unemployment compensation: the ui program, the appeals process and what’s new in ui

UNEMPLOYMENT COMPENSATION: The UI program, the appeals process and what’s new in UI

Presented by:

Susan Nofi-Bendici,Deputy Director

New Haven Legal Assistance Association

February 23, 20101

What is Unemployment Compensation?

• Insurance funded by a tax on employers

• Provides economic support for individuals who are unemployed through no fault of their own

• Not based on hardship

• Eligibility determined by state statutes, regulations and case law

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Who is eligible?

Monetary Eligibility• Base Period• Alternate Base Period• Dependency Allowance• Second Benefit Year

Non-Monetary Eligibility• Worker became unemployed through no

fault of his/her own• Worker is able to work, available for

work and making reasonable efforts to find work

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How are unemployment claims filed?

• “Pink Slip”

• Tele-Benefits Line

• Internet Filing

• Must be timely filed each week 4

What happens once the claim is filed?

• Lack of work separation verification

• Predetermination hearing: in-person, by telephone, in writing

• If denied, 21 days to file an appeal to the referee 5

Administrator holds informal hearing, pays or denies benefits

Referee holds a new, more formal hearing and issues decision awarding or denying benefits

Board of Review issues affirmation, reversal or remand. Usually on existing record, though board may hold

hearing/take new evidence.

Superior Court reviews case on the record only, does not retry case or take evidence, though it may remand for

another hearing.

If appeal is filed

If appeal is filed

If appeal is filed

What’s New in Unemployment?2009 Statutory Changes: ARRA and UI

Modernization

• “Quit to care for” a spouse, child, or parent with a documented illness or disability (minor change to existing law, employer account relieved of charges)

• Quit to protect the individual and/or their child, spouse or parent from domestic violence (minor change to existing law, employer account relieved of charges)

• “Trailing Spouse”: quit to relocate due to the individual's spouse’s employment (new provision, employer account relieved of charges)

• As a result of the changes, CT received $58.6 million to shore up its unemployment trust fund. 7

What’s New in Unemployment?Extensions, Extensions and Possibly More Extensions

• Emergency Unemployment Compensation (EUC08). 100% federally funded. Provides up to 53 weeks of federal UI to claimants who exhaust the 26 weeks of state UI. There are four tiers, with tiers 3 and 4 depending on the TUR, total unemployment rate.

Tier 1 = 20 weeks Tier 2 = 14 weeksTier 3 = 13 weeks (TUR = 6.0% -- CT triggered on effective 11/8/09)Tier 4 = 6 weeks (TUR = 8.5% -- CT triggered on effective 1/3/10)

• As of January 6, 2010, CT received $945 million for EUC088

What’s New in Unemployment?Extensions, Extensions and Possibly More Extensions

• Extended Benefits (EB) Program. Provides up to 20 additional weeks for claimants who have exhausted their original 26 weeks and their 53 weeks of EUC08.

• Normally, the state pays 50% of EB, but under the ARRA 100% of EB benefits are paid by federal stimulus dollars, until 2/28/10 for initial claims and 7/31/10 for continued claims. (Exception for reimbursing employers.)

• CT has received $92.5 in EB as of 1/6/10. CT has also received federal ARRA funds of $151 million for additional compensation (an extra $25 per week in every UC check) 9

Proceedings on disputed matters Proceedings on disputed matters pertaining to unemployment pertaining to unemployment compensation claims: compensation claims:

Conn. State Agencies Regs. §§ 31-237g-1 through 31-237g-60.

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UNEMPLOYMENT APPEAL PROCEDURES

Pre-Hearing Procedures Before a Referee:

• Notice of Hearing:

Parties must receive written notice of the day, time, location and issue(s) to be covered at the hearing at least (5) days prior to the hearing.

The hearing notice also contains a concise, but thorough explanation of the procedures to be followed and the parties’ rights and responsibilities at the hearing.

ADVICE: All parties, witnesses and representatives should be familiar with the procedural explanation that is included with the hearing notice.

