Massachusetts Continuing Legal Education September 25, 2013 Representing Unemployed Workers at Unemployment Insurance Hearings What Is Unemployment Insurance? Non-means tested cash assistance program established 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 G.L.c.151A, sec. 74: unemployment law shall be liberally construed in favor of the worker and the worker’s family 2 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 (2013-2014) DUA web site: www.mass.gov/lwd/unemployment-insur/ Board of Review Decisions: http://dwd-webapp01.detma.org/bor_decisions DOL website: workforcesecurity.doleta.gov/unemploy/ Legal Services Website: www.masslegalservices.org Other good resources: Thomas A. Mauet, Trial Techniques Robert Schwartz, Your Rights on the Job, 5th Ed. 3 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. 4 The Administration of Unemployment & Job Training Programs Executive Office of Labor & Workforce Dev. Secretary of Labor Joanne Goldstein Department of Unemployment Assistance (DUA) Director Michelle Amante (UI & Labor Market Data) Department of Career Services (DCS) Director Alice Sweeney (One-Stop Career Centers) 5 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 (20 weeks for federal UI) capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation) Base Period (BP) & Benefit Year (BY) 6 How To Apply File claim or check claim status with MA Dept. of Unemployment Assistance (DUA) Call 617-626-6800 or toll-free 1-877-626-6800, 8:30-4:30 Call w/SS# 0,1- Monday; 2,3 - Tuesday; 4,5,6Wednesday; 7,8,9 - Thursday; any # - Friday Walk in help at UI and career centers Since 7/1/13: UI Online (English only)– see Guide, Q.1 Practice tips: UI application complete only when get to “confirmation page;” if clients on UI Online choose mail correspondence, will not get email reminders. 7 Calculating Unemployment Benefits Usually, about ½ average weekly gross wages up to maximum set on Oct. 1 (now $674/week) + allowance of $25 per dependent child Dependency allowance capped at 50% of UI check Benefit usually based on 2 HQ earnings (div. by weeks, div. by 2 = WBA) Total benefits are < of 36% of BPE or 30 x WBA BPE = Base Period Earnings; HQ = high calendar quarter; WBA = weekly benefit amount 8 Duration of UI Benefits State UI may last up to 30 weeks (during federal benefits 26 weeks) May be less if work income fluctuated or worked less than a year UI may be extended to participate in DUA-approved training, by federal extended benefits, or both. 9 Federal Extended UI Emergency Unemployment Compensation (EUC08) 7/6/08 – 12/28/13 Eligibility: * currently unemployed * worked 20 weeks during BP: (3 tests - 1 ½ x WBA; 40 x WBA; [NEW]: 20 weeks FT work) * EUC08 “Tier I” – exhausted state benefits before 12/21/13 - can get 14 weeks and another 14 weeks under “Tier II” * last payable week ends 12/28/13. Amount: Sequestration cut of 12.8% is reduced to 7.2% on 9/29/13. Duration: was up to 99 weeks total, now - 26 weeks (state) & 28 weeks (federal) = 54 weeks; after federal benefits end on 12/28/13, state UI maximum returns to 30 weeks. 10 Must any job be accepted? No, only “suitable” job. A job is not suitable if: detrimental to health, safety, or morals doesn’t fit employee’s training or experience has worse pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test” commuting distance is unreasonable/not comparable vacant directly due to strike, lockout, or other labor dispute requires joining union or limits joining or retaining membership in a union Special rules apply for Domestic Violence situations 11 To ensure UI benefits continue or to establish eligibility if initially denied: Every week must use English-only UI Online or TeleCert (English, Spanish, Portuguese) to certify active work search. Claimant must keep certifying eligibility even if initially denied UI Predate may be possible - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause reasons) – if more than one week, contact call center 617-626-6800 Work search must be documented: 3 work search contacts per week, and keep work search log in case DUA requests copy See Guide, Q1 and Q6. 12 To ensure continued federal benefits: Claimants have more stringent work search requirements including: Keeping a log of all work search activity Mandatory meetings at local career centers Alleged failure without good cause (see SRH 1614) may result in suspension or termination of UI! Contact GBLS or local legal services office for help. 13 Can a claimant work part-time without losing the whole UI benefit? Yes – if earns amount less than 1/3 of WBR Gross earnings up to 1/3 of WBR disregarded -- “earnings disregard” Additional part time earnings are deducted $ for $ from UI. Must report earnings DUA does a cross match with DOR NOTE: If quit part-time job for disqualifying reason after leaving primary job, deductions will continue to be made – “constructive deduction” (CD) [NEW]: CD regs 430 CMR 4.76 (8/16/13) eliminate or reduce application of CD: * if had no knowledge that would lose primary job * if part-time work was for fixed period, CD limited to that period * no CD if returns to part time job or finds new part time job. WBR = weekly benefit rate (excludes dependency allowance) 14 Can a claimant participate in training while receiving UI? Yes, must be first approved by DUA Training program: 2 years or 3 years for ESOL/Basic combined with vocational training; stand-alone ESOL is approved Job search waived while in training Can get up to 26 weeks of extended UI during training Extended UI for training: after 12/28/13 must apply for training w/in 15 weeks of a new or continued claim (unless tolled) Note: 15 week req. tolled during federal extension, i.e., until Dec. 28, 2013 and can apply even if no longer getting UI benefits if applied anytime since July 6, 2008! See Guide, Q. 54 and DUA website. 