WI Unemployment Insurance: Phone Hearings Advising & Representing Clients in Benefit Appeal Hearings
Attorney Jen Bizzotto Attorney Dena Welden jbizzotto@judicare.org dwelden@judicare.org
4-Part CLE Series Unemployment Benefits Overview: Process, Hearings, and Appeals Tuesday, May 19, 1-2PM Register in advance for this session presented by Jen Bizzotto & Dena Welden Unemployment Appeals: Evaluating Your Client’s Denial and Considering Defenses Thursday, May 21, 9-10AM Register in advance for this session presented by Liz Groeschel & Erica Sweitzer-Beckman Telephonic Hearings: Advocating for Workers with Unemployment Claims Tuesday, May 26, 1-2PM Register in advance for this session presented by Jen Bizzotto & Dena Welden Understanding Unemployment Insurance Benefits During the COVID-19 Pandemic Thursday, May 28, 1-2PM Register in advance for this session presented by Liz Groeschel & Hal Menendez
Presentation Outline 1. Background 2. Review of Claim Lifecycle Initial Claim → Investigation → Initial ○ Determination → Appeal → Hearing → LIRC → Judicial Review 3. Appealing the Initial Determination 4. 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 Outline 1. Background 2. Review of Claim Lifecycle Initial Claim → Investigation → Initial ○ Determination → Appeal → Hearing → LIRC → Judicial Review 3. Appealing the Initial Determination 4. 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: ● Handbook for Employers ● Wis. Stat. § 108 ○ Starting on p. 69 ○ Administrative rules ● Handbook for Claimants ● Wis. Admin. Code DWD Ch. 140 ○ Wis. Admin. Code LIRC Ch. 1-4 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 Outline 1. Background 2. Review of Claim Lifecycle Initial Claim → Investigation → Initial ○ Determination → Appeal → Hearing → LIRC → Judicial Review 3. Appealing the Initial Determination 4. 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 ● Your client’s sole opportunity to decision introduce evidence! 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 ●
Presentation Outline 1. Background 2. Review of Claim Lifecycle Initial Claim → Investigation → Initial ○ Determination → Appeal → Hearing → LIRC → Judicial Review 3. Appealing the Initial Determination 4. 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
3. Appealing the Initial Determination 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 (§ 108.09) Right to a copy of the initial ● determination “ Unless the request for a hearing Any party to a determination has a ● is withdrawn, each of the parties right to appeal Right to be heard (§ 108.09(2)(d)) ● 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 (Ch. DWD § 140) 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.”
Sample Confirmation of Appeal >
Close-Up of Appeal Confirmation
Close-Up of Appeal Confirmation
Presentation Outline 1. Background 2. Review of Claim Lifecycle Initial Claim → Investigation → Initial ○ Determination → Appeal → Hearing → LIRC → Judicial Review 3. Appealing the Initial Determination 4. 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, un availability Also send a copy to employer ○
4. Preparing for a UI Hearing: The Issue 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: 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
4. Preparing for a UI Hearing: The UI File What’s in a UI File? ● “ “[T]he papers, documents and ○ Unless the appeal tribunal departmental records relating to the issue orders otherwise, the sole of the hearing.” DWD § 140.09(1 )(a) means of discovery available Adjudicator’s notes from calls with parties ○ to a party or party’s Written questionnaires submitted by the ○ parties representative before a Any documents submitted to the ○ hearing is inspection of the adjudicator by the parties hearing file and procurement Why’s it so important? ● of copies of file contents. Only discovery available ○ Identifies the specific issue ○ Contains parties’ prior statements ○
4. Preparing for a UI Hearing: The UI File Information from the claimant ●
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.”
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