Unemployment Insurance

September 13, 2012

Massachusetts Continuing Legal Education

Massachusetts Law Reform Institute

&Greater Boston Legal Services

Basic Benefits Training

What Is Unemployment Insurance?What Is Unemployment Insurance? Non-means tested cash assistance program established by Congress in Non-means tested cash assistance program established by Congress in

1935 1935

Law and policies set generally by federal governmentLaw and policies set generally by federal government

States determine benefit levels, duration & disqualificationStates determine benefit levels, duration & disqualification

Employers are source of funding for UI benefits, but only taxed on 1Employers are source of funding for UI benefits, but only taxed on 1stst $14,000 (Solvency Fund)$14,000 (Solvency Fund)

UI is first line of defense in a recessionUI is first line of defense in a recession

Section 74: the statute shall be liberally construed in favor of the worker Section 74: the statute shall be liberally construed in favor of the worker and the worker’s familyand the worker’s family

Resources to Understand Resources to Understand UnemploymentUnemployment

State law: G.L. c. 151AState law: G.L. c. 151A DUA regs: 430 CMR; 801 CMR sec. 1.02 DUA regs: 430 CMR; 801 CMR sec. 1.02 DUA policies: Service Representatives HandbookDUA policies: Service Representatives Handbook Mass. Unemployment Advocacy Guide (2012-2013)Mass. Unemployment Advocacy Guide (2012-2013) DUA web siteDUA web site: : www.mass.gov/dua Board of Review DecisionsBoard of Review Decisions: :

http://dwd-webapp-01.detma.org/bor_decisions DOL websiteDOL website: : workforcesecurity.doleta.gov/unemploy/ Legal Services WebsiteLegal Services Website: : www.masslegalservices.orgwww.masslegalservices.org Other good resources: Thomas A. Mauet, Trial Techniques Robert Schwartz, Your Rights on the Job, 5th Ed.

Funding Unemployment Funding Unemployment Insurance Insurance

A tax is levied on every employer covered by the law.A tax is levied on every employer covered by the law.

The tax rate is based on the taxable wage base, the # of The tax rate is based on the taxable wage base, the # of employees, the # separated from employment in the past year, employees, the # separated from employment in the past year, and tax schedule.and tax schedule.

Nonprofits and governmental employers can self-insure.Nonprofits and governmental employers can self-insure.

The Administration of The Administration of UnemploymentUnemployment

& Job Training Programs& Job Training Programs

Executive Office of Labor & Workforce Dev.Secretary of Labor Joanne Goldstein

Department Unemployment

Assistance (DUA)Acting Director Michelle

Amante(UI & Labor Market Data)

Department ofCareer Services (DCS)

Director George Moriarity

(One-Stop Career Centers)

Eligibility for Eligibility for UnemploymentUnemployment

UI eligibility if:UI eligibility if:

totally or partially unemployedtotally or partially unemployed separated from employment through no fault separated from employment through no fault earned at least $3,500 and worked approximately earned at least $3,500 and worked approximately

15 weeks in the prior year (20 weeks for federal UI)15 weeks in the prior year (20 weeks for federal UI) capable of, available for and actively seeking work capable of, available for and actively seeking work

(including part time work w/ or w/o reasonable (including part time work w/ or w/o reasonable accommodation)accommodation)

Base Period & Benefit YearBase Period & Benefit Year

How To ApplyHow To Apply

File a claim or check status of claim with the Massachusetts File a claim or check status of claim with the Massachusetts Department of Unemployment Assistance (DUA)Department of Unemployment Assistance (DUA)

Call 617-626-6800 or 1-877-626-6800Call 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.Call by last SS#: M-0,1,2; T-3,4,5; W-6,7;Th-8,9.

