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Massachusetts Continuing Legal Education September 25, 2013. Representing Unemployed Workers at Unemployment Insurance Hearings. What Is Unemployment Insurance?. Non-means tested cash assistance program established in 1935 Law and policies set generally by federal government

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Massachusetts continuing legal education september 25 2013
Massachusetts Continuing Legal Education September 25, 2013

Representing Unemployed Workers

at

Unemployment Insurance Hearings


What is unemployment insurance
What Is Unemployment Insurance?

Non-means tested cash assistance program established in 1935

Law and policies set generally by federal government

States determine benefit levels, duration & disqualification

Employers are source of funding for UI benefits, but only taxed on 1st $14,000 (Solvency Fund)

UI is first line of defense in a recession

G.L.c.151A, sec. 74: unemployment law shall be liberally construed in favor of the worker and the worker’s family


Resources to understand unemployment
Resources to Understand Unemployment

State law: G.L. c. 151A

DUA regs: 430 CMR; 801 CMR sec. 1.02

DUA policies: Service Representatives Handbook

Mass. Unemployment Advocacy Guide (2013-2014)

DUA web site: www.mass.gov/lwd/unemployment-insur/

Board of Review Decisions: http://dwd-webapp-01.detma.org/bor_decisions

DOL website: workforcesecurity.doleta.gov/unemploy/

Legal Services Website: www.masslegalservices.org

Other good resources: Thomas A. Mauet, Trial Techniques

Robert Schwartz, Your Rights on the Job, 5th Ed.


Funding unemployment insurance
Funding Unemployment Insurance

A tax is levied on every employer covered by the law.

The tax rate is based on the taxable wage base, the # of employees, the # separated from employment in the past year, and tax schedule.

Nonprofits and governmental employers can self-insure.


The administration of unemployment job training programs
The Administration of Unemployment& Job Training Programs


Eligibility for unemployment
Eligibility for Unemployment

UI eligibility if:

totally or partially unemployed

separated from employment through no fault

earned at least $3,500 and worked approximately 15 weeks in the prior year (20 weeks for federal UI)

capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation)

Base Period (BP) & Benefit Year (BY)


How to apply
How To Apply

File claim or check claim status with MA Dept. of Unemployment Assistance (DUA)

Call 617-626-6800 or toll-free 1-877-626-6800, 8:30-4:30

Call w/SS# 0,1- Monday; 2,3 - Tuesday; 4,5,6-Wednesday; 7,8,9 - Thursday; any # - Friday

Walk in help at UI and career centers

Since 7/1/13: UI Online (English only)– see Guide, Q.1

Practice tips: UI application complete only when get to “confirmation page;” if clients on UI Online choose mail correspondence, will not get email reminders.


Calculating unemployment benefits
Calculating Unemployment Benefits

Usually, about ½ average weekly gross wages

up to maximum set on Oct. 1 (now $674/week)

+ allowance of $25 per dependent child

Dependency allowance capped at 50% of UI check

Benefit usually based on 2 HQ earnings (div. by weeks, div. by 2 = WBA)

Total benefits are < of 36% of BPE or 30 x WBA

BPE = Base Period Earnings; HQ = high calendar quarter; WBA = weekly benefit amount


Duration of ui benefits
Duration of UI Benefits

State UI may last up to 30 weeks (during federal benefits - 26 weeks)

May be less if work income fluctuated or worked less than a year

UI may be extended

to participate in DUA-approved training,

by federal extended benefits,

or both.


Federal extended ui
Federal Extended UI

Emergency Unemployment Compensation (EUC08) 7/6/08 – 12/28/13

Eligibility:

* currently unemployed

* worked 20 weeks during BP:

(3 tests - 1 ½ x WBA; 40 x WBA; [NEW]: 20 weeks FT work)

* EUC08 “Tier I” – exhausted state benefits before 12/21/13 - can get 14 weeks and another 14 weeks under “Tier II”

* last payable week ends 12/28/13.

Amount: Sequestration cut of 12.8% is reduced to 7.2% on 9/29/13.

Duration: was up to 99 weeks total, now - 26 weeks (state) & 28 weeks (federal) = 54 weeks; after federal benefits end on 12/28/13, state UI maximum returns to 30 weeks.