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Postponements:

In general: If the party, its key witness or its representative cannot attend the Referee’s hearing as scheduled, the party or its representative may request a postponement.

Such requests should be made by telephone as far in advance of the date as possible. Provide details and be prepared to provide documentation to support the need for the request (e.g., copy of court calendar).

Last-minute requests are generally denied due to administrative inconvenience and/or prejudice to the other party.

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• Postponements: (Cont.)

The postponement request must be for good cause (i.e., party, crucial witness, or representative cannot attend the hearing for a compelling reason).

The Referee may decide to take the testimony of the missing witness by telephone or the party may make arrangements prior to the hearing to have the testimony taken by telephone for good cause shown, rather than postpone the case.

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• Access to Appeals Division files prior to the Referee’s hearing:

Generally, the appeals division office will attach the important documents in the file to the referee’s hearing notice. If you do not receive these documents, you may review the file at the Appeals Division office.

ADVICE: It is better practice to call the Appeals Division office in advance of an in person visit to check the availability of a particular file.

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Extraordinary Evidence: (i.e., video, etc.)

Notify the Appeals Division as soon as possible after the issuance of the hearing notice of the likelihood that extraordinary evidence will be presented and that special equipment or accommodations will be necessary.

If advance notice is not provided, the Referee may not continue the case or provide a means by which the evidence may be presented.

The Referee will not accept into evidence video or other electronic data that cannot be viewed universally rather than only on the party’s equipment.

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THE THE REFEREE REFEREE HEARINGHEARING

The Referee Hearing

• Time Constraints:

The average hearing is scheduled for 40 to 45 minutes in length. If a party or its representative is aware that it is going to present multiple witnesses and/or complicated documentary or other extraordinary evidence, it should contact the Appeals Division office as soon as it receives the hearing notice for special arrangements to be made for hearing the case in multiple time slots.

If your client will require an interpreter, request an interpreter as far in advance as possible. 17

The Referee Hearing

• Attendance:

All parties and witnesses who can present first-hand testimony regarding the important facts of the case should attend the hearing.

Failure of the appealing party to appear at the hearing site within ten (10) minutes of the scheduled hearing time may result in the automatic dismissal of its appeal. Failure of the non-appealing party to appear may result in a decision based only on the testimony of the appealing party.

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The Referee Hearing

• Hearing preparation:

The Referee will not investigate or obtain evidence for the parties.

The parties are responsible for bringing copies of any written evidence submitted for the other parties and the Referee.

ADVICE: Read the checklist for parties attached to the referee’s hearing notice!!

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The Referee Hearing

• Format of the Hearing:

• KEY CONCEPTS:

• The Referee is charged with the responsibility of controlling the hearing and maintaining order.

• The Referee is also charged with a duty of diligent inquiry.

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The Referee Hearing

• Format of the Hearing: (Cont.)

1. Opening statement by the Referee, explaining the issues and procedures.

2. Administrator’s exhibits.

3. Parties’ opening statements.

4. Presentation of evidence.

5. Parties’ closing statements. 21

The Referee Hearing

• Format of the Hearing: (Cont.)

Presentation of Evidence: The party with the burden of proof proceeds first with direct evidence, e.g., claimant in a voluntary leaving case; employer in a discharge case. The Referee will generally lead the questioning. The Referee will always give each party an opportunity to add any additional testimony that is relevant.

ADVICE: Avoid repeating the same questions or subject matter already covered by the Referee.

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The Referee Hearing

•Format of the Hearing: (Cont.)

Cross-Examination: Each party is guaranteed the right to cross-examine any opposing party or witness on any matter relevant and material to the issues involved even if such matter was not covered in direct examination of the party or its witness. The Referee has the duty to assist an unrepresented party in its attempt to cross-examine the other party. 23

The Referee Hearing

• Format of the Hearing:.(Cont.)

Objections: Any party may object to the introduction of evidence or to questions posed, to any aspect of the conduct of the hearing, provided the reason for any such objection is specified at the time of the objection.

