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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Representing Unemployed Workers
Unemployment Insurance Hearings
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
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.
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.
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)
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.
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
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,
Emergency Unemployment Compensation (EUC08) 7/6/08 – 12/28/13
* 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.
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:
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.
Claimants have more stringent work search requirements including:
Contact GBLS or local legal services office for help.
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
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)
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.
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
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
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.
Verification of Entitlement (SAVE)
Sequence of a Claim 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.
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
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
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).
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
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.
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.
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
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.
Eligible for Waiver of Overpayment if:
there is no proof of fraud
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.
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.
The DUA Hearing benefit?
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
Who can appeal: either party benefit?
Evidence: formal rules of evidence do not apply
Proceedings: electronically or tape-recorded
Personnel Record (G.L. c. 149, §52C)
Request onlyif strategic to do so
The DUA Hearing (2)
* 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
The DUA Hearing (4) benefit?
* at least 3 meetings
* average time for case prep – 25 hours
* role play with supervisor/colleagues and then prepare client
Present witnesses benefit?
The DUA Hearing (5)
Rights and duties of parties
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)
Do not ask leading questions!
Is client able to work? benefit?
Is client available for work?
Is client actively seeking work?
Is the job suitable?
The DUA Hearing (7)
Prepare you client for hidden traps
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)
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)
Only if you must!
Introducing a document into evidence
* e.g., authenticity of document: dated, signed, letterhead
The DUA Hearing (10)
Documents and Objections
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)
DUA provides interpreters at hearings at benefit?no cost to claimants
* 2 hour hearing
Claimant or claimant’s advocate must
Problems with Interpreters? Contact:
Marisa de la Paz, DUA Multilingual Services, (617) 626-5471
Based on Separation 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)
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
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
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
(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)
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.
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.
* 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.
Shift change or transfer benefit?
Lack of transportation
Temp assignment endsVoluntary Quit Example…disqualifying or not?
Employment Rights Coalition (ERC) Margaret Monsell, firstname.lastname@example.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, email@example.com; Margaret Monsell, firstname.lastname@example.org
UI Online: Cheryl Scott, Director of MA Workforce Investment Board, Cheryl.Scott@state.ma.usContacts for Further Assistance