forth a time limit for requesting a hearing. G.L. c. 151A, § 39(b), provides, in pertinent part, as follows:    

Any interested party notified of a determination may request a hearing within ten days after delivery in hand by the commissioner’s authorized representative, or mailing of a said notice, unless it is determined…that the party had good cause for failing to request a hearing within such time. In no event shall good cause be considered if the party fails to request a hearing within thirty days after such delivery or mailing of said notice. . . .    

In this case, the claimant filed her appeal of the January 2^nd determination more than 60 days after it was issued. Findings of Fact 11 and 13. 

DUA regulations specify circumstances that constitute good cause for filing a late appeal within the meaning of G.L. c. 151A, § 39(b), and, under a few circumstances, allow a party to file an appeal beyond 30 days from the original determination. Specifically, 430 CMR 4.15 provides:

The 30 day limitation on filing a request for a hearing shall not apply where the party establishes that:    

(1) A Division employee directly discouraged the party from timely requesting a hearing and such discouragement results in the party believing that a hearing is futile or that no further steps are necessary to file a request for a hearing;     

(2) The Commissioner's determination is received by the party beyond the 30 day extended filing period and the party promptly files a request for hearing;     

(3) The Commissioner's determination is not received and the party promptly files a request for a hearing after he or she knows that a determination was issued.     

(4) An employer threatened, intimidated or harassed the party or a witness for the party, which resulted in the party's failure to file for a timely hearing.    

The express language of this regulation places the burden upon the claimant to show that one of these four circumstances applies. 

At some point after the DUA found the claimant ineligible for benefits under the January 2^nd determination, the claimant accessed her DUA unemployment portal and read the determination. Findings of Fact 3, 4, and 5. On or about January 10, 2026, or January 20, 2026, the claimant spoke with an individual who identified himself as a third-party auditor, and that he would be reviewing her UI claim. Finding of Fact 6. The DUA’s electronic record keeping system shows that, on January 7, 2026, the claimant received a letter from the DUA stating that she had been selected for a Benefit Accuracy Measurement (BAM) audit and was required to fill out a separation denial questionnaire. The DUA agent who sent the letter was a compliance officer for the DUA’s BAM Unit. However, during the hearing the claimant referred to him by his legal name or as the DUA auditor. Finding of Fact 12.

During the claimant’s conversation with the DUA auditor, she was asked questions about her prior employment including questions about the employer in connection with the January 2^nd determination. While interviewing the claimant, the DUA auditor informed the claimant that her account was being reviewed to determine if a redetermination was needed. He also informed the claimant that she could appeal the January 2^nd determination, but that his determination would be final. See Findings of Fact 6 and 12. Acting in reliance on this statement, the record indicates that the claimant believed that it was not necessary to appeal the January 2^nd determination. See Finding of Fact 7. 

Frustrated and confused by the UI process, the claimant reached out to her State Representative’s Office for guidance. Findings of Fact 7, 9, and 12. It was not until the claimant spoke with her State Representative’s office that she learned that she had to appeal the January 2^nd determination and that the DUA auditor had given her incorrect information. Findings of Fact 10 and 11.

As the claimant believed that requesting a hearing on the January 2^nd determination was not necessary based on incorrect statements made by a DUA auditor, we conclude that the record shows a DUA agent directly discouraged the claimant from taking further action on that determination. Accordingly, pursuant to 430 CMR 4.15(1), the claimant has shown that the 30-day limitation on filing a request for a hearing does not apply in this case. 

The review examiner’s decision is reversed. The claimant is entitled to a hearing on the merits of her January 2, 2026, Notice of Disqualification under Issue ID 352-N3M9-58FJ. 

Boston, Massachusetts                                              Date of Decision – July 17, 2026

1. Issue ID # 352-N3M9-58FJ.
2. While not explicitly incorporated into the review examiner’s findings, this portion of the claimant’s testimony is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).

Martha M. Wishart, Esq.
Chair

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

Visit this page to locate the nearest Massachusetts District Court.

Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

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