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UI_Powerpoint_10-7-2010.ppt - Representing Clients in Unemployment

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									Representing Unemployed Workers At
 Unemployment Insurance Hearings
              October 7, 2010

MCLE with funding in part by the Massachusetts
                Bar Foundation
            Employment Law Unit
       Greater Boston Legal Services
                      &
    Massachusetts Law Reform Institute
What Is Unemployment Insurance?
    Non-means tested cash assistance program established by
     Congress 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

    Section 74: the statute shall be liberally construed in favor of the
     worker and the worker’s family
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 (2009)
     DUA web site: www.mass.gov/dua
     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:
     Robert M. Schwartz, Your Rights on the Job, 5th Ed.
     Thomas A. Mauet, Trial Techniques
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


   Executive Office of Labor & Workforce Dev.
      Secretary of Labor Joanne Goldstein

       Division of
                                   Division of
     Unemployment
                             Career Services (DCS)
    Assistance (DUA)
                             Director Michael Taylor
 Director Judi Cicatiello
                            (One-Stop Career Centers)
 (UI & Labor Market Data)
        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
       capable of, available for and actively seeking work
        (including part time work w/ or w/o reasonable
        accommodation)

   Base Period & Benefit Year
    How To Apply

   File a claim or check status of claim with the Massachusetts
    Division of Unemployment Assistance (DUA)

       Call 617-626-6800 or 1-877-626-6800

       Call by last SS#: M-0,1,2; T-3,4,5; W-6,7;Th-8,9.

       For more information, go to www.mass.gov/dua
        Calculating An Unemployment Check
   In most cases, UI will be about half of average weekly gross
    wages
       up to the maximum (currently $629/week)
       plus an allowance of $25 per dependent child
       plus an additional $25 a week under Recovery Act (until
        5/23/10 and for individuals still collecting, through w/e
        12/11/10)

   Dependency allowance is capped at 50% of UI check

   Check is usually calculated on the basis of the 2 HQ earnings,
    total benefits are the lesser of 36% of BPE or 30 x WBA
    Duration of UI Benefits

   State UI may last up to 30 weeks (now during fed.
    extensions - 26 weeks)
     May be less if work income fluctuated or worked less
       than a year
    (See UI Advocacy Guide, Appendix C)
   UI may be extended
     to participate in training;

     or when high unemployment rate triggers federal
       extended benefits (as is the case currently)
         Federal Extended UI
Program in effect from 7/6/08 – week ending 11/20/10 (99
    weeks)
Eligibility:
1)   currently unemployed
2)   worked equivalent of 20 weeks during base period
3)   EUC: benefit year expired (BYE) between 5/5/07 &
     11/20/10 ( Tier I) & exhaust Tier II, III, IV by 11/27/10; last
     payable date is week ending 4/30/11
4)   EB: original date – 3/22/09; file by 12/19/10; last payable
     date is week ending 12/25/10.
Current maximum: 26 weeks (state) & 53 weeks (fed – EUC:
     Tier I – 20 wks; Tier II – 14 wks; Tier III – 13 wks; Tier 4 – 6
     wks) + 20 weeks (fed-EB) = up to 99 weeks
    Must any job be accepted?

No, only “suitable” job. Suitability determined
by whether job:
  is detrimental to health, safety, or morals
  fits employee based on training and experience
  has similar pay, hours and benefits including whether
    meets the “the prevailing conditions of work test”
  has a reasonable or comparable commuting distance
  is vacant due directly to a strike, lockout, or other
    labor dispute
  would require joining a co. union or limit joining or
    retaining membership in a union.
 Special rules apply for Domestic Violence situations
    To make sure checks keep coming or
    eligibility established if initially denied:
   Every week must use WebCert or TeleCert (interchangeably)
    to certify active work search.
     TeleCert: (617) 626-6338 (English and Spanish)
     WebCert: go to www.detma.org and choose “Sign for UI benefits
       using WebCert” on the left toolbar (English only)

   Claimant must keep certifying eligibility so that automatically receive UI
    even if initially denied UI

   Predate may be possible - see G.L. c.151A § 62A (g)

   Advise keeping a work search log. Note: this is required for EB – if
    don’t look for work for single week may be indefinitely disqualified! (this
    rule doesn’t apply to EUC)
Can a claimant work part-time without
losing the whole UI check?
   Yes – If earn an amount less than one-third of UI
     Gross earnings up to a third of the weekly benefit rate are
      disregarded. This is the “earnings disregard.”
     Additional earnings from a part-time job are deducted from UI.


