kerry o brien inside the mind of the twc hearing officer n.
Skip this Video
Loading SlideShow in 5 Seconds..
Kerry O’Brien Inside the Mind of the TWC Hearing Officer PowerPoint Presentation
Download Presentation
Kerry O’Brien Inside the Mind of the TWC Hearing Officer

Loading in 2 Seconds...

play fullscreen
1 / 32

Kerry O’Brien Inside the Mind of the TWC Hearing Officer - PowerPoint PPT Presentation

  • Uploaded on

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:

I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
Download Presentation

PowerPoint Slideshow about 'Kerry O’Brien Inside the Mind of the TWC Hearing Officer' - rio

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.

- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
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?


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


How does this affect their

decision making process?



How do the hearing officers

make decisions?


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


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.”


Then what is my role

as an attorney?


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?


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.


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.


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.


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.”


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

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?


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


How do I subpoena documents

for the Appeals Tribunal hearing?


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.


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.


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



Kerry O’Brien