1. MCLE/New England
Unemployment Insurance: Helping Out-of-Work Clients Navigate
The Unemployment System
March 20, 2018
Power point by
Greater Boston Legal Services

2. What Is Unemployment Insurance (UI) ?
Non-means tested cash assistance program established in 1935
Law/policies set generally by federal govt & states determine benefit levels, duration & disqualification
Employers are source of funding for UI benefits, but only taxed on 1st $15,000 (Solvency Fund)
UI is first line of defense in a recession
G.L. c.151A, sec. 74: UI law shall be liberally construed in favor of the worker and the worker’s family
Waivers of UI are invalid, G.L. c. 151A, sec. 35.

3. Resources to Understand Unemployment
State law: G.L. c. 151A; 801 CMR 1.02; DUA 430 CMR
Federal law: 26 USC 3301; 42 USC 501
DUA Unemployment Insurance Policy and Performance (UIPP) Memos and revisions since 2017 to Serv. Rep. Handbook
Mass. Unemployment Advocacy Guide
DUA web site:
Board of Review Decisions:
DOL website: workforcesecurity.doleta.gov/unemploy/
Legal Services Website:
Other good resources: Thomas A. Mauet, Trial Techniques
Robert Schwartz, Your Rights on the Job

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 (now $15,000), the # of employees, the # separated from employment in the past year, and state tax schedule.
Employers are charged in reverse chronological order; only those employers in the prior 8 weeks of a claim are “interested parties” (IP) -- other employers may protest their UI charge but do not affect the claimant’s right to get UI.
Nonprofits and governmental employers can self-insure.

5. The Administration of Unemployment & Job Training Programs (especially relevant for extended UI benefits for training)
Executive Office of Labor & Workforce Dev.
Secretary of Labor
Rosalin Acosta
Department of
Unemployment
Assistance (DUA)
Director Richard Jeffers
(UI & Labor Market Data)
Note: approves application for extended UI training benefits
Career Services (DCS)
(One-Stop Career Centers)
Director Alice Sweeney
Note: approves payment of federal $$ for training programs

6. Eligibility for Unemployment
UI eligibility if:
totally or partially unemployed Guide, Q.9
separated from employment through no fault
earned at least $4,700 and worked approximately 15 weeks in the prior year
capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation) Guide, Q. 8
Base Period (BP) & Benefit Year (BY)

7. How To Apply
File claim or check claim status with MA Dept. of Unemployment Assistance (DUA)
Call or toll-free , 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 Boston UI and all career centers
Since 7/1/13: UI Online, Guide, Q.1
Practice tip: UI application complete only when get to “confirmation page;” if choose mail correspondence, will not get reminders; if choose correspondence, will not get mailed hard copies.

8. Calculating Unemployment Benefits
Usually, about ½ average weekly gross wages
up to maximum set on Oct. 1 (now $ 769/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). If worked 2 Q, problem if fluctuating income.
Total benefits are < of 36% of BPE or 30 x WBA
BPE = Base Period Earnings; HQ = high calendar quarter; WBA = weekly benefit amount
Guide, Q.4, App. C

9. Duration of UI Benefits
State UI may last up to 30 weeks
May be less if work income fluctuated or worked less than a year
UI may be extended
to participate in DUA-approved training (26 wk),
by federal extended benefits during recessions
or both.

10. Must any job be accepted?
No, only “suitable” job. A job is not suitable if:
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
Guide, Q. 8
Special rules apply for Domestic Violence situations

11. To ensure UI benefits continue or to establish earlier date of UI eligibility:
Must certify active job search every week via English-only UI Online or TeleCert (English, Spanish, Portuguese, Cantonese)
Claimant must certify eligibility weekly even if initially denied UI
Document work search: 3 work search contacts per week on 3 different days and keep work search log in case DUA requests copy
Predate may be possible for earlier date - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); New SRH 1622 (A) (good cause reasons) – if more than one week, contact call center
Guide, Q. 1, 6 & 10.