   Must report earnings
     DUA does a cross match with DOR




   IMPORTANT NOTES:
1. If quit part-time job for a disqualifying reason, deductions will
    continue to be made from UI check. This is a “constructive
    deduction.”
2. Partial earnings may result in a reduction of federal extended benefits
    if benefit year expired before 7/22/10.
New Problem: Why UI Check Is
Reduced After One Year
   The benefit year (52 weeks after 1st applied) (BY) determines the weekly
    benefit amount.

   After 26 weeks of state benefits, can then collect federal benefits.

   Under federal law, once the BY ends, a new state claim must be filed.

   If interim partial benefits up to $3,500 during BY, must file a new state
    claim

   NOTE: After this 2nd state claim is exhausted, can go back and recapture
    higher federal benefits from 1st state claim

   Congress fixed this problem for claimants exhausting after 7/22/10 if
    reduction would mean either 25% less UI or $100 less.
Can a claimant participate in training while receiving UI?

       Yes, if first approved by DUA.
       Training cannot last more than 2 years.
         3 yr. for combined ESOL/Basic with Vocational training;
           stand-alone ESOL is now approved
         Job search is waived while in training

       Extended UI for training: apply for training w/in 15 weeks of a
        new or continued claim: note tolling during federal extension
         if approved, can get up to 26 weeks of extended UI during
           training. (Ex. G)
         DUA takes position that must apply w/in benefit year – should
           be challenged.
         NOTE best kept secret: if worked in declining industry,
           eligible even if disqualified for UI!
       Find a training program at One-Stop Career Centers
        (see UI Advocacy Guide, Appendix A)
       Pell grants up to $5,350 – see: www.opportunity.gov
Health Insurance for the Unemployed (1)

  Must be 400% or less of FPL, MA resident
  Eligible for MA UI from a MA Employer
    Two Types of Coverage:
    (A) Premium Assistance Plan:
         Claimant had prior coverage
         Claimant pays for existing coverage
         Partial reimbursement for premiums
          (up to 80%: currently up to $1,170 for family plan
           and $480 for individual coverage)
Health Insurance for the Unemployed (2)

  (B) Direct Coverage Plan
   If no prior coverage, or
    If financial hardship (150% poverty), or

    Expenses exceed 7% of income

    COBRA option expired.
  Note: copays depend on type of hospital-consult BCBS/MSP
    schedule of benefits
  For information and application: 1-800-914-4455 or
    1-800-908-8801
                   COBRA MEETS MSP

-   Under ARRA, if lost job between 9/1/08 & 5/31/10 COBRA is
    subsidized by 65% (payable by employers who will be reimbursed
    through a tax credit) for up to 15 months.

-   Eligibility for COBRA if hours reduced (if this happened between
    3/2/10 & 5/31/10).

-   MSP will reimburse 80% of the employee’s 35% share, so that the
    cost is 7%.

-   Available for individuals in co. of 20 or more under federal law, and
    all size companies under Mass. “mini-COBRA.”

See: www.dol.gov/ebsa/cobra.html & www.mass.gov/dua/msp
Is UI Taxable?


    Yes. If want taxes withheld, must make a
     request.
    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.
Must be authorized to work to collect UI but:
•   Different requirements in base period & benefit year:
    -   Base period: 3 categories (includes PRUCOL) (Ex. O)
        (2nd Page)
    -   Benefit year: must prove work authorization (Ex. N)
                  Systematic Alien
        Verification of Entitlement (SAVE)

– Needs to provide A# and provide document verifying
  work authorization (Ex. P)
– DUA sends it to ICS through SAVE: primary verification
– If problem with document verifying work authorization;
  additional verification (Ex. O)
    Sequence of a Claim (1)
   Claimant files claim with DUA
   DUA notifies employer of claim (Ex. A)
   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 respond - not a party unless “good
        cause”
       Alert: watch out for responses by employer “agents” e.g.,
        TALX, USC.
Sequence of a Claim (2)
If not a layoff, DUA conducts an investigation
   DUA requests info from employer (Ex. B) and claimant (Ex. C)
   DUA makes benefit determination (Ex. D & Ex. E)
   DUA issues a Notice to Claimant of Disqualification (Ex. F) or
   DUA issues claimant checks
Sequence of a Claim (3)