For more information, go to For more information, go to www.mass.gov/dua

Calculating An Calculating An Unemployment Check Unemployment Check

In most cases, UI will be about half of average weekly gross In most cases, UI will be about half of average weekly gross wageswages up to the maximum (currently $653/week) up to the maximum (currently $653/week) plus an allowance of $25 per dependent childplus an allowance of $25 per dependent child

Dependency allowance is capped at 50% of UI checkDependency allowance is capped at 50% of UI check

Check is usually calculated on the basis of the 2 HQ earnings, Check is usually calculated on the basis of the 2 HQ earnings, total benefits are the lesser of 36% of BPE or 30 x WBAtotal benefits are the lesser of 36% of BPE or 30 x WBA

Duration of UI BenefitsDuration of UI Benefits

State UI may last up to 30 weeks (now during fed. ext. - 26 State UI may last up to 30 weeks (now during fed. ext. - 26 weeks)weeks) May be less if work income fluctuated or worked less May be less if work income fluctuated or worked less

than a yearthan a year

(See UI Advocacy Guide, Appendix C)(See UI Advocacy Guide, Appendix C) UI may be extended UI may be extended

to participate in trainingto participate in training;; or when high unemployment rate triggers federal or when high unemployment rate triggers federal

extended benefitsextended benefits

Federal Extended UIFederal Extended UI

Program in effect from 7/6/08 – week ending 12/29/12 (originally 99 weeks through Program in effect from 7/6/08 – week ending 12/29/12 (originally 99 weeks through EUC Tier I, II, III, IV and EB)EUC Tier I, II, III, IV and EB)

Eligibility:Eligibility: 1)1) currently unemployedcurrently unemployed2)2) worked equivalent of 20 weeks during base periodworked equivalent of 20 weeks during base period3)3) EUC: Tier I - benefit year expired (BYE) between 5/5/07 & 12/15/12; Tiers II EUC: Tier I - benefit year expired (BYE) between 5/5/07 & 12/15/12; Tiers II

– previous Tier exhausted on or before 12/22/12; last payable week for EUC – previous Tier exhausted on or before 12/22/12; last payable week for EUC is 12/29/12.is 12/29/12.

4)4) EB: 3/22/09 thro’ 3/8/12; file by 4/1/12; last payable week – 4/7/12.EB: 3/22/09 thro’ 3/8/12; file by 4/1/12; last payable week – 4/7/12.

Current maximum: 26 weeks (state) & 41- 47 weeks (fed – EUC: Tier I – 20 wks if Current maximum: 26 weeks (state) & 41- 47 weeks (fed – EUC: Tier I – 20 wks if filed before 9/2/12, on or after 9/2/12 - 14 weeks; Tier II – 14 wks) = filed before 9/2/12, on or after 9/2/12 - 14 weeks; Tier II – 14 wks) = up to 54 - up to 54 - 6060 weeks (note: EB & Tier III & IV benefits no longer available). After fed. weeks (note: EB & Tier III & IV benefits no longer available). After fed. benefits end on 12/29/12, state benefits go back up to max of 30 weeks.benefits end on 12/29/12, state benefits go back up to max of 30 weeks.

Must any job be Must any job be accepted?accepted?

it is detrimental to health, safety, or moralsit is detrimental to health, safety, or morals it does not fit employee’s training or experienceit does not fit employee’s training or experience It has different pay, hours & benefits or doesn’t meet It has different pay, hours & benefits or doesn’t meet

the “the “the prevailing conditions of work testthe prevailing conditions of work test”” the commuting distance is unreasonable/not the commuting distance is unreasonable/not

comparablecomparable it is vacant due directly to a strike, lockout, or other it is vacant due directly to a strike, lockout, or other

labor disputelabor dispute it would require joining a co. union or limit joining or it would require joining a co. union or limit joining or

retaining membership in a union.retaining membership in a union.Special rules apply for Domestic Violence situationsSpecial rules apply for Domestic Violence situations

No, only “suitable” job. A job is not suitable if:

To make sure checks keep To make sure checks keep coming or to establish eligibility coming or to establish eligibility if initially denied:if initially denied:

Every weekEvery week must use WebCert or TeleCert (interchangeably) must use WebCert or TeleCert (interchangeably) to certify active work search.to certify active work search. TeleCertTeleCert: (617) 626-6338 (English and Spanish): (617) 626-6338 (English and Spanish) WebCertWebCert: go to : go to http://www.mass.gov/lwd/unemployment-insur/

and click on “File Weekly Unemployment Claims Online” located and click on “File Weekly Unemployment Claims Online” located on the right-hand side of the page to sign up for WebCerton the right-hand side of the page to sign up for WebCert

