EVERYTHING YOU ALWAYS WANTED TO KNOW [ABOUT UNEMPLOYMENT COMPENSATION] BUT WERE AFRAID TO ASK. History and Background of Unemployment Compensation.

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1 EVERYTHING YOU ALWAYS WANTED TO KNOW [ABOUT UNEMPLOYMENT COMPENSATION] BUT WERE AFRAID TO ASK History and Background of Unemployment Compensation. The concept of providing unemployment benefits for individuals who have been displaced through no fault of their own has been a cornerstone of federal legislation since 1935, when the federal government enacted the Social Security Act. Among other provisions, that Act levied an unemployment tax by the federal government on employers. Two years later, the Georgia General Assembly following federal law, and ratified what was then called the Unemployment Compensation Law in In 1959, the Georgia statute was substantially rewritten and became known as the Employment Security Law, a title that remains to date. As you can see by the General Assembly s declaration of state public policy, Georgia is firmly entrenched in the belief that unemployment benefits are a right and should be provided unless it can be demonstrated that substantial reasons for denying benefits exist. The public policy of this State is declared to be as follows: economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the general assembly to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker or his family. The achievement of social security requires protection against this greatest hazard of our economic life. É the General Assembly therefore declared that in its considered judgment the public good and the general welfare of the citizens of this State require the enactment of this measure, under the police powers of this State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. Ga. L. 1937, pp. 806, 807. A. What Makes My Company Subject to Georgia s Employment Security Law? 1. You are a covered employer. You are a covered employer under the Georgia Employment Security Law ( Law ) if you: paid $1,500 or more in wages during any calendar quarter in the current or preceding calendar year; 1

2 employed at least one individual on each of twenty days in a different week in the current or preceding calendar year; are subject to the Federal Unemployment Tax Act ( FUTA ), which has the same requirements as (1) and (2) listed above; voluntarily elected coverage under the Law; or acquired the stock and/or assets of another business that is covered by the Law. 2. Your business provides covered services for wages. Covered Services Defined. In determining whether a service is covered, the Law looks closely at the type of employment and the wages paid. In a nutshell, Georgia s unemployment law covers just about any service performed for wages. Interestingly, the Georgia code has specifically identified the following categories of work as being included in the definition of employment: officer of a corporation; delivery drivers; traveling or local salespersons whose full-time job is to solicit orders from wholesalers, retailers, contractors, or operators of hotels, restaurants or similar establishments for merchandise to be used in the operation of their business; persons who provide domestic service in a private home, local college club, or local chapter of a college fraternity or sorority. In a similar vein, the Georgia code also has identified specific types of work that are deemed not covered by the Law. Some examples include: self-employed individuals; the father, mother, spouse or minor children (under the age of 21) of the individual owner of a sole proprietorship; partners, if the business is operated as a partnership; student nurses in the employ of a hospital or nurses training school; insurance agents or solicitors whose total wages are based solely upon commission; real estate salespersons whose total wages are based solely upon commission; students under the age of 22, if the work involved is a recognized part of a program which combines academics instruction with work experience; employees of a church or religious order; or inmates in a state prison or other state correctional institution. See O.C.G.A (n)(1) (12). There are a number of cases that involve whether a worker identified as an independent contractor is covered by Georgia s Employment Security Law. As many of you are well aware, the Georgia Department of Labor takes the position that most, if not all, workers are considered employees and place a substantial burden on an employer to prove otherwise. As a result, both the Department of Labor and the Internal Revenue Service have set forth some fairly stringent criteria for establishing whether a worker is truly an independent contractor, and therefore not covered by unemployment laws. At a minimum, a DOL will be looking for the following factors to justify independent contractor status: (1) the individual performing the services is absolutely free from the control, direction, or guidance of the performance of the services under a contract of hire, based both on the contract and the actual practice between the parties; (2) the individual is performing services outside the usual course of the employer s business; and 2