Must any job be accepted
Must any job be accepted?

detrimental to health, safety, or morals

doesn’t fit employee’s training or experience

has worse pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test”

commuting distance is unreasonable/not comparable

vacant directly due to strike, lockout, or other labor dispute

requires joining union or limits joining or retaining membership in a union

Special rules apply for Domestic Violence situations

No, only “suitable” job. A job is not suitable if:


To ensure ui benefits continue or to establish eligibility if initially denied
To ensure UI benefits continue or to establish eligibility if initially denied:

Every week must use English-only UI Online or TeleCert (English, Spanish, Portuguese) to certify active work search.

Claimant must keep certifying eligibility even if initially denied UI

Predate may be possible - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause reasons) – if more than one week, contact call center 617-626-6800

Work search must be documented: 3 work search contacts per week, and keep work search log in case DUA requests copy

See Guide, Q1 and Q6.


To ensure continued federal benefits
To ensure continued federal benefits: if initially denied:

Claimants have more stringent work search requirements including:

  • Keeping a log of all work search activity

  • Mandatory meetings at local career centers

  • Alleged failure without good cause (see SRH 1614) may result in suspension or termination of UI!

    Contact GBLS or local legal services office for help.


Can a claimant work part time without losing the whole ui benefit
Can a claimant work part-time without losing the whole UI benefit?

Yes – if earns amount less than 1/3 of WBR

Gross earnings up to 1/3 of WBR disregarded-- “earnings disregard”

Additional part time earnings are deducted $ for $ from UI.

Must report earnings

DUA does a cross match with DOR

NOTE:

If quit part-time job for disqualifying reason after leaving primary job, deductions will continue to be made – “constructive deduction” (CD)

[NEW]: CD regs 430 CMR 4.76 (8/16/13) eliminate or reduce application of CD:

* if had no knowledge that would lose primary job

* if part-time work was for fixed period, CD limited to that period

* no CD if returns to part time job or finds new part time job.

WBR = weekly benefit rate (excludes dependency allowance)


Can a claimant participate in training while receiving ui
Can a claimant participate in training while receiving UI? benefit?

Yes, must be first approved by DUA

Training program: 2 years or 3 years for ESOL/Basic combined with vocational training; stand-alone ESOL is approved

Job search waived while in training

Can get up to 26 weeks of extended UI during training

Extended UI for training: after 12/28/13 must apply for training w/in 15 weeks of a new or continued claim (unless tolled)

Note: 15 week req. tolled during federal extension, i.e., until Dec. 28, 2013 and can apply even if no longer getting UI benefits if applied anytime since July 6, 2008!

See Guide, Q. 54 and DUA website.


Health insurance for the unemployed 1
Health Insurance benefit?for the Unemployed (1)

Two Types of Coverage:

(A)Premium Assistance Plan: Partial reimbursement for premiums

(up to 80%: currently up to $1,350 for family plan and $550 for individual coverage)

(B) Direct Coverage Plan: Available if no prior coverage, can’t afford premiums, expenses exceed 7% of income, COBRA option expired

The sooner the claimant applies the better.

Must be 400% or less of FPL, MA resident, eligible for MA UI from a MA employer


Health insurance 2
Health Insurance (2) benefit?

Due to ACA implementation, MSP (including premium assistance) will end:

Open enrollment through Health Connector

Enrollment begins October 1, 2013 and must be completed by December 23, 2013 to avoid gap in coverage

Enrollment is through Health Connector – 1-877-MA-ENROLL (1-877-623-6765 or www.MAhealthconnector.org)

After December 31, 2013


Is ui taxable
Is UI Taxable? benefit?

Yes. If want taxes withheld, must make a request.

DUA sends out 1099-G, available at www.mass.gov/dua/webcert, call 617/626-5647, or request through UI Online (“Payment History”)

If choose to withhold taxes from UI:

10% of weekly benefit will be withheld for federal taxes

5.3% for state taxes

If don’t withhold, responsible for taxes owed at tax time.


Massachusetts continuing legal education september 25 2013

Non-Citizens benefit?

  • Must be authorized to work to collect UI but:

  • Different requirements in base period & benefit year:

    • Base period: 3 categories – 1) lawfully admitted for permanent residence at time of work; 2) lawfully present to work; 3) PRUCOL

    • Benefit year: must prove work authorization

    • PRUCOL = permanently residing under color of law – See Guide, Q. 51


Massachusetts continuing legal education september 25 2013

Non-Citizens benefit?