Claimant must keep certifying eligibility so that automatically receive UI Claimant must keep certifying eligibility so that automatically receive UI even if initially denied UI even if initially denied UI

Predate may be possible - see G.L. c.151A Predate may be possible - see G.L. c.151A §§ 62A (g) (employer’s 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause, inability to contact failure to provide notice); SRH 1622 (good cause, inability to contact DUA, unaware of right to file)DUA, unaware of right to file)

To make sure checks keep To make sure checks keep coming (2):coming (2):Under recently passed federal law, UI claimants will have more

stringent work search requirements while receiving federal benefits, 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 of UI!

Contact GBLS if this happens to your client.

Can a claimant work part-time Can a claimant work part-time without losing the whole UI without losing the whole UI check?check? Yes – If earn an amount less than one-third of UI Yes – If earn an amount less than one-third of UI

Gross earnings up to a third of the weekly benefit rate are Gross earnings up to a third of the weekly benefit rate are disregarded. This is the “earnings disregard.”disregarded. This is the “earnings disregard.”

Additional part time earnings are deducted $ for $ from UI. Additional part time earnings are deducted $ for $ from UI.

Must report earnings Must report earnings DUA does a cross match with DORDUA does a cross match with DOR

IMPORTANT NOTES: IMPORTANT NOTES: 1. If quit part-time job for a disqualifying reason, deductions will 1. If quit part-time job for a disqualifying reason, deductions will

continue to be made from UI check. This is a “constructive continue to be made from UI check. This is a “constructive deduction.”deduction.”

2. Partial earnings may result in a reduction of federal extended benefits 2. Partial earnings may result in a reduction of federal extended benefits after expiration of benefit year (if benefit year ended after expiration of benefit year (if benefit year ended beforebefore July 22, July 22, 2010), after July 22, 2010 can choose to continue on higher federal 2010), after July 22, 2010 can choose to continue on higher federal rate if will receive at least $100 or 25% more in benefits.rate if will receive at least $100 or 25% more in benefits.

Can a claimant participate in training while Can a claimant participate in training while receiving UI?receiving UI?

Yes, if first approved by DUA. Yes, if first approved by DUA. Training cannot last more than 2 years.Training cannot last more than 2 years.

3 yr. for combined ESOL/Basic with Vocational training; 3 yr. for combined ESOL/Basic with Vocational training; stand-alone ESOL is now approvedstand-alone ESOL is now approved

Job search is waived while in trainingJob search is waived while in training Extended UI for training: apply for training w/in Extended UI for training: apply for training w/in 15 weeks15 weeks of a of a

new or continued claim: new or continued claim: note tolled during federal extension, note tolled during federal extension, i.e. until Dec. 29, 2012i.e. until Dec. 29, 2012 if approved, can get up to if approved, can get up to 26 weeks26 weeks of extended UI during of extended UI during

training. (training. (Ex. G)) Can apply if benefit year ended and Can apply if benefit year ended and even if no longer even if no longer

collecting federal benefits.collecting federal benefits. Find a training program at One-Stop Career Centers Find a training program at One-Stop Career Centers

(see UI Advocacy Guide, Appendix A)(see UI Advocacy Guide, Appendix A) Pell grants up to $5,350 – see: Pell grants up to $5,350 – see: www.opportunity.gov

Health Insurance for the Health Insurance for the Unemployed (1)Unemployed (1)

Two Types of Coverage:Two Types of Coverage:(A)(A) Premium Assistance Plan:Premium Assistance Plan:

Claimant had prior coverageClaimant had prior coverage Claimant pays for existing coverageClaimant pays for existing coverage Partial reimbursement for premiums Partial reimbursement for premiums (up to 80%: currently up to $1,200 for family plan(up to 80%: currently up to $1,200 for family plan

and $500 for individual coverage) and $500 for individual coverage)