3 (3) the individual is customarily engaged in an independently-established trade, occupation, profession, or business. If you are unsure as to whether a worker in your organization is truly an independent contractor, we strongly recommend that you seek counsel to ensure that your company may not be liable for benefits that must otherwise be provided to the worker. Wages Defined. For purposes of unemployment insurance, wages have been defined as: all remuneration for personal services rendered including commissions, bonuses, and the cash value of all remuneration in any medium other than cash. Salaries, commissions and bonuses are determined before deductions. Wages also include: (1) the amount actually drawn by an employee from a drawing account; (2) advances against commissions, including advances paid to insurance agents; (3) board and lodging furnished an employee by an employer; (4) vacation pay and regular pay continued through vacation periods; (5) tips and gratuities (taxable to the same extent as FUTA); (6) sickness and accident disability payments (not including payments received under worker s compensation) made directly to the employee by the employer and payments made by a third party provider; (7) wages payable to an employee but unpaid where the employer has been deemed bankrupt; and (8) payments into an approved plan for deferred cash arrangements under Section 401(k) of the Internal Revenue Code. The following payments are not considered wages for the purpose of determining coverage under Georgia s Employment Security Law: the employer s share of contributions to a retirement or life insurance plan; sickness or accident disability payments received under workers compensation law; payments by a real estate broker to a real estate salesperson exclusively for the sale of real property; payment by an employer or an employee s share of FICA, where such payment is part of compensation for domestic service or agricultural labor; remuneration paid for services by an illegal alien; and 3

4 amounts paid as allowance or reimbursement for travel or other business related expenses. O.C.G.A et seq. B. What is a Taxable Wage and What is Meant by the Term Experience Ratings? If you are an employer who is covered by Georgia s Employment Security Law, then you are required to pay unemployment taxes into an account that has been set up for your company. The taxes are paid solely by the employer without deduction from an employee s wages. The taxes are deposited into the State Unemployment Trust Fund and are maintained by the State. Most employers who are liable for state unemployment taxes also are liable for the federal unemployment tax (FUTA). FUTA is taxed at a flat 6.2% of the taxable base wage and is paid directly to the Internal Revenue Service. The current federal wage base is the first $7,000 paid to an individual during the calendar year. Employers who pay their state unemployment taxes on a timely basis (once per quarter) are given a substantial credit against the total FUTA taxes due. In Georgia, the state taxable wage base is the first $8,500 paid to an individual during the calendar year. It is from this fund that monies are used to pay unemployment benefits to eligible employees. There is not flat tax rate in Georgia. The tax rate here is determined by the employer s experience rating (as explained below). Each employer that is subject to Georgia s Employment Security Law is required to submit quarterly contributions and wage reports on or before the last day of the month following the calendar quarter covered by the report. Failure to timely provide contribution and wage reports will result in an employer s ineligibility for a reduced rate and may result in the Commission assigning the highest rate available for the rate year. An employer s contributions (taxes) are based on their experience ratings. Experience rating is a system which relates the employer s tax rate to the cost associated with providing unemployment benefits to the employer s employees. In other words, an employer who has fewer hits on its unemployment account will have fewer costs relating to the administration and maintenance of that account, and therefore, is eligible for a lower tax rate. Said another way, the more an employer has employees tapping into its unemployment benefits, the greater the likelihood that the employer s tax rate will increase. A Claim Has Been Filed Now What? A. Establishing Eligibility. In Georgia, the local offices of the Department of Labor ( DOL ) are responsible for administering unemployment claims. Once a claim has been filed, the DOL must make two initial determinations before deciding that a claimant is eligible for unemployment benefits. The DOL considers this determinations monetary and non-monetary. The monetary inquiry concerns certain the DOL s ability to establish certain wage-related information. Specifically, the DOL must determine the following: 1. the claimant must have earned qualifying wages in at least two of the four quarters of the base period of the claim. The base period is defined as the first four of the 4