15 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: Partial reimbursement for premiums (up to 80%: currently up to $1,350 for family plan and $550 for individual coverage) (B) Direct Coverage Plan: Available if no prior coverage, can’t afford premiums, expenses exceed 7% of income, COBRA option expired The sooner the claimant applies the better. 16 Health Insurance (2) After December 31, 2013 Due to ACA implementation, MSP (including premium assistance) will end: Open enrollment through Health Connector Enrollment begins October 1, 2013 and must be completed by December 23, 2013 to avoid gap in coverage Enrollment is through Health Connector – 1-877-MA-ENROLL (1877-623-6765 or www.MAhealthconnector.org) 17 Is UI Taxable? Yes. If want taxes withheld, must make a request. DUA sends out 1099-G, available at www.mass.gov/dua/webcert, call 617/626-5647, or request through UI Online (“Payment History”) 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. 18 Must be authorized to work to collect UI but: • Different requirements in base period & benefit year: - Base period: 3 categories – 1) lawfully admitted for permanent residence at time of work; 2) lawfully present to work; 3) PRUCOL - Benefit year: must prove work authorization PRUCOL = permanently residing under color of law – See Guide, Q. 51 19 Systematic Alien Verification of Entitlement (SAVE) Must provide A# and document verifying work authorization – DUA checks ICE database through SAVE - “primary verification” – If problem with verification - photocopies of documents sent to ICE “secondary verification” Note: UI must be paid during verification Contact GBLS if questions about immigration status 20 21 Sequence of a Claim (1) Claimant files claim with DUA on-line or telephone DUA notifies employer of claim 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 timely respond - not a party unless “good cause” Alert: watch out for responses by employer “agents” e.g., TALX, USC. 22 Sequence of a Claim (2) If not a layoff, DUA conducts an investigation DUA requests info from employer and claimant DUA makes benefit determination DUA issues a Notice to Claimant of Disqualification or DUA provides UI benefits (debit card is default; must choose direct deposit – no more paper checks) 23 Sequence of a Claim (3) Claimant’s Statement assist claimant before presenting her claim to claims adjuster (by phone or UI Online use the fact-finding questions in SRH help with chronology, relevant facts, state of mind, and supporting documents 24 Sequence of a Claim (4) Employer’s Statement Employers often outsource UI functions to companies who may have no first-hand knowledge UI Online favors employer agents who know right “buzzwords” and as repeat users can more easily navigate it Consider contacting DUA Determinations Dept. for reversal if information is erroneous Employer must swear to truth of statement under pains and penalties of perjury. 430 CMR 5.02 (8). 25 Sequence of a Claim (5) Appeals If UI denied claimant has 10 days to request hearing (30 days if good cause) If UI granted employer has 10 days to appeal (30 days if good cause) Note: 60 days if claimant is LEP and no limit if LEP and not informed in primary language. 430 CMR 4.14. Appeals can be requested through UI Online LEP = Limited English Proficient 26 Sequence of a Claim (6) DUA sends hearing notice – even if posted on UI Online, must also be mailed (watch out for hearing postponement deadline) DUA holds administrative hearing DUA issues a hearing decision (should issue no more than 45 days of hearing request) Losing party has 30 days to appeal to Board of Review by fax, mail (post mark date), or UI Online. Always appeal meritorious case to Board --- if lack resources, advise claimant to do so. 27 Sequence of a Claim (7) Board of Review may do the following: Deny further review Do nothing - deemed denied after 21 days (court appeal due within 51 days of appeal) Allow & remand to DUA Allow & Board reviews record Allow & Board holds hearing (very rare) (G.L. c. 151A, § 41) Note: Board now posts important decisions on web. 28 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 UI Online or TeleCert during appeal process 29 Reconsideration/Redetermination Remedy if time for appeal expired (& not more than one year since the most recent decision) Letter to DUA Director Michelle Amante 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 benefits are stopped G.L. c. 151A, § 71; 430 CMR 4.30 et seq; 11.01 et seq. 30 Waiver of Overpayment Eligible for Waiver of Overpayment if: there is no proof of fraud and re-paying the money would: Either “defeat the purpose of benefits” Or would be against “equity and good conscience” G.L.c. 151A, sec. 69; 430 CMR 6.00 et seq. Note: UI Online has caused erroneous overpayments or overpayments established many years or decades ago. Contact Cheryl.Scott@state.ma.us. 31 Is it really fraud? Waiver available only if no finding of fraud Examine whether fraud finding includes finding of fraudulent intent -- i.e., “state of mind” to intentionally defraud DUA Did claimant have capacity to commit fraud – should