Must be 400% or less of FPL, MA resident Eligible for MA UI from a MA Employer

Health Insurance for the Health Insurance for the Unemployed (2)Unemployed (2)

If no prior coverage, orIf no prior coverage, or If financial hardship (150% poverty), orIf financial hardship (150% poverty), or Expenses exceed 7% of incomeExpenses exceed 7% of income COBRA option expired.COBRA option expired.Note: copays depend on type of hospital-consult MSP schedule of Note: copays depend on type of hospital-consult MSP schedule of

benefits; in addition, DUA has recently imposed weekly premiums for benefits; in addition, DUA has recently imposed weekly premiums for some enrollees in DCP which claimants must agree to have deducted some enrollees in DCP which claimants must agree to have deducted from their weekly check in order to remain eligible for DCP benefits, from their weekly check in order to remain eligible for DCP benefits, see 430 CMR see 430 CMR § 7.07(2)(b)(1) & (2).§ 7.07(2)(b)(1) & (2). See DUA’s website for more info. See DUA’s website for more info.

For information and application: For information and application: 1-800-914-4455 1-800-914-4455 or or 1-800-1-800-908-8801 908-8801

(B) Direct Coverage Plan

Is UI Taxable?Is UI Taxable?

Yes. If want taxes withheld, must make a request.Yes. If want taxes withheld, must make a request. DUA sends out 1099-G, available at DUA sends out 1099-G, available at

www.mass.gov/dua/webcert or call 617/626-5647 or call 617/626-5647 If choose to withhold taxes from UI:If choose to withhold taxes from UI:

10% of weekly benefit will be withheld for federal 10% of weekly benefit will be withheld for federal taxestaxes

5.3% for state taxes5.3% for state taxes If don’t withhold, responsible for taxes owed at tax If don’t withhold, responsible for taxes owed at tax

time.time.

Must be authorized to work to collect UI but:

• DifferentDifferent requirements in base period & benefit year:

- Base period: 3 categories (includes PRUCOL) (Ex. O) (2nd Page)

- Benefit year: must prove work authorization (Ex. N)

- Contact GBLS if questions about immigration status

Systematic Alien

Verification of Entitlement (SAVE)

– Needs to provide A# and provide document verifyingwork authorization (Ex. P)

– DUA sends it to ICE through SAVE: primary verification– If problem with document verifying work authorization;

additional verification (Ex. O)

Sequence of a Claim (1)Sequence of a Claim (1) Claimant Claimant files claim with DUAfiles claim with DUA DUA DUA notifies employer of claim (notifies employer of claim (Ex. A) Employer Employer has 10 days to respond has 10 days to respond

If the employer checks “laid off,” benefits start shortly after If the employer checks “laid off,” benefits start shortly after a one-week waiting period.a one-week waiting period.

If employer does not timely respond - not a party unless If employer does not timely respond - not a party unless “good cause”“good cause”

Alert: watch out for responses by employer “agents” e.g., Alert: watch out for responses by employer “agents” e.g., TALX, USC.TALX, USC.

Sequence of a Claim (2)Sequence of a Claim (2)

DUA requests info from employer (DUA requests info from employer (Ex. B) and claimant (Ex. C) DUA DUA makes benefit determinationmakes benefit determination ((Ex. D & Ex. E) DUADUA issues a Notice to Claimant of Disqualification ( issues a Notice to Claimant of Disqualification (Ex. F) oror DUADUA issues claimant checks issues claimant checks

If not a layoff, DUA conducts an investigation

Sequence of a Claim (3)Sequence of a Claim (3)

Claimant’s StatementClaimant’s Statement

assist claimant in presenting her claim to claims adjusterassist claimant in presenting her claim to claims adjuster

use the fact-finding questions in SRH use the fact-finding questions in SRH

help with chronology, relevant facts, state of mind, and help with chronology, relevant facts, state of mind, and supporting documentssupporting documents

Sequence of a Claim (4)Sequence of a Claim (4)

Employer’s StatementEmployer’s Statement

Employers outsource UI functionsEmployers outsource UI functions

Companies handling UI claims often have no first-hand knowledgeCompanies handling UI claims often have no first-hand knowledge

Consider contacting DUA Determinations Dept. for reversal if Consider contacting DUA Determinations Dept. for reversal if information is erroneousinformation is erroneous

Employer must now swear to truth of statement under pains and Employer must now swear to truth of statement under pains and penalties of perjury. 430 CMR 5.02 (8).penalties of perjury. 430 CMR 5.02 (8).