12. Can a claimant work part-time without losing the entire weekly 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)
Review CD regs 430 CMR 4.76 that eliminate or reduce application of CD:
Guide, Q. 45, 49
WBR = weekly benefit rate (excludes dependency allowance)

13. Can a claimant participate in training while receiving UI?
Yes, must be first approved by DUA – must use an
application provided by DUA, call
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: must apply for training w/in 20 weeks of a new or continued approved claim (unless tolled) (see Guide, Q. 54); if UI denial reversed, 20 weeks starts running 1 week after the reversal
Guide, Q. 48, 54 & DUA website.
Note: New sec. 30 regulations are pending in DUA.

14. Is UI Taxable? Yes. If want taxes withheld, must make a request.
DUA sends out 1099-G, available at call 617/ , or request through UI Online (“Payment History”)
If don’t withhold, responsible for taxes owed at tax time.

15. Limited English Proficient Claimants
Luciano settlement created changes for LEP claimants
Claimant must have his/her language coded – DUA at
Adjudicator’s Questionnaires give “how to contact DUA” info in Spanish, Chinese, Haitian Creole, French, Italian, Portuguese, Vietnamese, Laotian, Khmer, and Russian, G.L. c. 151A, sec. 62A(d)(iii)
See: UI Guide Q. 52, and contact GBLS’s Brian Flynn

16. Non-Citizens Must be work authorized 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; or 2) lawfully present to work; or 3) PRUCOL
Benefit year: must prove work authorization
26 USC 3304(a)(14)(A); G.L. c. 151A, sec. 25(h)
PRUCOL = permanently residing under color of law Guide, Q. 51

17. Verification of Entitlement (SAVE)
Non-Citizens
Systematic Alien
Verification of Entitlement (SAVE)
Must provide A# and document verifying work authorization – same documents as I-9 (identity & 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

18. Sequence of a Claim

19. 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 or if response does not provide supporting facts - not a party unless “good cause” 430 CMR 5.02 (8)
Alert: watch out for responses by employer “agents” e.g., TALX, USC.

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

21. Sequence of a Claim (3) Claimant’s Statement
if possible, assist claimant before presenting her claim to claims adjuster (in person, phone or UI Online)
claimants may receive multiple questionnaires
help with chronology, relevant facts, state of mind, and supporting documents

22. Sequence of a Claim (4) Employer’s Statement
Employers often outsource UI functions to companies who may have no first-hand knowledge of what occurred at workplace
UI Online favors employer agents who know right “buzzwords” and as repeat users can more easily navigate it
Employer must swear to truth of statement under pains and penalties of perjury CMR 5.02 (8).

23. 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 Limited English Proficient (LEP) or longer if LEP and not informed in primary language. 430 CMR 4.14.
Although appeals can be requested through UI Online, not all claimant records are on line: be sure and check hard copy file compiled by Hearings Department
Guide Q. 52, 56

24. Sequence of a Claim (6)
DUA sends hearing notice –watch out for hearing postponement deadline (1 week prior to hearing unless serious emergency) – postponements are increasingly more difficult to get
DUA holds administrative hearing
DUA issues a hearing decision (note: often only client gets decision – so be sure to check)
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.

25. Sequence of a Claim (7) Board of Review may do the following:
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 may hold its own hearing
(G.L. c. 151A, § 41)
Note: Board now posts important decisions on web; posted and other Board decisions are referenced in Guide.
Guide, Q. 64

26. 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 for duration of their benefit year
Guide, Q. 65

27. Reconsideration/Redetermination
Remedy if time for appeal expired & not more than 1 year since the most recent decision
Letter to DUA Director requesting reconsideration under G.L. 151A, § 71
Decision fully discretionary
If DUA initiates redetermination (1 year from original or 4 years if fraud), 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 – 4.35; –

28. 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”
Under recent settlement (Castillo), EAEDC and SSI recipients get presumption that they are eligible for waiver
G.L.c. 151A, sec. 69; 430 CMR 6.00 et seq., Guide, Q. 63
Note: Contact GBLS’s Brian Flynn

29. 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
A finding of “fault” or “fraud” requires evidence that the claimant intentionally provided false information or intentionally withheld information for the purpose of receiving benefits to which she was not entitled. See 430 CMR 6.03 (defining “fault”).