5 last five completed calendar quarters immediately proceeding the effective date of a claim for unemployment benefits; 2. the claimant must have, for the four quarters, wages equal to or exceeding one and one half times the high quarter wages in the claimant s base period. In addition, the claimant must have earned a total of $1,296 in the two highest quarters of the base period; and 3. three base period wages must have been earned with an employer that is actually covered by Georgia s employment security law. Presuming that the three above factors are met for establishing a valid claim, the DOL will then establish the weekly benefit amount by dividing the two highest base period quarters by 48. In Georgia, depending upon the wages previously earned, the employee may be eligible for unemployment benefits from a minimum of 9 to a maximum of 26 weeks. The maximum benefit amount and the length of period may vary from state to state. Consequently, if your company has employees in states outside of Georgia, then you will need to confirm with that state s unemployment benefit administrator how benefits are determined and the maximum amount of time that an employee is eligible for such benefits. Once, the DOL has made the monetary determination, the Department also must determine that the claimant meets the non-monetary criteria. In particular, the claimant must be: 4. totally or partially unemployed through no fault of his or her own; physically able to do some type of work. It is not a requirement that the claimant be able to perform the same type of work, duties, or have the same responsibilities that he/she had in the last job. It is only required that the claimant be able to perform work that is available within the community or surrounding area for which wages may be paid; 5. the claimant must be available for work and have no personal restrictions such as lack of child care, lack of transportation or other restrictions that would interfere with his/her ability to immediately accept employment. Where a claimant previously worked in an industry that regularly maintained three shifts, the claimant s availability for work would include his/her willingness to accept work on at least two of three shifts where the claimant formally worked in an industry where shift work was required; and 6. the claimant must be actively involved in seeking full time, continuous work in order to retain employment benefits. Provided that the claimant can make a showing that he or she has met the requirements for both the monetary and the non-monetary determinations, unemployment benefits will be granted by the DOL. Employers also should be aware that individuals who volunteer for a layoff or a reduction in force will be considered unemployed due to lack of work when the employer has accepted such volunteers. To be eligible, however, the employee must remain with the employer while work is available and can not voluntarily resign prior to the agreed upon termination (or layoff) date. 5

6 Sometimes questions arise concerning whether a retired employee is eligible for unemployment insurance benefits. Generally, unemployment benefits are not available for a retired employee. In some cases, however, retirees will apply for unemployment compensation, and the DOL must make a determination as to the retiree s eligibility (this is especially significant in cases of forced retirements pursuant to a workforce reduction or layoffs). The amount of unemployment benefits due a retiree may be affected by the amount an individual receives from a Company pension plan or other retirement pay. If you have a retired individual whose is also making a claim for unemployment benefits, the company should report any payments made under a pension or retirement plant to the claims office where the claim was filed, including whether the employee, the company, or a combination of them both made contributions to the plan. B. Defending Against Unemployment Claims. As you will recall from the beginning of these materials, it has been a long-standing philosophy in Georgia that employees who are terminated from employment through no fault of their own are presumed qualified for unemployment benefits. Assuming an employee has met the eligibility requirements for unemployment benefits, the burden then rests with the employer to show that the employee should be disqualified from such eligibility based on a limited number of factors as set out by the Georgia Code. Consequently, in order to demonstrate that the employee should be disqualified from benefits (and thus, minimize your company s experience rating), your company will have to prove by a preponderance of the evidence that at least one of the following circumstances justified termination of employment: 1. The employee voluntarily leaves employment without good cause. An employee who left his or her most recent employment voluntarily without good cause will be disqualified for benefits for the duration of the unemployment period. The burden of proof is on the employee to show good cause connected with work for voluntarily quitting. In Georgia, good cause is typically related to terminations based on unlawful prohibited criteria such as harassment or discrimination; cases of whistle blowing; or circumstances where the employee has been asked to commit an illegal or immoral act. In addition, discharge has been deemed inappropriate where the employee exercised a protected right such as filing a claim with the Department of Labor, the Equal Employment Opportunity Commission, or the National Labor Relations Act. 2. An individual may disqualified from receiving benefits if he or she was discharged or suspended for failing to obey rules, orders, or instructions. A related disqualifying event is failure to discharge the duties for which the employee was employed. Under either of these factors, the Department of Labor is bound is to consider the following: a) the manner in which the rules, orders, instructions or duties were made known to the employee including, but not limited to, whether the rules were posted or otherwise published prior to the incident causing discharge; b) whether a violation of the rules, orders, instructions or duties has occurred; c) whether the employee failed to discharge the duties for which he was employed; 6