Closing Statement: This should be a brief summary of the party's theory of its case and evidence which supports it at the conclusion of all testimony. Be specific on facts that are in dispute, and summarize the applicable legal theories.

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The Referee Hearing

• Hearsay:

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a. Administrative tribunals are not strictly bound by the formal rules of evidence. See Tomlin v. Personnel Board of the State of Connecticut, 177 Conn. 344 (1979).

b. Hearsay evidence is generally admissible at the Referee's hearing.

The Referee Hearing

• Hearsay: (Cont.)

CAUTION: Hearsay evidence may not constitute substantial evidence to support a finding of fact unless its reliability is established under a four-part test set forth by the United States Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971). The four factors are:

1. the nature and atmosphere of the proceeding; 2. the availability of the witness-declarant;3. the lack of bias or interest of the witness declarant; and 4. the quality and probative value of the statements.

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The Referee Hearing

• Hearsay: (Cont.)

Credible first-hand testimony at the Referee's hearing is held to have greater evidentiary value than hearsay, even if the hearsay is reliable. See Jarvis v. Bodine Corporation, Board Case No. 290-87-BR (5/8/87).

ADVICE: Parties should not only attend the hearing but take steps to ensure that the witness(es) with first-hand knowledge of the critical facts and events attends and testifies at the hearing and that they present all records or documents important to the case. 27

Examples of reliable and unreliable hearsay

– Reliable:• Detailed police report, which is also

a business record. See, e.g., Romero v. Data Mail Inc., Board Case No. 2171-BR-92 (11/23/92).

– Unreliable:• Anonymous complaints. See, e.g.,

Nunley v Consignment Originals. Inc., Board Case No. 1848-BR-94 (10/25/95); Cruz v. Data Mail, Inc., Board Case No. 1421-BR-92 (10/21/93).

Key concept: An affidavit may be more reliable hearsay but must be examined under the Richardson test.

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The Referee Hearing

• Salvaging the Case:

– Continuance for witness (surprise)

– Request to phone a witness

– Request to keep the record open

– Argue alternative theories of the case

– Point out inconsistencies in the other party’s testimony, the fact finding report and other documents

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Motions to reopen

• WHEN: Within 21 days of the date the referee mailed the decision

• WHY:

– Referee made a clear mistake on facts or law.

– Failed to participate in referee’s hearing• Must show good cause for failing to

participate AND for failing to request a postponement

– New evidence• Must show why the new evidence was not

presented at the referee’s hearing and why it would change the result

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Appeal to the Board of Review

• You must file the appeal within 21 days of the date the referee mailed the decision. Appeals may be filed by mail, fax or internet.

• You may request a copy of the hearing recording. – This does not extend the appeal period but you may request an

extension to file written argument.

• If contesting a credibility determination, point out inconsistencies and contradictions. Point to improper weighing of evidence.

• You may file a written argument. Use ADLIB to research the law.

• You may request a Full Board decision or a board hearing. You may seek to supplement the record.

• You may protest any procedural deficiencies.

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APPEAL TO COURT

• Must be filed within 30 days of the Board’s decision. • May be filed with the Board. The Board certifies the

record to the Superior Court.

• File a Motion to Correct Findings of Fact within two (2) weeks of the Board’s certification of the record to court, or request an extension if you have filed a request with the court asking it to order the Board to prepare a transcript. Objections to the Board’s decision on the Motion to Correct must be filed within two weeks of that decision. 32

APPEAL TO COURT – cont’d

• Motions to correct – – General Statutes § 31-249b– Practice Book §§ 22-4 through 22-9– Regs., Conn. State Agencies § 31-237g-51a

• Key Concept:– If you fail to file a motion to correct, the court will not be

able to disturb the Board’s findings of fact, even if the Board modified the Referee’s findings of fact without having conducted its own hearing. See Calnan v. Administrator, 43 Conn. App. 779 (1996).

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Substantive Law

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Conn. General Statutes § 31-222 et seq.

Regs., Conn. State Agencies § 31-235-1 et seq.