Sequence of a Sequence of a Claim (5)Claim (5)

Appeals:Appeals:

If benefits denied If benefits denied claimantclaimant has has 10 days10 days to request hearing (30 to request hearing (30 days if good cause) (days if good cause) (Ex. H)

If benefits granted If benefits granted employeremployer has 10 days to appeal has 10 days to appeal (30 days if good cause) (30 days if good cause)

New regulation – 60 days if claimant is LEP and no limit if LEP and New regulation – 60 days if claimant is LEP and no limit if LEP and

not informed in primary language. 430 CMR 4.14. not informed in primary language. 430 CMR 4.14.

Sequence of a Sequence of a Claim (6)Claim (6)

DUA DUA sends hearing notice (Note: postponement request deadline (sends hearing notice (Note: postponement request deadline (Ex. I) () (LucianoLuciano litigation) litigation)

DUA DUA holds administrative hearingholds administrative hearing DUA DUA issues a hearing decision (Ex. J)issues a hearing decision (Ex. J) Decision should issue within 45 days of hearing request Decision should issue within 45 days of hearing request Losing party has Losing party has 3030 days to appeal to days to appeal to Board of Review Board of Review (Ex. K) (Ex. K)

((Pavian: reaffirmed postmark rulePavian: reaffirmed postmark rule))

Always appeal meritorious case to Board --- if lack resources, advise Always appeal meritorious case to Board --- if lack resources, advise claimant to do so. claimant to do so.

Sequence of a Claim Sequence of a Claim (7)(7)

Deny further review (Ex. L)Deny further review (Ex. L) Do nothing at all. Case deemed denied after 21 days (court Do nothing at all. Case deemed denied after 21 days (court

appeal due within 51 days of appeal) appeal due within 51 days of appeal) Allow & remand to DUA (Ex. M)Allow & remand to DUA (Ex. M) Allow & Board reviews record (Ex. M-1)Allow & Board reviews record (Ex. M-1) Allow & Board holds hearing (very rare)Allow & Board holds hearing (very rare)

(G.L. c. 151A, § 41)(G.L. c. 151A, § 41)

Note: Board now posts decisions on web.Note: Board now posts decisions on web.

Board of Review may do the following:Board of Review may do the following:

Sequence of a Sequence of a Claim (8)Claim (8)

Losing partyLosing party has 30 days to appeal Board of Review’s decision to has 30 days to appeal Board of Review’s decision to District CourtDistrict Court Claimant, employer & DUA are all parties (unless single party Claimant, employer & DUA are all parties (unless single party

issue) – must serve complaint within issue) – must serve complaint within 7 days7 days of filing by of filing by certified mail, return receipt requested. certified mail, return receipt requested. G.L. c. 151A, G.L. c. 151A, §§ 42. 42.

District CourtDistrict Court decision can be appealed to decision can be appealed to Appeals CourtAppeals Court and and then to then to Supreme Judicial Court (by cert)Supreme Judicial Court (by cert) Claimants need to continue to certify their eligibility using Claimants need to continue to certify their eligibility using

WebCert or TeleCert during appeal processWebCert or TeleCert during appeal process

Reconsideration/Reconsideration/RedeterminationRedetermination

Remedy if time for appeal expired (& not more than one year Remedy if time for appeal expired (& not more than one year since original determination)since original determination)

Letter to DUA Director requesting reconsideration under G.L. Letter to DUA Director requesting reconsideration under G.L. 151A, 151A, §§ 71 71

Decision fully discretionaryDecision fully discretionary If DUA initiates redetermination, must notify claimant of If DUA initiates redetermination, must notify claimant of

opportunity to present evidence before its decision opportunity to present evidence before its decision and before and before checks are stopped [NEW]checks are stopped [NEW]. . (Ex. F-1; F-4)(Ex. F-1; F-4)G.L. c. 151A, G.L. c. 151A, § 71; § 71; 430 CMR 430 CMR 4.30 et seq; 4.30 et seq; 11.01 et seq.11.01 et seq.

