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Kerry O’Brien Inside the Mind of the TWC Hearing Officer

Kerry O’Brien Inside the Mind of the TWC Hearing Officer. In this talk, we’ll cover: . Who are the hearing officers? How do they make their decisions? How can I use the process to help my client in related litigation?. What kind of hearings are we talking about?. PART ONE:

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Kerry O’Brien Inside the Mind of the TWC Hearing Officer

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  1. Kerry O’BrienInside the Mind of the TWC Hearing Officer

  2. In this talk, we’ll cover: • Who are the hearing officers? • How do they make their decisions? • How can I use the process to help my client in related litigation?

  3. What kind of hearings are we talking about?

  4. PART ONE: Who are the hearing officers?

  5. What kind of schedules do they run?

  6. Typical schedule (4 days/week) 8:00 a.m. Hearing 9:00 a.m. Hearing 10:00 a.m. Hearing 11:00 a.m. Hearing 12pm-1pm Lunch 1:15 p.m. Hearing 2:15 p.m. Hearing 3:15 p.m. Hearing

  7. How does this affect their decision making process?

  8. PART TWO: How do the hearing officers make decisions?

  9. Who has the burden of proof? The employer or the claimant? Neither. From the hearing officer’s handbook: “…it is the Hearing Officer's duty to elicit all the available facts and render judgement based upon the evidence. In a sense, it may be said that the Hearing Officer has the procedural burden of proof.”

  10. Then what is my role as an attorney?

  11. How is it best to conduct myself during the hearing to help my client?

  12. What types of objections are going to be worth making in a hearing?

  13. How is the Hearing Officer’s analysis affected if the separation was a quit versus a termination?

  14. TWC Appeals Policy & Precedent Manual

  15. Example from Misconduct: Failure to perform to the employer’s standards

  16. So when is someone’s performance misconduct? GENERAL PRINCIPLES: Someone who is working to the best of their ability but is unable to meet the employer’s standards has not committed misconduct. Appeal No. 1456-CA-77. Where a claimant has performed her work to the best of her ability, her inability to meet the employer's standards or inability to perform the work to the employer's satisfaction does not constitute misconduct connected with the work.

  17. However, if an employee is able to meet the employer’s standards at one point and then stops meeting the employer’s standards, it is presumed that the employee is being negligent in the absence of some other explanation for the decline in performance.

  18. Also – if the work is so simple that the average person should be able to do it if they are reasonably trying, that is misconduct. Example from the manual: A dishwasher should be able to wash to properly wash dishes.

  19. Example from Voluntary Leaving Dissatisfaction with working conditions Appeal No. 3613-CA-76. A claimant who quits work because of some dissatisfaction with working conditions without affording the employer any opportunity to resolve the situation thereby voluntarily quits without good cause connected with the work.

  20. What if it’s disputed whether the employer quit or resigned? “We’re going to let you go, but if you want to put in your resignation notice right now, you can. Here’s a piece of paper.”“Dear Employer - I have decided to move on to another opportunity and hereby resign.”

  21. What do you do about a he-said/she-said situation where a key issue is simply one person’s word against another? All the Hearing Officer has is (1) what you say, and (2) how you say it.

  22. PART THREE: How can I use the process to leverage related litigation?

  23. Employer’s Perspective If you think there is any reasonable chance that there will be litigation – do you want your key witnesses testifying under oath in a recording hearing over some measly unemployment benefits?

  24. Employee’s Perspective Do I, the attorney, have to provide any notice of representation?

  25. Is there any requirement that I produce documents a certain time before the hearing?

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

  27. How do I subpoena documents for the Appeals Tribunal hearing?

  28. Can I use a transcript of the hearing in litigation?

  29. Can I use the TWC Appeals Tribunal decision in the litigation? No. Sec. 213.007. COLLATERAL ESTOPPEL DOCTRINE INAPPLICABLE. A finding of fact, conclusion of law, judgment, or final order made under this subtitle is not binding and may not be used as evidence in an action or proceeding, other than an action or proceeding brought under this subtitle, even if the action or proceeding is between the same or related parties or involves the same facts.

  30. Are the TWC benefits a mandatory offset to the employee’s lost wages damages? State Court: Yes, mandatory offset. Federal Court (5th Circuit): No. Discretionary. NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337 (1951) – Receipt of unemployment benefits was collateral. Many other federal circuits (e.g. 8th, 3rd, 11th, 6th, 9th, 4th) prohibit lost wages offset for unemployment benefits.

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

  32. Questions? Kerry O’Brien ko@obrienlawpc.com

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