7 d) whether the violation or the failure to discharge duties was a result of the employee s fault, intentional conduct, conscious neglect, or misconduct as defined by the DOL s regulations; e) the extent of the infraction; and f) the impact of the infraction on the employer s business or operations. Rules of Georgia Department of Labor, (2)(b). It is important to note that if an individual can show that he or she made a good faith effort to perform the duties for which he or she was hired but simply was unable to do so, the DOL will not disqualify the individual from benefits. Likewise, the DOL is trained to not disqualify an individual if the individual did not intentionally fail or consciously neglect to perform his or her job duties. Disqualification has been deemed inappropriate in cases where the discharge occurred as a result of a rule violation where the claimant was not aware or had not been informed of the rule or did not have common knowledge of the rule. 3. An employee may be disqualified from receiving benefits as a result of being terminated or suspended for violating an employer s drug free work place policy. In order to deny benefits for discharge under this factor, the employer must show that it had reasonable grounds for the drug testing. Reasonable grounds could include, for instance, a work place accident or injury or the loss of property as a result of a work place accident. Where an employer has reasonable grounds for drug testing and the employee quits courts have that the employee has quit without good cause, and therefore is ineligible for unemployment benefits. Similarly, when an employee is discharged for refusing to submit to a drug test, the employee is deemed discharged for good cause, and also is ineligible for unemployment benefits. However, before the DOL will deny discharge after failing a drug test, the evidence must show that: a) proper testing and confirmation procedures were followed; b) the individual tested positive; and c) preponderance of the evidence indicates that the individual is actually impaired by the use of drugs. Being under the influence of alcohol in the work place constitutes a disqualifying condition. By contrast, the DOL rules state that an individual is discharged for failing to appear for work as a result of the use of alcohol is discharged under disqualifying conditions unless the individual establishes that the absence was a non-volitional act resulting from an active state of alcoholism. Rules of the Georgia Department of Labor, An individual may be disqualified from receiving benefits if he or she refuses suitable work without good cause. Circumstances under which disqualification occurs here are typically shown in the context of reductions in force or layoffs. For instance, if an employer is eliminating an employees position but has offered the employee another position under the same general terms and conditions as the position be 7

8 eliminated, and the employee refuses to accept the alternative position, then the employee may be disqualified from unemployment benefits. 5. Excessive absenteeism or tardiness. The Commission shall consider the following six factors in determining if disqualification is justified for absenteeism or tardiness: a) the employee s policy on absenteeism or tardiness and whether the policy was communicated to the employee. b) whether the employee had been absent or tardy on prior occasions and had been warned about the absenteeism or tardiness; c) what the employer s policy is with respect to notice of absence or tardiness and whether the employer was properly notified by the employee; d) the reason (s) for the absenteeism or tardiness; e) the frequency of the absenteeism or tardiness; and f) whether, upon consideration of the totality of circumstances, which surrounded the absences or tardiness, the claimant was at fault in the discharge. Rules of Georgia Department of Labor, (2)(a). Employers should be particularly aware that the DOL will look at the triggering event to determine whether the absence or tardiness was protected by law even where prior unexcused absences or tardiness may have been present. In addition, employers also should keep in mind that the DOL will not disqualify an individual from benefits where the absenteeism or tardiness was due to illness of the claimant or the claimant s family member unless the claimant has failed to notify the employer. 6. Employee has been involved in conduct which results in property loss or damage. Under these circumstances, the Department of Labor will consider the following: a) whether the behavior that caused the loss or damage was due to the negligence on the part of the employee or is due to intentional conduct on the part of the employee; b) whether the claimant had been warned (note: the warning factor is not essential to disqualification, but shall be weighed in light of the circumstances); c) the extent and amount of the loss or damage; and d) any other aggravating or mitigating circumstances. Rules of Georgia Department of Labor, (2)(c). In order for the Department of Labor impose a disqualification under the property loss or damage factor, it must be determine that the employees act was intentional and that there was a loss or damage amounting to $2,000 or more. Rules of Georgia Department of Labor, (c). An employee also may be 8

9 disqualified from unemployment benefits if it can be shown that the employee engaged in intentional conduct that results in the employee s discharge for theft of property, goods or money valued at over $100, or for sabotage or embezzlement. 7. Employee has been involved in intentional conduct, which results in bodily injury to the employer, follower employees, customers, patients, by-standers or the eventual consumer of products. Under such circumstances, the Department of Labor will consider the following factors in determining whether disqualification is justified: a) whether the act was intentional; b) the extent of the physical harm resulting from the act; c) any other aggravating or mitigating circumstances (e.g., pass provocation; the warning factor though not essential may be weighed in light of the circumstances); and d) the foreseeability of the injury as a result of the act. 8. The employee has been involved in a physical fight or threatening behavior in the work place or while on the job. The Department of Labor shall consider the following: a) whether the employee used a weapon; b) whether anyone was injured; c) the extent of any provocation to or threat to the discharged employee; and d) whether the employee and been involved in fighting on the premises on prior occasions and had been warned about the fighting. Rules of the Georgia Department of Labor, (2)(e). 9. Falsification of employment records. The DOL has determined that the following factors would be considered when deciding if disqualification of benefits is justified: a) whether the omission/misstatement was intentional; b) whether the omission/misstatement was material; and c) the information or documentation with respect proof of citizenship as required by or in compliance with the Federal Immigration Reform and Control Act. It is important to note that an individual may be disqualified from benefits for an entire benefit period (365 days from the date a claim was filed) unless it can be shown that the individual has worked for a specified period of time and has earned eligible wages during that period of time, and has become unemployed through no fault of the employee. 9