Waiver of OverpaymentWaiver of Overpayment

Eligible for Waiver of Overpayment if:Eligible for Waiver of Overpayment if:

there is no proof of there is no proof of fraudfraud

and and

re-paying the money would:re-paying the money would: EitherEither “defeat the purpose of benefits” “defeat the purpose of benefits” OrOr would be against “equity and good conscience” would be against “equity and good conscience”

G.L.c. 151A sec. 69; 430 CMR 6.00 G.L.c. 151A sec. 69; 430 CMR 6.00 et seq.;et seq.; Ex. F-3: Notice of Ex. F-3: Notice of OverpaymentOverpayment

Is it really fraud?Is it really fraud?

Waiver available only if no finding of fraudWaiver available only if no finding of fraud

Examine whether fraud finding includes finding of fraudulent Examine whether fraud finding includes finding of fraudulent intent -- i.e., did claimant have “state of mind” to intentionallyintent -- i.e., did claimant have “state of mind” to intentionallydefraud DUA: see SRH 1462defraud DUA: see SRH 1462

If no intent, challenge through hearing or redeterminationIf no intent, challenge through hearing or redetermination

LEP issues: see SRH 1463LEP issues: see SRH 1463

Procedures currently being challenged in court by GBLS & MLRI Procedures currently being challenged in court by GBLS & MLRI contact us. contact us.

THE DUA HEARING

Agency:Agency: DUA/Hearings Department DUA/Hearings Department

Hearing Officer: Hearing Officer: Review ExaminerReview Examiner

Parties:Parties: Claimant and Employer (unless single Claimant and Employer (unless single party issue)party issue)

Your prep: ask to observe a hearingYour prep: ask to observe a hearing

Informal Fair Hearing Rules: 801 CMR 1.02

THE DUA HEARING (1)

Who can appeal: Either partyWho can appeal: Either party

Evidence: Formal rules of evidence do Evidence: Formal rules of evidence do not not apply apply

Proceedings: Audio-recordedProceedings: Audio-recorded

Discovery: Discovery: DUA fileDUA file Personnel record (G.L. c. 149, § 52C)Personnel record (G.L. c. 149, § 52C)

Request Request onlyonly if strategic to do so if strategic to do so

THE DUA HEARING (2)

UI Request for Information sent to employerUI Request for Information sent to employer Examine date for timely returnExamine date for timely return

Notice to Claimant of Disqualification Notice to Claimant of Disqualification

Statements from employer and claimant Statements from employer and claimant

Notice of hearingNotice of hearing

Any other documents submitted by parties to claims Any other documents submitted by parties to claims adjudicatoradjudicator

Review docs in DUA’s Hearing File

THE DUA HEARING (3)

Preparation of Claimant

Take the time to thoroughly prepare your clientTake the time to thoroughly prepare your client At least 3 meetings Average time for case prep – 25 hours

Think about employer’s best case and how to meet it Think about employer’s best case and how to meet it and confront bad factsand confront bad facts

Write out direct, cross of employer and potential cross of Write out direct, cross of employer and potential cross of your clientyour client Role play with supervisor/colleagues and then prepare client

Describe hearing “scene” and what to expect at hearingDescribe hearing “scene” and what to expect at hearing

THE DUA HEARING (4)

Present witnessesPresent witnesses

Cross examinationCross examination

Oral testimonyOral testimony

Documentary evidenceDocumentary evidence

Rights and duties of parties

THE DUA HEARING (5)

Use open-ended questionsUse open-ended questions

Tell a story that fits with theory of case (Tell a story that fits with theory of case (seesee Mauet) Mauet)

Chronology of events backwardsChronology of events backwards

Group your direct into subject areasGroup your direct into subject areas

Do Do notnot dwell on unimportant details dwell on unimportant details

Do Do notnot interrupt your witness interrupt your witness

Do not ask leading questions!