consider age, intelligence, physical, mental, educational, and linguistic limitations, including facility with English OR did claimant make a good faith mistake of fact If no intent, challenge through hearing or redetermination Regulations regarding “capacity” and “good faith” pending before DUA as part of Brugman litigation brought by Brian Flynn, GBLS & Margaret Monsell, MLRI. 32 33 Informal Fair Hearing Rules: 801 CMR 1.02 Agency: DUA/Hearings Department Hearing Officer: Review Examiner Parties: Claimant and Employer (unless single party issue) Your prep: ask to observe a hearing or view mock hearing (available on You-Tube) 34 Who can appeal: either party Evidence: formal rules of evidence do not apply Proceedings: electronically or tape-recorded Discovery: DUA file Personnel Record (G.L. c. 149, §52C) Request only if strategic to do so 35 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 Any other documents submitted by parties to claims adjudicator or otherwise submitted through UI Online 36 Claimant preparation: 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 with supervisor/colleagues and then prepare client Describe hearing “scene” and what to expect at hearing 37 Rights and duties of parties Present witnesses Cross examination Oral testimony Documentary evidence 38 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 Do not dwell on unimportant details Do not interrupt your witness 39 Direct Examination Prepare you client for hidden traps Is client able to work? Is client available for work? Is client actively seeking work? Is the job suitable? 40 Re-Direct Examination Your client or your witness After your witness is cross-examined, you can redirect (only if you need to do so) Do not use it to bring out nit-picking points Use your re-direct to: * Clarify a point, or * Elaborate on a subject (brought out on cross) that helps your client 41 Cross Examination Only if you must! Did the witness hurt you? Do you have real ammunition? Do you know how the witness will answer the question? Ask leading questions (require yes/no) Avoid “why” or open-ended questions 42 Documents and Objections Relevance Hearsay Introducing a document into evidence * e.g., authenticity of document: dated, signed, letterhead Privilege 43 Closing Argument Make it short (< 2 minutes) & to the point Connect the dots Use to highlight the most favorable facts Do not recite the entire hearing Do not lecture the review examiner on the law Can submit proposed findings of fact & rulings of law * If necessary, ask for 24 hours to conform facts to evidence 44 DUA provides interpreters at hearings at no cost to claimants * 2 hour hearing Claimant or claimant’s advocate must request interpreter Problems with Interpreters? Contact: Marisa de la Paz, DUA Multilingual Services, (617) 626-5471 45 Based on Separation 46 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 DV Includes individual’s need to address the physical, psychological and legal effects of DV 47 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 48 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 49 Discharge: “Knowing Violation” (2) Rule or policy must be reasonable Rule or policy must be uniformly enforced both with respect to other employees and the individual employee (employer cannot disqualify a person for violations it had repeatedly tolerated in the past without imposing discipline) NOTE: Incompetence does not constitute a violation 50 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 51 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 52 Voluntary Quit: “Good Cause”… attributable to the Employer Claimant must have made reasonable efforts to resolve the problem unless futile Exceptions: Domestic violence & cases involving allegations of sexual harassment; racial, or other unreasonable harassment General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficient Consult: Your Rights on the Job to determine if employment law violations. 53 Voluntary Quit: “Urgent, Compelling & Necessitous” Non work-connected reason – G.L.c.151A, sec. 25(e)(3): Claimant must have made reasonable efforts to preserve job, unless futile (therefore, consider state of mind) 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) May raise “availability” issues Key to these cases is thorough exploration of client’s circumstances. 54 Special rules for temp agency jobs: * Claimant must prove that contacted temp agency to see if more jobs available before applying for UI * Written notice must be provided to claimant in customary way and include statement that failure to request reassignment will affect rights to UI, & the job must be suitable. G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)); and many good Board of Review decisions (See Guide, Q. 38). Contact GBLS if claimant denied UI after completing a temp job. 55 Voluntary Quit Example…disqualifying or not? Shift change or transfer Unfair reprimand Harassment Inadequate pay Lack of transportation Domestic violence Temp assignment ends 56 Contacts for Further Assistance Employment Rights Coalition (ERC) Margaret Monsell, mmonsell@mlri.org Greater Boston Legal Services (GBLS) (federal benefits, limited English proficiency, noncitizens, temporary employees, UI Online, work search requirements), 617-603-1810 Claimant UI Fraud Allegations: Brian Flynn, bflynn@gbls.org; Margaret Monsell, mmonsell@mlri.org UI Online: Cheryl Scott, Director of MA Workforce Investment Board, Cheryl.Scott@state.ma.us 57