10 The Separation Notice. As indicated above, Georgia s Department of Labor considers very few factors as justification to disqualify unemployment benefits. It, therefore, becomes vitally important that employers provide accurate, detailed, and timely information concerning the reason(s) for discharge if the employer believes that the circumstances justify no unemployment benefits. How can this be done? First, employers should understand that at-will employment does not really mean at-will employment. Many employers in Georgia operate under the notion that, because Georgia is an at-will state, meaning any employee may resign or be discharged with or without reason, and with or without prior notice, then the company need not track and document the employee s history with the employer. Given the considerations that are imposed upon a DOL claims examiner by the agency s rules and regulations, it is clear that the simply providing your word will be insufficient to establish that disqualification from benefits is justified. In light of those factors, employers can take some very simple steps in overcoming the presumption of the employee s qualifications for benefits. Using good and consistent employment practices such as: Providing well defined, up-to-date job descriptions; 7. Having applicants complete an application which they sign and affirm that the information contained therein is true and accurate; 8. Having applicants complete a test of their skills that are necessary for the position; 9. Providing workplace rules and/or employee handbooks; 10. Implementing regular performance reviews; 11. Implementing consistent disciplinary standards; 12. Suspending rather than firing employees; and 13. Implementing exit interviews to identify trends in employment related problems so that the problems can be headed off before the next employee has to be discharged. The Separation Notice. Employers in Georgia are required to give each terminated employee a signed, completed Department of Labor Form 800 Separation Notice. Among other information, the employer must provide information concerning the dates of the employee s employment with the Company, the reason for leaving your employment, any severance or separation payments made upon discharge, and the name, title, and signature of a company official. You will note that on the bottom of the Separation Notice, the person on behalf of the company that is signing the form is certifying that the above worker has been separated from work and the information furnished hereon is true and correcté. Employers should be aware that providing untrue or inaccurate information on the form could subject the employer to liability for a misdemeanor. The information provided on the Separation Notice regarding reason for discharge is the first line of defense in an employer s challenge to an employee s claim for unemployment benefits. The information contained there should be factually accurate and as detailed as possible. In recent 10

11 months, the DOL has been requiring employers to complete a second form which allows for greater detail regarding discharge. If you are challenging a claim for benefits, the company should be prepared to provide an accurate, detailed outline of the events leading up to the employee s discharge. At a minimum, the documentation of the terminating event should include: 14. The names and titles of the individuals involved in the terminating incident; 15. A description of the date, time and location of the events leading to the termination circumstance; 16. A description of the triggering event for termination and its result; 17. A statement as to the impact of the employee actions on the company s operation or business and the signature of the person who prepares this documentation as well as the names of any witnesses or other involved parties. In addition, managers and supervisors who are responsible for providing such documentation should be trained to provide factually objective rather than conclusory subjective statements of the events. Below are some examples of common reasons for discharge and the use of stronger, more objective language in explaining the reason for discharge: Ex. 1: Rather than saying that the employee had excessive absences or tardies, more helpful documentation would read, the employee was late arriving or departed early on five different occasions in the ten days prior to his discharge. Ex. 2: Rather than stating that the employee was insubordinate and had a poor attitude, a more helpful statement maybe, the employee was asked on two occasions to discuss changes to her duties and responsibilities. The employee refused to meet with her supervisor, she put forth minimal effort in completing the task assigned to her and she made mistakes that could have been avoided by paying attention to detail. These circumstances forced her supervisor and or other employees to correct and complete tasks that had been assigned to the employee. Ex. 3: Rather than simply stating that the employee threatened bodily harm to a fellow coworker, a more helpful statement should read without any justifiable reason and without any apparent provocation, employee shoved a co-employee and told him that he would beat him to a pulp. Employers should not be afraid to communicate the true reason for the employee s termination. Often times, an employer will provide only one reason for termination when several other reasons may have been present and impacted the decision to terminate, or the employer will provide a reason that is inconsistent with termination in order to allow the employee an opportunity to receive benefits. In addition, sometimes an employer will provide a reason for separation that is inconsistent with the actual reason for separation because the employer fears the employee s response. Don t be intimidated into filing inaccurate information for any of these reasons. One of the more common consequences of failing to provide a full and complete explanation of discharge occurs 11