Systematic Alien

Verification of Entitlement (SAVE)

  • Must provide A# and document verifying work authorization

  • DUA checks ICE database through SAVE - “primary verification”

  • If problem with verification - photocopies of documents sent to ICE “secondary verification”

  • Note: UI must be paid during verification

  • Contact GBLS if questions about immigration status



Sequence of a claim 1
Sequence of a Claim (1) benefit?

Claimant files claim with DUA on-line or telephone

DUA notifies employer of claim

Employer has 10 days to respond

If the employer checks “laid off,” benefits start shortly after a one-week waiting period.

If employer does not timely respond - not a party unless “good cause”

Alert: watch out for responses by employer “agents” e.g., TALX, USC.


Sequence of a claim 2
Sequence of a Claim (2) benefit?

DUA requests info from employer and claimant

DUA makes benefit determination

DUA issues a Notice to Claimant of Disqualification or

DUA provides UI benefits (debit card is default; must choose direct deposit – no more paper checks)

If not a layoff, DUA conducts an investigation


Sequence of a claim 3
Sequence of a Claim (3) benefit?

Claimant’s Statement

assist claimant before presenting her claim to claims adjuster (by phone or UI Online

use the fact-finding questions in SRH

help with chronology, relevant facts, state of mind, and supporting documents


Sequence of a claim 4
Sequence of a Claim (4) benefit?

Employer’s Statement

Employers often outsource UI functions to companies who may have no first-hand knowledge

UI Online favors employer agents who know right “buzzwords” and as repeat users can more easily navigate it

Consider contacting DUA Determinations Dept. for reversal if information is erroneous

Employer must swear to truth of statement under pains and penalties of perjury. 430 CMR 5.02 (8).


Sequence of a claim 5
Sequence of a Claim (5) benefit?

Appeals

If UI denied claimant has 10 days to request hearing (30 days if good cause)

If UI granted employer has 10 days to appeal (30 days if good cause)

Note: 60 days if claimant is LEP and no limit if LEP and not informed in primary language. 430 CMR 4.14.

Appeals can be requested through UI Online

LEP = Limited English Proficient


Sequence of a claim 6
Sequence of a Claim (6) benefit?

DUA sends hearing notice – even if posted on UI Online, must also be mailed (watch out for hearing postponement deadline)

DUA holds administrative hearing

DUA issues a hearing decision (should issue no more than 45 days of hearing request)

Losing party has 30 days to appeal to Board of Review by fax, mail (post mark date), or UI Online.

Always appeal meritorious case to Board --- if lack resources, advise claimant to do so.


Sequence of a claim 7
Sequence of a Claim (7) benefit?

Deny further review

Do nothing - deemed denied after 21 days (court appeal due within 51 days of appeal)

Allow & remand to DUA

Allow & Board reviews record

Allow & Board holds hearing (very rare)

(G.L. c. 151A, § 41)

Note: Board now posts important decisions on web.

  • Board of Review may do the following:


Sequence of a claim 8
Sequence of a Claim (8) benefit?

Losing party has 30 days to appeal Board of Review’s decision to District Court

Claimant, employer & DUA are all parties (unless single party issue) – must serve complaint within 7 days of filing by certified mail, return receipt requested. G.L. c. 151A, § 42.

District Court decision can be appealed to Appeals Court and then to Supreme Judicial Court (by cert)

Claimants need to continue to certify their eligibility using UI Online or TeleCert during appeal process


Reconsideration redetermination
Reconsideration/Redetermination benefit?

Remedy if time for appeal expired (& not more than one year since the most recent decision)

Letter to DUA Director Michelle Amante requesting reconsideration under G.L. 151A, § 71

Decision fully discretionary

If DUA initiates redetermination, must notify claimant of opportunity to present evidence before its decision and before benefits are stopped

G.L. c. 151A, § 71; 430 CMR 4.30 et seq; 11.01 et seq.


Waiver of overpayment
Waiver of Overpayment benefit?

Eligible for Waiver of Overpayment if:

there is no proof of fraud

and

re-paying the money would:

Either “defeat the purpose of benefits”

Or would be against “equity and good conscience”

G.L.c. 151A, sec. 69; 430 CMR 6.00 et seq.

Note: UI Online has caused erroneous overpayments or overpayments established many years or decades ago. Contact Cheryl.Scott@state.ma.us.