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Disqualifications: Discharges and Suspensions

The employer has the burden of proof in a discharge/suspension case.

If the discharge or suspension is disqualifying, the claimant will be ineligible for benefits until he or she returns to work and earns ten times his or her weekly benefit rate.

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A disqualification will be imposed of the claimant was discharged or suspended:

•For wilful misconduct in the course of the individual's employment;

•For felonious conduct;

•For conduct constituting larceny of property or service, the value of which exceeds twenty-five dollars, or larceny of currency, regardless of the value of such currency;

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For participation in an illegal strike;

During a term of imprisonment of thirty days or longer (must have been sentenced and begun serving at the time of the suspension/discharge); or

Because he or she was disqualified from performing the work the individual was hired to do as a result of a drug or alcohol testing program mandated by and conducted in accordance with state or federal law.

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Discharges and Suspensions: Wilful Misconduct

Must be “in the course of” the employment: (a) during working hours; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of employment or doing something for the employer's benefit.

Exception: Public trust employees, where off-duty conduct is regulated by employment contract or government regulation.

•Exception: Where off-duty misconduct is accomplished by “exploitation of the employment agreement.”

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Discharges and Suspensions: Wilful Misconduct

Pursuant to General Statutes § 31-236(16), there are

Three definitions of wilful misconduct:

(1) deliberate misconduct in wilful disregard of the employer's interest;

(2) a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied; and

(3) Three separate instances of absenteeism, without good cause or proper notice, within a twelve-month period.

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Discharges and Suspensions: Deliberate Misconduct

Regs., Conn. State Agencies § 31-236-26a:

Misconduct: an act or omission which was contrary to the employer's interest; conduct that is not consistent with the standards of behavior which an employer may reasonably expect from an employee.

Deliberate: act or omission was intentional or with reckless indifference for the probable consequences.

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Discharges and Suspensions: Deliberate Misconduct

Regs., Conn. State Agencies § 31-236-26a (cont’d):

Wilful Disregard of the Employer's Interest: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he or she understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature.

Examples: sleeping on the job, fighting at work, falsifying work records

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Discharges and Suspensions: Knowing Rule Violation

Employer has burden of proving all elements set forth in Regs., Conn. State Agencies § 31-236-26b:

• Rule or policy was effectively communicated;

• The individual's conduct violated the particular rule or policy;

• The individual was aware that he or she was engaged in such conduct;

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Discharges and Suspensions: Knowing Rule Violation

Rule must be reasonable in light of the employer's lawful business interest;

Rule must be uniformly enforced, in that similarly situated employees are treated in a similar manner when a rule or policy is violated;

Rule must be reasonably applied, in that the adverse personnel action taken by the employer is appropriate in light of the violation and the employer's lawful business interests, and considering any compelling mitigating circumstances; and

The violation is not the result of the individual's incompetence or inability to adhere to the rule.

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Discharges and Suspensions: Absenteeism

General Statutes § 31-236(a)(16):

• Absenteeism is wilful misconduct if there are three instances of disqualifying absenteeism, including the final incident, within a twelve-month period.

• An absence is disqualifying if it is either without good cause or without proper notice.

• The absenteeism provision applies only in those cases where the claimant has failed to report to work at all. However, leaving work early and tardiness may constitute wilful misconduct under the deliberate misconduct or rule violation provisions.

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Regs., Conn. State Agencies § 31-236-26d(b)(1):

• “Good cause for absence from work” means any compelling personal circumstance which would normally be recognized by the individual’s employer as a proper excuse for absence, or which would prevent a reasonable person under the same conditions from reporting for work.

• Examples: personal illness or injury which prevented the individual from reporting to work; an isolated, unforeseen transportation difficulty (car stuck in snow); incarceration

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• “Notice” means notification to the employer of absence from work through any reasonable method and within any reasonable timeframe prescribed by the employer. Regs., Conn. State Agencies § 31-236-26d(b)(2).

