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Kerry O’Brien Inside the Mind of the TWC Hearing Officer. In this talk, we’ll cover: . Who are the hearing officers? How do they make their decisions? How can I use the process to help my client in related litigation?. What kind of hearings are we talking about?. PART ONE:

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Presentation Transcript
in this talk we ll cover
In this talk, we’ll cover:
  • Who are the hearing officers?
  • How do they make their decisions?
  • How can I use the process to help my client in related litigation?
slide4

PART ONE:

Who are the hearing officers?

typical schedule 4 days week
Typical schedule (4 days/week)

8:00 a.m. Hearing

9:00 a.m. Hearing

10:00 a.m. Hearing

11:00 a.m. Hearing

12pm-1pm Lunch

1:15 p.m. Hearing

2:15 p.m. Hearing

3:15 p.m. Hearing

slide7

How does this affect their

decision making process?

slide8

PART TWO:

How do the hearing officers

make decisions?

slide9

Who has the burden of proof? The employer or the claimant?

Neither.

From the hearing officer’s handbook:

“…it is the Hearing Officer's duty to elicit all the available facts and render judgement based upon the evidence. In a sense, it may be said that the Hearing Officer has the procedural burden of proof.”

slide10

Then what is my role

as an attorney?

slide13

How is the Hearing Officer’s analysis affected if the separation was a quit versus a termination?

so when is someone s performance misconduct
So when is someone’s performance misconduct?

GENERAL PRINCIPLES:

Someone who is working to the best of their ability but is unable to meet the employer’s standards has not committed misconduct.

Appeal No. 1456-CA-77. Where a claimant has performed her work to the best of her ability, her inability to meet the employer's standards or inability to perform the work to the employer's satisfaction does not constitute misconduct connected with the work.

slide17

However, if an employee is able to meet the employer’s standards at one point and then stops meeting the employer’s standards, it is presumed that the employee is being negligent in the absence of some other explanation for the decline in performance.

slide18

Also – if the work is so simple that the average person should be able to do it if they are reasonably trying, that is misconduct.

Example from the manual: A dishwasher should be able to wash to properly wash dishes.

example from voluntary leaving
Example from Voluntary Leaving

Dissatisfaction with working conditions

Appeal No. 3613-CA-76. A claimant who quits work because of some dissatisfaction with working conditions without affording the employer any opportunity to resolve the situation thereby voluntarily quits without good cause connected with the work.

slide20

What if it’s disputed whether the employer quit or resigned?

“We’re going to let you go, but if you want to put in your resignation notice right now, you can. Here’s a piece of paper.”“Dear Employer - I have decided to move on to another opportunity and hereby resign.”

slide21

What do you do about a he-said/she-said situation where a key issue is simply one person’s word against another?

All the Hearing Officer has is (1) what you say, and (2) how you say it.

part three
PART THREE:

How can I use the process to leverage related litigation?

employer s perspective
Employer’s Perspective

If you think there is any reasonable chance that there will be litigation – do you want your key witnesses testifying under oath in a recording hearing over some measly unemployment benefits?

employee s perspective
Employee’s Perspective

Do I, the attorney, have to provide any notice of representation?

slide26

How can I go into some litigation-helpful matters if they aren’t specifically relevant to the hearing officer’s decision?

slide27

How do I subpoena documents

for the Appeals Tribunal hearing?

slide29

Can I use the TWC Appeals Tribunal decision in the litigation? No.

Sec. 213.007. COLLATERAL ESTOPPEL DOCTRINE INAPPLICABLE. A finding of fact, conclusion of law, judgment, or final order made under this subtitle is not binding and may not be used as evidence in an action or proceeding, other than an action or proceeding brought under this subtitle, even if the action or proceeding is between the same or related parties or involves the same facts.

slide30

Are the TWC benefits a mandatory offset to the employee’s lost wages damages?

State Court: Yes, mandatory offset.

Federal Court (5th Circuit): No. Discretionary.

NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337 (1951) – Receipt of unemployment benefits was collateral.

Many other federal circuits (e.g. 8th, 3rd, 11th, 6th, 9th, 4th) prohibit lost wages offset for unemployment benefits.

slide31

If my client loses the hearing, is there an advantage to seeking judicial review for purposes of other litigation?

slide32

Questions?

Kerry O’Brien

ko@obrienlawpc.com