WI Unemployment Insurance: Phone Hearings

Advising & Representing Clients in Benefit Appeal Hearings

Attorney Jen Bizzotto Attorney Dena Weldendwelden@judicare.orgjbizzotto@judicare.org

4-Part CLE SeriesUnemployment Benefits Overview: Process, Hearings, and AppealsTuesday, May 19, 1-2PMRegister in advance for this sessionpresented by Jen Bizzotto & Dena Welden

Unemployment Appeals: Evaluating Your Client’s Denial and Considering DefensesThursday, May 21, 9-10AMRegister in advance for this sessionpresented by Liz Groeschel & Erica Sweitzer-Beckman Telephonic Hearings: Advocating for Workers with Unemployment ClaimsTuesday, May 26, 1-2PMRegister in advance for this sessionpresented by Jen Bizzotto & Dena Welden Understanding Unemployment Insurance Benefits During the COVID-19 PandemicThursday, May 28, 1-2PMRegister in advance for this sessionpresented by Liz Groeschel & Hal Menendez

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

1. Background: Resources● Statutory authority:

○ Wis. Stat. § 108

● Administrative rules○ Wis. Admin. Code DWD Ch. 140○ Wis. Admin. Code LIRC Ch. 1-4

● Handbook for Employers○ Starting on p. 69

● Handbook for Claimants● Hearing Process Booklet● Hearing FAQs

1. Background● DWD v. Hearing Office

○ Run by BOLA● Hearing Offices

○ Madison○ Milwaukee○ Fox Valley (Appleton)○ Eau Claire

● Contact Info○ Phone: (608) 266-8010○ Fax: (608) 327-6498○ Address: 3319 W.

Beltline Hwy Madison, WI 53713

● Authorization Form and/or Notice of Appearance Required

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Reviewing the UI File○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

2. Review of Claim Lifecycle● Initial Claim: Claimant provides brief description of

reason for separation● Investigation: Both Claimant & Employer provide

unsworn statements to DWD● Initial Determination: Helps identify the specific

issue on appeal● Appeal: Request for a hearing made by the losing

party● Hearing: Case heard before an ALJ, who issues a

decision● LIRC Appeal: Appeal limited to written argument

based solely on the evidence in the record. Factual findings are final

● Judicial Review: Limited bases for appeal

Your client’s sole opportunity to introduce evidence!

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Reviewing the UI File○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

● When in doubt, appeal!○ Can later be withdrawn

● Appeal all determinations● Appeal must be timely

○ Received or postmarked within 14 days of Initial Determination

● How to appeal○ Online, mail, fax

● Procedures for filing an appeal○ Wis. Stat. § 108.09○ Wis. Amin. Code Ch. DWD § 140

● Advise the client to keep filing weekly certifications while they’re waiting for a hearing!

Back side of Initial Determination >

3. Appealing the Initial Determination

● Right to a copy of the initial determination

● Any party to a determination has a right to appeal

● Right to be heard (§ 108.09(2)(d))

Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.

“

3. Appealing the Initial Determination (§ 108.09)

● Right to written notice of an appeal (§§ 140.03, 140.06)○ Hearing Office must mail the Hearing Notice

“not less than 6 calendar days before the hearing.”

● Late appeal (§ 140.04)○ Hearing may be scheduled to determine

whether there was good cause (“for a reason outside the appellant’s control”)

○ If appellant wins, merit hearing will be scheduled

● Timing of hearing (§ 140.06(1))○ “The hearing office shall schedule a hearing at

the earliest feasible time after the appeal is received.”

3. Appealing the Initial Determination (Ch. DWD § 140)

Sample Confirmation of Appeal >

Close-Up of Appeal Confirmation

Close-Up of Appeal Confirmation

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Reviewing the UI File○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

4. Preparing for a UI Hearing: Hearing Notice

4. Preparing for a UI Hearing: Appearance● Parties have the right to an

attorney or agent (§ 108.09(8)(b))● Attorney fee limited to 10% of the

max. amount at issue● Appearance should be filed with

Hearing Office, although attorney can appear at the hearing without prior notice

● Appearance should include:○ Hearing number, case caption,

notice of appearance, contact info, unavailability

○ Also send a copy to employer

● The issue in the Hearing Notice is usually quite vague

● Typically, only the noticed issue is addressed in the hearing, but other issues may be raised absent an objection from the non-moving party

4. Preparing for a UI Hearing: The Issue

4. Preparing for a UI Hearing: Technology● ALJ calls on a conference system, which may

sometimes drop the calls● Hearings are recorded, and

transcripts/audio recordings must be made available on request, for a fee

● On appeal, hearing synopsis will be automatically generated and given to LIRC, available for free on request

● What’s in a UI File?○ “[T]he papers, documents and

departmental records relating to the issue of the hearing.” DWD § 140.09(1)(a)

○ Adjudicator’s notes from calls with parties○ Written questionnaires submitted by the

parties ○ Any documents submitted to the

adjudicator by the parties

● Why’s it so important? ○ Only discovery available○ Identifies the specific issue○ Contains parties’ prior statements

“ Unless the appeal tribunal orders otherwise, the sole means of discovery available to a party or party’s representative before a hearing is inspection of the hearing file and procurement of copies of file contents.

4. Preparing for a UI Hearing: The UI File

● Information from the claimant

4. Preparing for a UI Hearing: The UI File

● Information from the employer

4. Preparing for a UI Hearing: Standard of Review● The standard of review for a UI

hearing is de novo ● Docs in the UI file need to be

formally introduced and marked● Parties’ statements to

adjudicators are unsworn/hearsay, but can be used to impeach

Quick Poll

Do you think the DWD approved or denied this claimant’s initial claim?