• Failure to Give Notice: even if the individual had good cause for absence from work, such absence shall be counted as a separate instance if the individual failed to give notice of such absence when such notice could have been reasonably provided under the circumstances.

• Compelling personal circumstances: an individual’s failure to provide notice will be excused if the individual’s failure was due to compelling personal circumstances which would have prevented a reasonable person in the same circumstances from providing notice.

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Disqualifications: Voluntary Leaving

• The burden of proving good cause is on the claimant. An individual who voluntarily quits suitable work will be disqualified unless he or she left for “good cause attributable to the employer.”

• “Good cause” for leaving the employment must relate to the wages, hours and working conditions. Purely personal reasons for leaving are generally disqualifying, although there are exceptions.

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Voluntary Leaving: Good Cause May Include...

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Wages: breach of employment agreement; violation of state/federal wage laws; unilateral reduction in pay; failure to pay wages in good funds; compensation based on piece rate or commission resulted in a significantly lower wage than expected

•Hours: substantial change to hours that has a significantly adverse effect; violation of state/federal law re: hours; irregular or excess hours which would endanger the individual's health or safety.

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Voluntary Leaving: Good Cause – Working Conditions

Substantial change to a working condition that had a significantly adverse effect upon the individual

Conditions that endanger the individual's health or safety to a greater degree than is customary for the employer's industry

Conditions that adversely affect health or aggravate an existing medical condition

Conditions that violate worker health and safety laws or equal opportunity laws

Physical abuse or a pattern of verbal abuse that would be offensive to a reasonable person

Requirement to perform illegal, dishonest or immoral activity, or activity that would unduly interfere with the exercise of religious belief

Threat or intimidation as the result of participation in any lawful union activity

Breach of definite promise to promote

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Disqualifications: Voluntary Leaving – Key Concepts

Alternatives: The claimant must explore alternatives prior to leaving. Unless he or she can prove that it would have been futile, an individual who fails to complain to the employer and seek a remedy will not have good cause for leaving.

Trial period doctrine: An individual may leave during the trial period if the job is not suitable or what was expected and avoid disqualification. Because the claimant may leave for essentially subjective reasons, the requirement to explore alternatives is more relaxed. Trial period is generally 30 days but may be longer if there is an explicit probationary period or job can’t be assessed in 30 days.

Acquiescence: an individual who accepts unsuitable conditions for an extended period without complaint has waived claim that the conditions constitute “good cause,” unless can show reason for inaction.

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Voluntary Leaving: Statutory Exceptions

• Loss of transportation other than one's personally owned vehicle, provided no reasonable alternatives are available (employer relieved of charges);

• Quit to care for a spouse, child or parent with an illness or disability (employer relieved of charges);

• Leaving to accept recall by a former employer;

• Leaving to protect the individual, child or parent

•from domestic violence.

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Voluntary Leaving: Statutory Exceptions

• Leaving part-time to accept full-time employment;

• Leaving solely due to governmental regulation or statute;

• Leaving because spouse is in military and

was required to relocate (employer

relieved of charges).

“Trailing spouse”: leaving because spouse has

new job or has been transferred and individual can

no longer commute

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Disqualifications: Refusal of Work

Pursuant to Regs., Conn. State Agencies § 31-236-1, an individual is ineligible for benefits, until he or she returns to work and earns six times the weekly benefit rate, if he or she without sufficient cause:

(1) Fails to apply for available, suitable work when so directed by the Administrator or by the public employment bureau; or

(2) Fails to accept suitable employment when offered to the individual by the public employment bureau or by an employer.

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Disqualifications: Refusal of Work

Sufficient cause to reject an offer or work is generally less stringent than “good cause” to leave current employment.

Suitable work: work of lesser skill or at lower wage will not be deemed suitable unless claimant has had a reasonable opportunity to find a job at higher skill or wage level.