Is it really fraud
Is it really fraud? benefit?

Waiver available only if no finding of fraud

Examine whether fraud finding includes finding of fraudulent intent -- i.e., “state of mind” to intentionally defraud DUA

Did claimant have capacity to commit fraud – should consider age, intelligence, physical, mental, educational, and linguistic limitations, including facility with English OR did claimant make a good faith mistake of fact

If no intent, challenge through hearing or redetermination

Regulations regarding “capacity” and “good faith” pending before DUA as part of Brugman litigation brought by Brian Flynn, GBLS & Margaret Monsell, MLRI.


Massachusetts continuing legal education september 25 2013

The DUA Hearing benefit?


Massachusetts continuing legal education september 25 2013

Agency: benefit? DUA/Hearings Department

Hearing Officer: Review Examiner

Parties: Claimant and Employer (unless single party issue)

Your prep: ask to observe a hearing or view mock hearing (available on You-Tube)

The DUA Hearing (1)

Informal Fair Hearing Rules:801 CMR 1.02


Massachusetts continuing legal education september 25 2013

Who can appeal: either party benefit?

Evidence: formal rules of evidence do not apply

Proceedings: electronically or tape-recorded

Discovery:

DUA file

Personnel Record (G.L. c. 149, §52C)

Request onlyif strategic to do so

The DUA Hearing (2)


Massachusetts continuing legal education september 25 2013

UI Request for Information sent to employer benefit?

* examine date for timely return

Notice to Claimant of Disqualification

Statements from employer and claimant

Notice of hearing

Any other documents submitted by parties to claims adjudicator or otherwise submitted through UI Online

The DUA Hearing (3)

Review docs in DUA’s Hearing File


Massachusetts continuing legal education september 25 2013

The DUA Hearing (4) benefit?

Claimant preparation:

  • Take the time to thoroughly prepare client

    * at least 3 meetings

    * average time for case prep – 25 hours

  • Think about employer’s best case and how to meet it and confront bad facts

  • Write out direct, cross of employer and potential cross of your client

    * role play with supervisor/colleagues and then prepare client

  • Describe hearing “scene” and what to expect at hearing


Massachusetts continuing legal education september 25 2013

Present witnesses benefit?

Cross examination

Oral testimony

Documentary evidence

The DUA Hearing (5)

Rights and duties of parties


Massachusetts continuing legal education september 25 2013

Use open-ended questions benefit?

Tell a story that fits with theory of case (see Mauet)

Chronology of events backwards

Group your direct into subject areas

Do not dwell on unimportant details

Do not interrupt your witness

The DUA Hearing (6)

Direct Examination

Do not ask leading questions!


Massachusetts continuing legal education september 25 2013

Is client able to work? benefit?

Is client available for work?

Is client actively seeking work?

Is the job suitable?

The DUA Hearing (7)

Direct Examination

Prepare you client for hidden traps


Massachusetts continuing legal education september 25 2013

Your client or your witness benefit?

After your witness is cross-examined, you can re-direct (only if you need to do so)

Do not use it to bring out nit-picking points

Use your re-direct to:

* Clarify a point, or

* Elaborate on a subject (brought out on cross) that helps your client

The DUA Hearing (8)

Re-Direct Examination


Massachusetts continuing legal education september 25 2013

Did the witness hurt you? benefit?

Do you have real ammunition?

Do you know how the witness will answer the question?

Ask leading questions (require yes/no)

Avoid “why” or open-ended questions

The DUA Hearing (9)

Cross Examination

Only if you must!


Massachusetts continuing legal education september 25 2013

Relevance benefit?

Hearsay

Introducing a document into evidence

* e.g., authenticity of document: dated, signed, letterhead

Privilege

The DUA Hearing (10)

Documents and Objections


Massachusetts continuing legal education september 25 2013

Make it short (< 2 minutes) & to the point benefit?

Connect the dots

Use to highlight the most favorable facts

Do not recite the entire hearing

Do not lecture the review examiner on the law

Can submit proposed findings of fact & rulings of law * If necessary, ask for 24 hours to conform facts to evidence

The DUA Hearing (11)

Closing Argument


Massachusetts continuing legal education september 25 2013

DUA provides interpreters at hearings at benefit?no cost to claimants

* 2 hour hearing

Claimant or claimant’s advocate must

request interpreter

Interpreters

Problems with Interpreters? Contact:

Marisa de la Paz, DUA Multilingual Services, (617) 626-5471


Based on separation

Based on Separation benefit?