30. The DUA Hearing

31. The DUA Hearing (1) Agency: DUA/Hearings Department
Informal Fair Hearing Rules: 801 CMR 1.02
Agency: DUA/Hearings Department
Hearing Officer: Review Examiner
Parties: Claimant and Employer (unless single party issue) Guide, Q. 57
Tip: Ask Hearing Dept. for opportunity to observe a hearing.

32. The DUA Hearing (2) 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 only if strategic to do so

33. The DUA Hearing (3) Review docs in DUA’s Hearing File
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 adjuster or otherwise submitted through UI Online

34. 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
Prepare 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
Guide, Q. 60, App. H: Checklist

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

36. The DUA Hearing (6) Direct Examination Do not ask leading questions!
Use open-ended questions
Tell a story that fits with theory of case (see Mauet)
Chronology of relevant events if critical to your case (in any event, prepare a chronology with your client)
Do not dwell on unimportant details
Do not interrupt your witness

37. The DUA Hearing (7) Direct Examination
Prepare you client for hidden traps
Is client able to work?
Is client available for work?
Is client actively seeking work?
Is client keeping track of work search?

38. The DUA Hearing (8) Re-Direct Examination 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

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

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

41. The DUA Hearing (11) Closing Argument
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
Guide, App. K - * Tip: If necessary, ask for 24 hours to conform facts to evidence

42. Interpreters
DUA provides interpreters at hearings at no cost to claimants
* 2 hour hearing or even 3 hours if rescheduled
and more than 1 witness
Claimant or claimant’s advocate must
request interpreter
Problems with Interpreters? Contact:
Marisa de la Paz, DUA Multilingual Services, (617)

43. DISQUALIFICATION
Based on Separation

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

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

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

47. 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
Guide, Q

48. Discharge examples…disqualifying 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

49. Disqualification: Leaving
Voluntary Quit: G.L. c. 151A, § 25(e)(1)
(1) Good cause attributable to the employer
(2) Urgent, compelling and necessitous reasons
Claimant has burden of proof
Exception: domestic violence Guide, Q. 33
Guide, Q

50. Voluntary Quit: “Good Cause”… attributable to the Employer
Claimant must have made reasonable efforts to resolve the problem unless futile
Exceptions: Domestic violence & cases involving allegations of sexual harassment; racial, or other unreasonable harassment
General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficient
Consult: Your Rights on the Job to determine if employment law violations.

51. Voluntary Quit: “Urgent, Compelling & Necessitous”
Non work-connected reason – G.L.c.151A, sec. 25(e)(3):
Claimant must have made reasonable efforts to preserve job, unless futile (therefore, consider state of mind)
Employer’s account not charged (if insured)
Benefits paid from UI solvency fund
May raise “availability” issues
Key -- exploration of client’s circumstances.

52. Special rules for temp agency jobs:
* Claimant must prove that contacted temp agency to see if more jobs available before applying for UI
* Written notice must be provided to claimant in customary way and include statement that failure to request reassignment will affect rights to UI, & the job must be suitable.
G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)); and many good Board of Review decisions. Guide, Q. 38

53. Voluntary Quit Example…disqualifying or not?
Shift change or transfer
Unfair reprimand
Harassment
Inadequate pay
Lack of transportation
Domestic violence
Temp assignment ends

54. Need help?
See the Legal Resource Finder, And Questions? Contact Brian Flynn at GBLS, Thank you for participating! Next up: The Not Ready for Prime Time Players in a (Mock) UI Hearing