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Refusal of Work: Statutory Exceptions

The position refused was being offered due to a strike or lockout;

The wages, hours or other conditions are substantially less favorable than those prevailing for similar work in the locality;

As a condition of being employed the individual would be required to join a company union or resign or refrain from joining any bona fide labor organization;

The job is between one and six o'clock in the morning and these hours would risk safety or morals or there is no transportation during these hours;

The individual would be required to agree not to leave such position if recalled by the individual's former employer.

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Basic Eligibility Requirements: Able to Work

• An individual must be able to work for each week benefits are claimed.

• An individual is physically and mentally able to work so long as the individual is capable of performing some type of remunerative work. Regs., Conn. State Agencies § 31-235-4.

• An individual who is addicted to drugs or alcohol must establish that his or her addiction is sufficiently under control to be able to work.

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Basic Eligibility Requirements: Available for Work

• An individual must be genuinely exposed to the labor market: ready, willing, and able to accept suitable work.

• An individual must be available for work within a reasonable distance of his residence.

• An individual must be available for work for those days and hours during which the work for which the individual is suited is customarily performed.

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Basic Eligibility Requirements: Available for Work

• Students are not per se unavailable. Special student availability rules govern to what extent a student may restrict his or her availability based on class schedule.

• To be eligible for benefits for any week, the individual must be available for full-time work during that week.

• Exception: Effective 10/1/06, an individual with a physician-documented, chronic or long-term physical or mental impairment may limit availability to part-time work, provided that the impairment does not effectively remove him or her from the labor force. General Statutes § 31-235(c); Regs., Conn. State Agencies § 31-235-6a.

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Basic Eligibility Requirements: Reasonable Efforts to Find Work

An individual must make reasonable efforts to find work to be eligible for benefits in a particular week.

• Quantity of efforts: Generally, three employer contacts per week.

• Quality of efforts: Must be directed toward a specific employer. The method of contact depends on the type of work sought.

The lack of an active work search may also

support a finding that the individual is not

truly available for work.

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RESOURCES

The Employment Security Appeals Division’s website and the Connecticut Labor Department’s website have valuable resources and features, including contact information/directions for the appeals division offices, the “Claimant’s Guide to the Appeals Process”, FAQs, the video “Preparing for an Appeal Hearing”, telephone hearing information, links to the statutes and regulations, an online hearing docket and internet appeal functionality.

“Unemployment Appeals”at www.ctdol.state.ct.uswww.ctboard.org/

http://www.ctdol.state.ct.us/appeals/esappeal.htm

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RESOURCES: LEGAL RESEARCH

The sites include links to Connecticut’s Unemployment Insurance statutes and substantive regulations, as well as the Appeals Division’s procedural regulations.

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Research precedent decisions on ADLIB, an electronic index of decisions of the Connecticut Employment Security Board of Review.

http://ctboard.org/ADLIB.asp

RESOURCES: LEGAL RESEARCH

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A party may file an Internet appeal to the Referee, the Board of Review or to the Superior Court. A party may also file a motion to reopen a decision of the Referee of the Board of Review.

http://www.ctdol.state.ct.us/appeals/ClmtAppeal.htm

RESOURCES: FILE AN APPEAL ONLINE

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Use the online hearing docket to look up Referee hearings by case number, location, date, party or representative name.

http://www.ctboard.org/docket/SearchDocket.asp

RESOURCES: ONLINE HEARING DOCKET

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Prepare your client (and yourself) for the Referee’s hearing by viewing a video of a mock hearing.

http://www.ctdol.state.ct.us/appeals/Video2.htm

RESOURCES: VIDEO

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“Joblessness has wreaked financial and emotional havoc on the lives of many of those out of work. . . causing major life changes, mental health issues and trouble maintaining even basic necessities.”

- Poll Reveals Trauma of Joblessness in U.S., The New York Times, December 14, 2009.

“Of all the aspects of social misery nothing is so heartbreaking as unemployment.”

- Jane Addams, Nobel Peace Prize Laureate

unemployment compensation: the ui program, the appeals process and what’s new in ui

Documents

notice of hearing

hearing notice

referees hearing

informal hearing

prehearing procedures

unemployment claims

unemployment appeal

benefits referee