4. Preparing for a UI Hearing: Mock Hearing● Benefits of a mock hearing

○ Build trust with your client○ Get a better understanding of their

testifying style○ Practice waiting for the whole question,

giving straightforward answers that answer the question asked

○ Help client focus on the relevant issues○ Identify weaknesses in their narrative

■ “Don’t worry. I’ll do it right in the hearing.”

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Reviewing the UI File○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

1. Intro, appearances, & identification of issues

2. Employer testifiesa. Directb. Cross-examinationc. Redirect

3. Employee testifiesa. Directb. Cross-examinationc. Redirect

5. The Hearing: Overview

5. The Hearing: Claimant Testimony● Job title● First & last

day of work● Rate of pay● Work

schedule (FT/PT)

● Direct supervisor at time of separation

● When/How were you notified that you were being discharged? ○ In writing? In person?

● Who was present for that conversation? ● What did the employer say, specifically? ● How did you respond?● Did you receive prior warnings or

discipline?

● How did you notify the employer that you were quitting? ○ Who did you speak with, and

what did you say?● Did you give the employer an

opportunity to address whatever concerns you were having before you quit?○ E.g., insufficient safety

precautions due to COVID-19

● The burden of proof is on the party resisting the payment of benefits (case law)

● Employer or DWD?○ Employer

■ Misconduct/Substantial Fault○ DWD

■ Whether employee is engaged in covered employment by a subject employer

● Quit or Discharge? Burden-shifting:1. Employee presumed eligible (discharge)2. Employer makes prima facie showing that

the employee quit3. Employee proves that s/he quit for an

allowable reason

5. The Hearing: Burden of Proof

● “Appeal tribunal” = ALJ● A much more expansive role than a

courtroom judge● Develops facts and examine witnesses

(DWD § 140.15(2)) ● A “neutral factfinder”● May adjourn and continue a hearing if

additional time needed or to allow parties to present additional evidence not available that day

● Appeal tribunal can affirm, reverse, modify, remand

5. The Hearing: Role of the ALJ

Madison hearing office

● Overview○ Don’t call cumulative witnesses○ Be prepared to give a statement

summarizing what testimony the witness will provide and why it’s needed

○ ALJ may sequester witnesses

● Subpoenas○ Incredibly rare○ Pro se claimants can request that DWD

serve subpoenas○ Attorneys should follow §§ 805.07(4)

and (5), send a copy to the Hearing Office

5. The Hearing: Witnesses

● Exhibits: ○ Must be sent to Hearing Office

and employer at least 3 calendar days beforehand

○ Must be introduced and marked to become part of the record

● Proposed Exhibits: ○ Each of the docs in the UI File

may be introduced as exhibits○ The ALJ may or may not have

looked through these docs beforehand

5. The Hearing: Exhibits

● Rules of evidence don’t apply (DWD § 140.16(1))○ Any probative evidence is admissible○ But, irrelevant, immaterial, or repetitious

evidence not admissible ● Common objections in UI hearings

○ Hearsay○ Asked and answered○ Mischaracterizes prior

testimony/argumentative○ DWD records which have not been made

available to the parties ● Hearsay (DWD § 140.16(2))

○ Hearsay evidence IS admissible, but “no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.”

● Medical records: UC-474 Medical Report

5. Hearsay Evidence & Objections

● Failure to Appear○ Appellant’s nonappearance

■ If the appellant doesn’t appear, the appeal is dismissed

■ Within 21 days of the hearing, appellant can send a written petition to request a good cause hearing

○ Respondent’s nonappearance■ Hearing will continue, but if the

respondent has the burden of proof the appellant will likely win by default

● Late to Hearing○ ALJ will wait 10 mins for appellant before

dismissing appeal○ After 10 mins, respondent will not be allowed to

participate○ Parties should wait 1 hour for ALJ

5. Failure to Appear & Timeliness

Presentation Outline1. Background2. Review of Claim Lifecycle

○ Initial Claim→Investigation→Initial Determination→Appeal→Hearing→LIRC→ Judicial Review

3. Appealing the Initial Determination4. Preparing for a Hearing

○ Reviewing the UI File○ Sending proposed exhibits○ Postponement requests

5. At the Hearing○ Burdens of Proof○ Role of the Administrative Law Judge (ALJ)○ Witnesses ○ Exhibits○ Hearsay evidence, objections○ Failure to Appear

6. After the Hearing

● ALJs may issue oral decisions in the hearing, but typically do not (DWD § 140.17)

● A written decision must be issued to both parties

● Decision “shall contain ultimate findings of fact and conclusions of law.”

● Decision must be appealed to LIRC within 21 days

6. After the Hearing

6. After the Hearing

Reverse Side of Appeal Tribunal Decision >

6. After the Hearing

Appeal Tribunal Decision >

Q&A

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ContactsJen Bizzotto Dena WeldenStaff Attorney Staff AttorneyWisconsin Judicare Wisconsin Judicarejbizzotto@Judicare.org dwelden@judicare.org

Maggie Niebler-BrownDirector, Volunteer Lawyers ProjectLegal Action of WisconsinMNB@legalaction.org

Jeff BrownState Bar of WisconsinPro Bono Program Directorjbrown@wisbar.org

Unemployment Insurance

CLE Credit

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