                    Claimant’s Statement

   assist claimant in presenting her claim to claims adjuster

   use the fact-finding questions in SRH

   help with chronology, relevant facts, state of mind, and
    supporting documents
Sequence of a Claim (4)


                     Employer’s Statement

   Employers outsource UI functions

   Companies (third party agents or TPAs) handling UI claims often have
    no first-hand knowledge

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

   Employer and TPA must now swear to truth of statement under pains
    and penalties of perjury.
              Sequence of a Claim (5)
Appeals:

   If benefits denied claimant has 10 days to request hearing (30
    days if good cause) (Ex. H)

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

 New regulation – 60 days if claimant is LEP and no limit if LEP and
  not informed in primary language
(See 430 CMR 4.14)
               Sequence of a Claim (6)

   DUA sends hearing notice (Note: postponement request deadline
    (Ex. I) (Luciano litigation)
   DUA holds administrative hearing
   DUA issues a hearing decision (Ex. J)
   Decision should issue within 45 days of hrg request
   Losing party has 30 days to appeal to Board of Review (Ex. K)
    (Pavian: reaffirmed postmark rule)

Please consider appealing meritorious case to Board as part of pro
   bono work.
       Sequence of a Claim (7)
Board of Review may do the following:

   Deny further review (Ex. L)
  Do nothing at all. Case deemed denied after 21 days (ct. w/in 51
    days of appeal)
  Allow & remand to DUA (Ex. M)

  Allow & Board reviews record (Ex. M-1)

  Allow & Board holds hearing (very rare)

 (G.L. c. 151A, § 41)
 Note: Board now posting decisions on web.
             Sequence of a Claim (8)
   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
       WebCert or TeleCert during appeal process
Reconsideration/Redetermination


    Remedy if time for appeal expired (& not more than one yr. since
     original determination)
    Letter to DUA Director 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
     checks are stopped [NEW].
     (Ex. F-1; F-4)
      See: G.L. c. 151A, § 71; 430 CMR §§ 4.30 et seq; 11.01 et seq.
Waiver of Overpayment


  Eligible for Waiver of Overpayment if:

     there is no proof of fraud

                            and

     re-paying the money would:
       “defeat the purpose of benefits” or

         would be against “equity and good conscience”

  (See: G.L.c. 151A sec. 69; Ex. F-3: Notice of Overpayment)
Is it really fraud?

   Waiver available only if no finding of fraud

   Examine whether fraud finding includes finding of fraudulent
    intent--i.e., did claimant have “state of mind” to intentionally
    defraud DUA: see SRH 1462

   If no intent, challenge through hearing or redetermination

   LEP issues: see SRH 1463

   Procedures currently being challenged in court.
Informal Fair Hearing Rules: 801 CMR 1.02
   Agency: DUA/Hearings Department
   Hearing Officer: Review Examiner
   Parties: Claimant and Employer (unless
    single party issue)
   Who can appeal: either party

   Evidence: formal rules of evidence do not apply

   Proceedings: tape-recorded

   Discovery:
       DUA file
       personnel record (G.L. c. 149, §52C) - only if strategic
        to do so
Review docs in DUA’s Hearing File

    UI Request for Information sent to employer (examine date for
     timely return)

    Notice to Claimant of Disqualification

    Statements from employer and claimant

    Notice of hearing
Preparation of Claimant
 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 w/
  supervisor/colleagues and then prepare client
 Describe hearing “scene” and what to expect at
  hearing
Rights and duties of parties
   Present witnesses