Direct Examination

THE DUA HEARING (6)

Your client or your witnessYour client or your witness After your witness is cross-examined, you can re-directAfter your witness is cross-examined, you can re-direct

Re-direct only if you need to do soRe-direct only if you need to do so

Do Do notnot use it to bring out nit-picking points use it to bring out nit-picking points Use your re-direct to:Use your re-direct to:

Clarify a point, orClarify a point, or

Elaborate on a subject (brought out on cross) that helps your Elaborate on a subject (brought out on cross) that helps your clientclient

Re-Direct Examination

THE DUA HEARING (7)

Did the witness hurt you?Did the witness hurt you?

Do you have real ammunition?Do you have real ammunition?

Do you know how the witness will answer the Do you know how the witness will answer the question?question?

AskAsk leading questions (require yes/no) leading questions (require yes/no)

AvoidAvoid “why” or open-ended questions “why” or open-ended questions

Only if you must!

Cross Examination

THE DUA HEARING (8)

RelevanceRelevance

HearsayHearsay

Introducing a document into evidenceIntroducing a document into evidence

E.g., authenticity of document: dated, signed, letterheadE.g., authenticity of document: dated, signed, letterhead

PrivilegePrivilege

Documents and Objections

THE DUA HEARING (9)

Make it short (Make it short (<< 2 minutes) & to the point 2 minutes) & to the point Connect the dotsConnect the dots Use to highlight the most favorable factsUse to highlight the most favorable facts Do Do notnot recite the entire hearing recite the entire hearing Do Do notnot lecture the Review Examiner on the law lecture the Review Examiner on the law Can submit proposed findings of fact & rulings of lawCan submit proposed findings of fact & rulings of law

If necessary, ask for 24 hours to conform facts to evidenceIf necessary, ask for 24 hours to conform facts to evidence

Closing Argument

THE DUA HEARING (10)

DUA provides interpreters at hearings at DUA provides interpreters at hearings at no costno cost to claimantsto claimants 2-hour hearing

Claimant or claimant’s advocate Claimant or claimant’s advocate

mustmust request interpreterrequest interpreter

Problems with Interpreters? Contact:

Marisa de la Paz, DUA Multilingual Services (617) 626-5471

INTERPRETERS

Based on SeparationBased on Separation

Disqualification: Disqualification: DischargeDischarge

(1) Deliberate misconduct(1) Deliberate misconduct(2) A knowing rule violation (2) A knowing rule violation

Employer has burden of proofEmployer has burden of proof

Exception: Domestic ViolenceException: Domestic Violence No disqualification if discharge is due to No disqualification if discharge is due to

circumstances resulting from domestic circumstances resulting from domestic violenceviolence

Including individual’s need to address the Including individual’s need to address the physical, psychological and legal effects of DVphysical, psychological and legal effects of DV

Discharge: G.L. c. 151A, § 25(e)(2)

Discharge: “Deliberate Discharge: “Deliberate Misconduct” …Misconduct” …

Claimant’s state of mindClaimant’s state of mind Intentional disregard of employer’s interest and Intentional disregard of employer’s interest and

expectationsexpectations Employer must prove BOTH statutory elementsEmployer must prove BOTH statutory elements

Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest

Discharge: “Knowing Discharge: “Knowing Violation” (1)…Violation” (1)…

A knowing violation requires A knowing violation requires intentintent Claimant must have intendedClaimant must have intended to violate the rule to violate the rule

or policyor policy See: See: Still v. Commissioner of Employment and Still v. Commissioner of Employment and

TrainingTraining, 423 Mass. 805, 672 N.E. 2d 105 (1996), 423 Mass. 805, 672 N.E. 2d 105 (1996) Claimant must have been Claimant must have been awareaware of rule or of rule or

policypolicy Consciously aware Consciously aware at the time of the actat the time of the act

of a “reasonable and uniformly enforced” rule or policy

Discharge: “Knowing Discharge: “Knowing Violation” (2)Violation” (2)

