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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-
     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
                             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

   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
       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

   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
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

1. If quit part-time job for a disqualifying reason, deductions will
    continue to be made from UI check. This is a “constructive
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

   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
                   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
    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
       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)

   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

    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


     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
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
     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
•   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
        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
      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
       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
   General job dissatisfaction or unfair criticism are not
    grounds for good cause

Consult: Your Rights on the Job to determine if employment law
Voluntary Quit: “Urgent, Compelling &
   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
 May raise “availability” issues
Key to these cases is thorough exploration of client’s
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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