DISQUALIFICATION


Disqualification discharge
Disqualification: Discharge benefit?

(1) Deliberate misconduct

(2) A knowing rule violation

Employer has burden of proof

Exception: Domestic Violence

No disqualification if discharge is due to circumstances resulting from DV

Includes individual’s need to address the physical, psychological and legal effects of DV

Discharge: G.L. c. 151A, § 25(e)(2)


Discharge deliberate misconduct
Discharge: “Deliberate Misconduct” … benefit?

Claimant’s state of mind

Intentional disregard of employer’s interest and expectations

Employer must prove BOTH statutory elements

Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest


Discharge knowing violation 1
Discharge: “Knowing Violation” (1)… benefit?

A knowing violation requires intent

Claimant must have intendedto violate the rule or policy

See: Still v. Commissioner of Employment and Training, 423 Mass. 805, 672 N.E. 2d 105 (1996)

Claimant must have been aware of rule or policy

Consciously aware at the time of the act

of a “reasonable and uniformly enforced” rule or policy


Discharge knowing violation 2
Discharge: “Knowing Violation” (2) benefit?

Rule or policy must be reasonable

Rule or policy must be uniformly enforced both with respect to other employees and the individual employee (employer cannot disqualify a person for violations it had repeatedly tolerated in the past without imposing discipline)

NOTE: Incompetence does not constitute a violation


Discharge examples disqualifying or not
Discharge examples…disqualifying or not? benefit?

  • Swearing at a supervisor

  • Tardiness after “final” warning

  • Failure to meet production goals

  • Stealing guest property

  • Fighting with co-worker

  • Excessive absences to go to therapy

  • to deal with DV

  • Remember: state of mind


Disqualification leaving
Disqualification: Leaving benefit?

(1) Good cause attributable to the employer

(2) Urgent, compelling and necessitous reasons

Claimant has burden of proof

Exception: domestic violence

Voluntary Quit: G.L. c. 151A, § 25(e)(1)


Voluntary quit good cause attributable to the employer
Voluntary Quit: “Good Cause”… benefit?attributable to the Employer

Claimant must have made reasonable efforts to resolve the problem unless futile

Exceptions: Domestic violence & cases involving allegations of sexual harassment; racial, or other unreasonable harassment

General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficient

Consult: Your Rights on the Job to determine if employment law violations.


Voluntary quit urgent compelling necessitous
Voluntary Quit: “Urgent, Compelling & Necessitous” benefit?

Non work-connected reason – G.L.c.151A, sec. 25(e)(3):

Claimant must have made reasonable efforts to preserve job, unless futile (therefore, consider state of mind)

Employer’s account not charged (if insured)

Benefits paid from UI solvency fund

(also pays for dependency allowance, extended training benefits, quit because of domestic violence, and quit for another job)

May raise “availability” issues

Key to these cases is thorough exploration of client’s circumstances.


Special rules for temp agency jobs
Special rules for temp agency jobs: benefit?

* Claimant must prove that contacted temp agency to see if more jobs available before applying for UI

* Written notice must be provided to claimant in customary way and include statement that failure to request reassignment will affect rights to UI, & the job must be suitable.

G.L. c.151A, §25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)); and many good Board of Review decisions (See Guide, Q. 38).

Contact GBLS if claimant denied UI after completing a temp job.


Voluntary quit example disqualifying or not

Shift change or transfer benefit?

Unfair reprimand

Harassment

Inadequate pay

Lack of transportation

Domestic violence

Temp assignment ends

Voluntary Quit Example…disqualifying or not?


Contacts for further assistance

Employment Rights Coalition (ERC) Margaret Monsell, benefit?mmonsell@mlri.org

Greater Boston Legal Services (GBLS) (federal benefits, limited English proficiency, noncitizens, temporary employees, UI Online, work search requirements), 617-603-1810

Claimant UI Fraud Allegations: Brian Flynn, bflynn@gbls.org; Margaret Monsell, mmonsell@mlri.org

UI Online: Cheryl Scott, Director of MA Workforce Investment Board, Cheryl.Scott@state.ma.us

Contacts for Further Assistance