Rule or policy must be Rule or policy must be reasonablereasonable

Rule or policy must be Rule or policy must be uniformlyuniformly enforced both with enforced both with respect to other employees and the individual respect to other employees and the individual employee (so employers cannot disqualify a person employee (so employers cannot disqualify a person for violations it had repeatedly tolerated in the past for violations it had repeatedly tolerated in the past without imposing discipline)without imposing discipline)

NOTE: Incompetence does NOTE: Incompetence does notnot constitute a violation constitute a violation

Discharge examples…disqualifying Discharge examples…disqualifying or not?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: LeavingDisqualification: Leaving

(1) Good cause attributable to the employer(1) Good cause attributable to the employer

(2) Urgent, compelling and necessitous reasons(2) Urgent, compelling and necessitous reasons

Claimant has burden of proofClaimant has burden of proof

Exception: domestic violenceException: domestic violence

Voluntary Quit: G.L. c. 151A, § 25(e)(1)

Voluntary Quit: “Good Voluntary Quit: “Good Cause”…Cause”…

attributable to the Employerattributable to the Employer Claimant must have made reasonable efforts to resolve the Claimant must have made reasonable efforts to resolve the

problem unless futileproblem unless futile Exception: Domestic ViolenceException: Domestic Violence Exception: cases involving allegations of sexual harassmentException: cases involving allegations of sexual harassment

(See (See Tri-County Youth Programs, Inc. v. Acting Deputy Director of DETTri-County Youth Programs, Inc. v. Acting Deputy Director of DET, 765 N.E. 2d 810, , 765 N.E. 2d 810,

815-816 (Mass. 2002)); 815-816 (Mass. 2002)); racial, or other unreasonable harassment racial, or other unreasonable harassment (See (See G.L. c. 151A, G.L. c. 151A, §25(e), ¶5; 430 CMR 4.04(5))§25(e), ¶5; 430 CMR 4.04(5))

General job dissatisfaction or unfair criticism are not grounds General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficientresponsibilities or decrease in pay may be sufficient

Consult: Consult: Your Rights on the JobYour Rights on the Job to determine if employment law violations. to determine if employment law violations.

Voluntary Quit: “Urgent, Voluntary Quit: “Urgent, Compelling & Necessitous”Compelling & Necessitous” Non work-connected reason – G.L. c. 151A, Non work-connected reason – G.L. c. 151A,

sec. 25(e), par. 3sec. 25(e), par. 3 Claimant Claimant mustmust have made reasonable efforts to preserve have made reasonable efforts to preserve

job, unless futilejob, unless futile Employer’s Employer’s account not charged account not charged (if insured)(if insured) Benefits paid from UI solvency fund Benefits paid from UI solvency fund

(also pays for dependency allowance, extended training (also pays for dependency allowance, extended training benefits, quit because of domestic violence, and quit for benefits, quit because of domestic violence, and quit for another job – 430 CMR 5.05(4))another job – 430 CMR 5.05(4))

May raise “availability” issuesMay raise “availability” issuesKey to these cases is thorough exploration of client’s Key to these cases is thorough exploration of client’s

circumstances.circumstances.

Special rules for temp agency Special rules for temp agency jobs:jobs:

Must prove that contacted temp agency to see if Must prove that contacted temp agency to see if more jobs available before applying for UI. Note: more jobs available before applying for UI. Note: notice must be provided to claimant in customary notice must be provided to claimant in customary way, notice must include statement that failure to way, notice must include statement that failure to request reassignment will affect rights to UI, & the request reassignment will affect rights to UI, & the job must be suitable.job must be suitable. G.L. c.151A, G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)).

Call GBLS at 617-603-1810 if claimant denied UI after completing a temp job.

Voluntary Quit Example…Voluntary Quit Example…disqualifying or not?disqualifying or not?

Shift change or transferShift change or transfer Unfair reprimandUnfair reprimand HarassmentHarassment Inadequate payInadequate pay Lack of transportationLack of transportation Domestic violenceDomestic violence Temp assignment endsTemp assignment ends