12 when the employer is later having to defend its reasons for discharge before either an administrative agency such as the Equal Employment Opportunity Commission or a court of law. In those circumstances, the first question that the agency or the court will ask is, What was the expressed reason for discharge? in order to determine if the reasons have changed, thereby suggesting that the Company has something to hide. If the reason provided on the Separation Notice is inconsistent with the reasons later expressed by the employer for discharge, then the employer is placed in the untenable position of fighting an uphill battle to demonstrate its credibility and the reasonableness of its decision. In other words, it becomes a more difficult for an employer to convince a DOL hearing officer, EEOC investigator, judge or a jury that it had legitimate reasons for discharging any employee where the Separation information first provided to the DOL does not contain the same reason for discharge in another proceeding. Other problems that employers may face with Separation Notices concern the use of the company s payroll services also handling unemployment claims. In general, and under most circumstances, many payroll services can be good at handling unemployment claims. The problem, however, is that these companies typically provide their services to thousands of businesses, and in turn, are responsible for thousands of employees. Unfortunately, their understanding of the facts surrounding an employees discharge may be lost in the numbers and relayed to the Department of Labor inaccurately or untimely. In other cases, the payroll service may make a misstatement or may fail to state the reason for discharge in the most legally defensive way possible. For example, an employee who fails to return to his or her position following the expiration of a leave of absence should be terminated on the basis of job abandonment rather than voluntary resignation. Under the circumstances described, job abandonment is a clearer expression of what the employee has failed to do rather than the implication that the employee returned and somehow affirmatively took steps to resign his or her position. IV. What Do We Do in the Event of an Unfavorable Decision? As stated earlier, once an employee files a claim with the local office of the Department of Labor, the claims examiner will determine eligibility based on the monetary and non-monetary factors mentioned above. Once that determination is made, the claims examiner will then decide if the reason for discharge constitutes a legitimate disqualification from benefits. In the event of an unfavorable decision, there are two levels of appeal with the agency. The first allows for an appeal before an administrative hearing officer. If benefits are granted, the employer has the right to appeal that decision to the hearing officer within 15 days of the date of the claim s determination to appeal that decision. Likewise, if benefits are denied, then the claimant also has 15 days from the date of the decision to appeal that decision to the hearing officer. Shortly after receiving notice that an appeal has been filed, both the employer and the claimant can expect to receive a Notice of Hearing. That notice typically will include the date, time and location of the hearing. The Notice of Hearing also will indicate that Promptness is Required and employers should note that the hearing officer will wait only 10 minutes for an appealing party to appear. If the appealing party is more than 10 minutes late, the appeal will be dismissed and a non-appearance decision will be issued. In addition, it should be noted that, unless it can be shown for good cause (typically an emergency) the hearing will be conducted at the date and time provided on the notice. The Administrative Hearing Officer will allow testimony and evidence during the one-hour 12

13 session. A tape recording is made of testimony given under oath from the parties and their witnesses. The hearing officer will not consider hearsay in making a determination, and therefore, witnesses with first-hand information should be prepared to participate in the hearing. Either party at the administrative hearing may have legal counsel present. In the event of an unfavorable decision by the Administrative Hearing Officer, the party against whom the decision was rendered has a second level of appeal. Within 15 days from the date the hearing officer s decision was issued, the aggrieved party may file an appeal with the Department of Labor s Board of Review. The Board of Review is a three member panel appointed by the Governor. It is the second and final level of appellate review within the agency. At the Board of Review level, no party is allowed to provide any new evidence, testimony, or documents in support of the party s position. Once the Board of Review issues its determination, the party against whom an unfavorable decision is rendered has the option of appealing the case to the Superior Court of the county in which the defendant resides. An appeal may be withdrawn at any level and at any time by the appealing party by submitting a written withdrawal to the Georgia Department of Labor Appeals Section. 13