Hearing procedures for state plans

The Department of Labor proceeds first at the hearing unless the administrative law judge orders otherwise. See 1955.40(a)(1).

• This means the Department will open the case by presenting its evidence and arguments first unless the judge directs a different order.

The Department of Labor has the burden to sustain the contentions in the notice of proposed withdrawal, but any party that asserts a particular factual proposition must prove that fact. See 1955.40(a)(2) and 1955.10(b)(1).

• Practically, the Department must establish the overall case in the notice, and if a state or other party claims a fact (for example, a date, compliance action, or technical detail), that party must support it with evidence.

A party is entitled to present its case or defense with oral or documentary evidence, to submit rebuttal evidence, and to conduct cross-examination needed for a full and true disclosure of the facts. See 1955.40(b)(1).

• You can call witnesses, offer documents, respond to opposing evidence, and cross-examine opposing witnesses as necessary to clarify facts.

Yes — the administrative law judge may exclude any oral or documentary evidence that is irrelevant, immaterial, or unduly repetitious. See 1955.40(b).

• Prepare focused evidence that directly bears on the issues to avoid exclusions for irrelevance or repetition.

Yes — the testimony of a witness must be given under oath or affirmation administered by the administrative law judge. See 1955.40(b)(2).

• This makes the testimony part of the official record and subject to penalties for false statements.

A party should briefly state the grounds for the objection on the record when the objection is made; the judge's ruling on the objection must appear in the record and only objections made before the judge can be relied on later in the proceeding. See 1955.40(b)(3).

• Be concise and specific when objecting, and ensure the objection and the judge's ruling are entered into the record so you preserve the issue for appeal or review.

No — a formal exception to an adverse ruling is not required. See 1955.40(b)(4).

• You still must make timely objections on the record as required by 1955.40(b)(3).

Official notice is the judge’s acceptance of certain facts into the record without formal evidence, typically matters of common knowledge or areas where the Department is presumed expert; parties must be given notice and an opportunity to rebut those matters. See 1955.40(c).

• If the judge intends to officially notice a fact, you should expect the judge to announce it at the hearing or in the decision and give you a chance to show the fact is incorrect.

The party should make a specific offer of proof, orally or in writing, stating what it expects to prove by the witness’s answer; this preserves the substance of the excluded testimony for the record. See 1955.40(d).

• Ensure the offer is detailed so a reviewing authority can see what evidence was excluded and why it matters.

Yes — written offers of proof, properly identified, are retained in the record so they are available to any reviewing authority. See 1955.40.

• Keeping the offer in the record preserves the excluded evidence for appeals or review and shows what the party attempted to prove.

Yes — hearings are stenographically reported, and copies of the transcript may be obtained by parties and the public upon payment of duplication costs to the Department of Labor. See 1955.40(e).

• Request transcripts promptly and be prepared to pay the actual duplication cost established by the Department of Labor.

Corrections to the official transcript can be made only for errors affecting substance and only by order of the administrative law judge or by written stipulation of all parties; if parties disagree, the judge will decide the corrections. See 1955.40(f).

• Corrections may be interlineated so the original text remains visible.

When parties disagree about corrections, the administrative law judge determines which corrections to make and issues an order reflecting that decision. See 1955.40(f).

• You should present proposed corrections with supporting reasons so the judge can resolve disputes efficiently.

No — corrections may be interlineated in the official transcript so as not to obliterate the original text. See 1955.40(f).

• This preserves the original record while showing the agreed or ordered substantive correction.

Yes — a party may submit rebuttal evidence to respond to the other side’s case as part of its right to present its case or defense. See 1955.40(b)(1).

• Plan to reserve time and witnesses for rebuttal to address unexpected factual assertions.

Evidence that adds nothing new and merely repeats earlier testimony or documents can be excluded as "unduly repetitious." See 1955.40(b).

• Avoid calling multiple witnesses to repeat the same facts; instead, identify unique testimony or corroborating documents that add probative value.

Yes — rulings on all objections must appear in the record, which is necessary to preserve issues for review or appeal. See 1955.40(b)(3).

• If a ruling is not recorded, you may lose the ability to challenge that evidentiary decision later.

Yes — the Department of Labor may be considered presumed expert on certain matters, and the administrative law judge may take official notice of such matters as long as parties are given notice and an opportunity to show the contrary. See 1955.40(c).

• If you believe the official notice is incorrect or incomplete, present contrary evidence or argument during the hearing.