   Cross examination

   Oral testimony and documentary evidence
Direct Examination
Do not ask leading questions
     Use open-ended questions
     Tell a story that fits with theory of case (see Mauet)
     Chronology of events backwards
     Group your direct into subject areas
     Don’t dwell on unimportant details
     Don’t interrupt your witness
Re-Direct
     First time around it’s your direct
     Do not use it to bring out nit-picking points
     Use your re-direct to clarify a point
     Use it to elaborate on a subject (brought out
      on cross) that helps your client
Cross Examination
    Only if you must!
   Did witness hurt you?
   Do you know the answer?
   Do you have real ammunition?
   Ask leading questions (require yes/no)
   Avoid “why” or open-ended questions
Documents and Objections
   Hearsay

   Relevance

   Introducing a document into evidence

   Authenticity of document: dated, signed, letterhead

   Privilege
    Closing Argument

   Make it short & to the point
   Don’t recite the entire hearing
   Don’t lecture the review examiner on the law
   Use to highlight the most favorable facts
   Connect the dots
   Submit proposed findings of fact & rulings of law (if
    necessary ask for 24 hours to conform facts to
    evidence)
•   DUA provides interpreters at hearings at
    no cost to claimants
    -   2 hour hearing


    Problems with Interpreters? Contact:
    Marisa de la Paz, DUA, Multilingual Services (617) 626-5471
Based on Separation
     Disqualification: Discharge

Discharge: G.L. c. 151A, § 25(e)(2)
   (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 domestic
         violence
        Including individual’s need to address the
         physical, psychological and legal effects of DV
Discharge: “Deliberate Misconduct” …


 Claimant must have engaged in
 “deliberate misconduct” in “willful disregard” of
 the employer’s interest
      Claimant’s state of mind
      Intentional disregard of employer’s interest and
       expectations
      Employer must prove BOTH statutory elements
Discharge: “Knowing Violation” (1)…

    of a “reasonable and uniformly enforced” rule
    or policy

   A knowing violation requires intent
       Claimant must have intended to 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
Discharge: “Knowing Violation” (2)


     Rule or policy must be reasonable
     Rule or policy must be uniformly enforced

NOTE: Incompetence does not constitute a violation
Discharge examples…disqualifying or not?
     – 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
     Voluntary Quit: G.L. c. 151A, § 25(e)(1)

(1) Good cause attributable to the employer
(2) Urgent, compelling and necessitous reasons
  Claimant has burden of proof

Exception: domestic violence
Voluntary Quit: “Good Cause”…
    attributable to the Employer
   Claimant must have made reasonable efforts to resolve
    the problem unless futile
   Exception: Domestic Violence
   Exception: cases involving allegations of sexual
    harassment (See Tri-County Youth Programs, Inc. v. Acting Deputy Director of
    DET, 765 N.E. 2d 810, 815-816 (Mass. 2002)); racial, or other
    unreasonable harassment (See G.L. c. 151A, §25(e), ¶5; 430 CMR
    4.04(5))
   General job dissatisfaction or unfair criticism are not
    grounds for good cause

Consult: Your Rights on the Job to determine if employment law
  violations.
Voluntary Quit: “Urgent, Compelling &
Necessitous”
   Non work-connected reason – G.L. c. 151A,
    sec. 25(e), par. 3
   Claimant must have made reasonable efforts to preserve
    job, unless futile
   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 – 430 CMR
        5.05(4))
 May raise “availability” issues
Key to these cases is thorough exploration of client’s
  circumstances.
Special rules for temp agency jobs:

     Must prove that contacted the temp agency to
     see if more jobs available before applying for UI.
     Note: notice must be provided to claimant in
     customary way & the job must be suitable.




   Call GBLS at 617-603-1810 if claimant denied UI after
   completing a temp job.
Voluntary Quit Example…disqualifying or not?


           Shift change or transfer
           Unfair reprimand
           Harassment
           Inadequate pay
           Lack of transportation
           Domestic violence
           Temp assignment ends
Additional Potentially Qualifying
Voluntary Quit Situations
   Good cause attributable to the employer:
     Unsafe equipment

     Poor condition of equipment, which decreases employee’s wages
     Unfair impending termination or suspension

     Random unsanctioned drug testing

     Change of job duties and/or compensation

     Harassment, discrimination

     Employer’s unethical or illegal actions

   Urgent, compelling or necessitous reasons
     Care for a seriously ill family member or significant other

     Obtain treatment for alcohol or drug addiction

     Compelled move creating increased, unreasonable commuting
      distance and/or costs
     Loss of transportation

								
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