Massachusetts Continuing Legal Education September 25, 2013

1. Massachusetts Continuing Legal Education September 25, 2013 Representing Unemployed Workers at Unemployment Insurance Hearings

2. 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

3. 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-webapp-01.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.

4. 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.

5. The Administration of Unemployment& Job Training Programs

6. 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)

7. 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; 4,5,6-Wednesday; 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.

8. 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

9. 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.

10. 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.

11. Must any job be accepted? 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 No, only “suitable” job. A job is not suitable if:

12. 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.

13. 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.

14. 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)

15. 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.

16. Health Insurance for the Unemployed (1) 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. Must be 400% or less of FPL, MA resident, eligible for MA UI from a MA employer

17. Health Insurance (2) 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 (1-877-623-6765 or www.MAhealthconnector.org) After December 31, 2013

18. 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.

19. Non-Citizens • 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

20. Non-Citizens 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

21. Sequence of a Claim

22. 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.

23. Sequence of a Claim (2) 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) If not a layoff, DUA conducts an investigation

24. 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

25. 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).

26. 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

27. 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.

28. Sequence of a Claim (7) 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. • Board of Review may do the following:

29. 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

30. 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.

31. 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.

32. 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.

33. The DUA Hearing

34. 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) The DUA Hearing (1) Informal Fair Hearing Rules:801 CMR 1.02

35. 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 onlyif strategic to do so The DUA Hearing (2)

36. 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 The DUA Hearing (3) Review docs in DUA’s Hearing File

37. The DUA Hearing (4) 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

38. Present witnesses Cross examination Oral testimony Documentary evidence The DUA Hearing (5) Rights and duties of parties

39. 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 The DUA Hearing (6) Direct Examination Do not ask leading questions!

40. Is client able to work? Is client available for work? Is client actively seeking work? Is the job suitable? The DUA Hearing (7) Direct Examination Prepare you client for hidden traps

41. Your client or your witness After your witness is cross-examined, you can re-direct (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 The DUA Hearing (8) Re-Direct Examination

42. 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 The DUA Hearing (9) Cross Examination Only if you must!

43. Relevance Hearsay Introducing a document into evidence * e.g., authenticity of document: dated, signed, letterhead Privilege The DUA Hearing (10) Documents and Objections

44. 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 The DUA Hearing (11) Closing Argument

45. DUA provides interpreters at hearings at no cost to claimants * 2 hour hearing Claimant or claimant’s advocate must request interpreter Interpreters Problems with Interpreters? Contact: Marisa de la Paz, DUA Multilingual Services, (617) 626-5471

46. Based on Separation DISQUALIFICATION

47. Disqualification: Discharge (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 Discharge: G.L. c. 151A, § 25(e)(2)

48. Discharge: “Deliberate Misconduct” … Claimant’s state of mind Intentional disregard of employer’s interest and expectations Employer must prove BOTH statutory elements Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest

49. Discharge: “Knowing Violation” (1)… A knowing violation requires intent Claimant must have intendedto 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 of a “reasonable and uniformly enforced” rule or policy

50. 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