WI Unemployment Insurance: Phone Hearings Advising & - - PowerPoint PPT Presentation

WI Unemployment Insurance: Phone Hearings

Advising & Representing Clients in Benefit Appeal Hearings

Attorney Jen Bizzotto Attorney Dena Welden

dwelden@judicare.org jbizzotto@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:

○

• 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 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

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 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

• When in doubt, appeal!

○ Can later be withdrawn

• Appeal all determinations
• Appeal must be timely

○ Received or postmarked within 14 days

• f 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

• pportunity 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

• utside 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 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, 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

• f 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

• rders 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

• f 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 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

1. Intro, appearances, & identification of issues 2. Employer testifies a. Direct b. Cross-examination c. Redirect

• 3. Employee testifies

a. Direct b. Cross-examination c. 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
• pportunity 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 quit

3.

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 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

• 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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Contacts

Jen Bizzotto Dena Welden

Staff Attorney Staff Attorney Wisconsin Judicare Wisconsin Judicare jbizzotto@Judicare.org dwelden@judicare.org

Maggie Niebler-Brown

Director, Volunteer Lawyers Project Legal Action of Wisconsin MNB@legalaction.org

Jeff Brown

State Bar of Wisconsin Pro Bono Program Director jbrown@wisbar.org

Unemployment Insurance CLE Credit Free Legal Answers

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and thank you for attending!