Unemployment Insurance

Report
Massachusetts Continuing Legal Education
September 25, 2013
Representing Unemployed Workers
at
Unemployment Insurance Hearings
What Is Unemployment Insurance?
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Non-means tested cash assistance program established in 1935
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Law and policies set generally by federal government
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States determine benefit levels, duration & disqualification
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Employers are source of funding for UI benefits, but only taxed
on 1st $14,000 (Solvency Fund)
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UI is first line of defense in a recession
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G.L.c.151A, sec. 74: unemployment law shall be liberally
construed in favor of the worker and the worker’s family
2
Resources to Understand Unemployment
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State law: G.L. c. 151A
DUA regs: 430 CMR; 801 CMR sec. 1.02
DUA policies: Service Representatives Handbook
Mass. Unemployment Advocacy Guide (2013-2014)
DUA web site: www.mass.gov/lwd/unemployment-insur/
Board of Review Decisions: http://dwd-webapp01.detma.org/bor_decisions
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DOL website: workforcesecurity.doleta.gov/unemploy/
Legal Services Website: www.masslegalservices.org
Other good resources:
Thomas A. Mauet, Trial Techniques
Robert Schwartz, Your Rights on the Job, 5th Ed.
3
Funding Unemployment Insurance

A tax is levied on every employer covered by the law.
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The tax rate is based on the taxable wage base, the # of
employees, the # separated from employment in the past year,
and tax schedule.

Nonprofits and governmental employers can self-insure.
4
The Administration of Unemployment
& Job Training Programs
Executive Office of Labor &
Workforce Dev.
Secretary of Labor Joanne
Goldstein
Department of
Unemployment
Assistance (DUA)
Director Michelle
Amante
(UI & Labor Market Data)
Department of
Career Services (DCS)
Director Alice Sweeney
(One-Stop Career Centers)
5
Eligibility for Unemployment

UI eligibility if:
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totally or partially unemployed
separated from employment through no fault
earned at least $3,500 and worked approximately
15 weeks in the prior year (20 weeks for federal UI)
capable of, available for and actively seeking work
(including part time work w/ or w/o reasonable
accommodation)
Base Period (BP) & Benefit Year (BY)
6
How To Apply

File claim or check claim status with MA Dept. of
Unemployment Assistance (DUA)
 Call 617-626-6800 or toll-free 1-877-626-6800, 8:30-4:30
 Call w/SS# 0,1- Monday; 2,3 - Tuesday; 4,5,6Wednesday; 7,8,9 - Thursday; any # - Friday
 Walk in help at UI and career centers
 Since 7/1/13: UI Online (English only)– see Guide, Q.1
Practice tips: UI application complete only when get to
“confirmation page;” if clients on UI Online choose mail
correspondence, will not get email reminders.
7
Calculating Unemployment Benefits
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Usually, about ½ average weekly gross wages
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up to maximum set on Oct. 1 (now $674/week)
+ allowance of $25 per dependent child
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Dependency allowance capped at 50% of UI check
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Benefit usually based on 2 HQ earnings (div. by weeks, div. by 2
= WBA)
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Total benefits are < of 36% of BPE or 30 x WBA
BPE = Base Period Earnings; HQ = high calendar quarter; WBA = weekly benefit amount
8
Duration of UI Benefits

State UI may last up to 30 weeks (during federal benefits 26 weeks)
 May be less if work income fluctuated or worked less
than a year
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UI may be extended
 to participate in DUA-approved training,
 by federal extended benefits,
 or both.
9
Federal Extended UI
Emergency Unemployment Compensation (EUC08) 7/6/08 – 12/28/13
Eligibility:
* currently unemployed
* worked 20 weeks during BP:
(3 tests - 1 ½ x WBA; 40 x WBA; [NEW]: 20 weeks FT work)
* EUC08 “Tier I” – exhausted state benefits before 12/21/13 - can
get 14 weeks and another 14 weeks under “Tier II”
* last payable week ends 12/28/13.
Amount: Sequestration cut of 12.8% is reduced to 7.2% on 9/29/13.
Duration: was up to 99 weeks total, now - 26 weeks (state) & 28 weeks
(federal) = 54 weeks; after federal benefits end on 12/28/13,
state UI maximum returns to 30 weeks.
10
Must any job be accepted?
No, only “suitable” job. A job is not suitable if:
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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
Special rules apply for Domestic Violence situations
11
To ensure UI benefits continue or to
establish eligibility if initially denied:

Every week must use English-only UI Online or TeleCert (English,
Spanish, Portuguese) to certify active work search.
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Claimant must keep certifying eligibility even if initially denied UI
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Predate may be possible - see G.L. c.151A § 62A (g) (employer’s
failure to provide notice); SRH 1622 (good cause reasons) – if more
than one week, contact call center 617-626-6800

Work search must be documented: 3 work search contacts per week,
and keep work search log in case DUA requests copy
See Guide, Q1 and Q6.
12
To ensure continued federal benefits:
Claimants have more stringent work search requirements including:

Keeping a log of all work search activity
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Mandatory meetings at local career centers
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Alleged failure without good cause (see SRH 1614) may result in
suspension or termination of UI!
Contact GBLS or local legal services office for help.
13
Can a claimant work part-time without
losing the whole UI benefit?
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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.
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Must report earnings
 DUA does a cross match with DOR
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NOTE:
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If quit part-time job for disqualifying reason after leaving primary job, deductions
will continue to be made – “constructive deduction” (CD)
[NEW]: CD regs 430 CMR 4.76 (8/16/13) eliminate or reduce application of CD:
* if had no knowledge that would lose primary job
* if part-time work was for fixed period, CD limited to that period
* no CD if returns to part time job or finds new part time job.
WBR = weekly benefit rate (excludes dependency allowance)
14
Can a claimant participate in training while receiving UI?
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Yes, must be first approved by DUA
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Training program: 2 years or 3 years for ESOL/Basic combined
with vocational training; stand-alone ESOL is approved
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Job search waived while in training
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Can get up to 26 weeks of extended UI during training
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Extended UI for training: after 12/28/13 must apply for training
w/in 15 weeks of a new or continued claim (unless tolled)

Note: 15 week req. tolled during federal extension, i.e., until
Dec. 28, 2013 and can apply even if no longer getting UI
benefits if applied anytime since July 6, 2008!
See Guide, Q. 54 and DUA website.
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Health Insurance
for the Unemployed (1)
Must be 400% or less of FPL, MA resident, eligible for MA
UI from a MA employer
Two Types of Coverage:
(A) Premium Assistance Plan: Partial reimbursement for premiums
(up to 80%: currently up to $1,350 for family plan
and $550 for individual coverage)
(B) Direct Coverage Plan: Available if no prior coverage, can’t afford
premiums, expenses exceed 7% of income, COBRA option
expired
The sooner the claimant applies the better.
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Health Insurance (2)
After December 31, 2013
Due to ACA implementation, MSP (including premium assistance) will
end:

Open enrollment through Health Connector

Enrollment begins October 1, 2013 and must be completed by
December 23, 2013 to avoid gap in coverage
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Enrollment is through Health Connector – 1-877-MA-ENROLL (1877-623-6765 or www.MAhealthconnector.org)
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Is UI Taxable?
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Yes. If want taxes withheld, must make a request.
DUA sends out 1099-G, available at
www.mass.gov/dua/webcert, call 617/626-5647, or
request through UI Online (“Payment History”)
If choose to withhold taxes from UI:
 10% of weekly benefit will be withheld for federal
taxes
 5.3% for state taxes
If don’t withhold, responsible for taxes owed at tax
time.
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Must be authorized to work 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; 2) lawfully
present to work; 3) PRUCOL
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Benefit year: must prove work authorization
PRUCOL = permanently residing under color of law – See Guide, Q. 51
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Systematic Alien
Verification of Entitlement (SAVE)
Must provide A# and document verifying 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
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21
Sequence of a Claim (1)
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Claimant files claim with DUA on-line or telephone
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DUA notifies employer of claim
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Employer has 10 days to respond
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If the employer checks “laid off,” benefits start shortly after
a one-week waiting period.
If employer does not timely respond - not a party unless
“good cause”
Alert: watch out for responses by employer “agents” e.g.,
TALX, USC.
22
Sequence of a Claim (2)
If not a layoff, DUA conducts an investigation
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DUA requests info from employer and claimant
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DUA makes benefit determination
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DUA issues a Notice to Claimant of Disqualification or
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DUA provides UI benefits (debit card is default; must choose direct
deposit – no more paper checks)
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Sequence of a Claim (3)
Claimant’s Statement
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assist claimant before presenting her claim to claims adjuster (by
phone or UI Online
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use the fact-finding questions in SRH
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help with chronology, relevant facts, state of mind, and
supporting documents
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Sequence of a Claim (4)
Employer’s Statement
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Employers often outsource UI functions to companies who may
have no first-hand knowledge
UI Online favors employer agents who know right “buzzwords” and
as repeat users can more easily navigate it
Consider contacting DUA Determinations Dept. for reversal if
information is erroneous
Employer must swear to truth of statement under pains and
penalties of perjury. 430 CMR 5.02 (8).
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Sequence of a Claim (5)
Appeals
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If UI denied claimant has 10 days to request hearing (30 days if
good cause)
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If UI granted employer has 10 days to appeal (30 days if good
cause)
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Note: 60 days if claimant is LEP and no limit if LEP and not
informed in primary language. 430 CMR 4.14.
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Appeals can be requested through UI Online
LEP = Limited English Proficient
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Sequence of a Claim (6)
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DUA sends hearing notice – even if posted on UI Online, must also
be mailed (watch out for hearing postponement deadline)
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DUA holds administrative hearing
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DUA issues a hearing decision (should issue no more than 45 days
of hearing request)
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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.
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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 holds hearing (very rare)
(G.L. c. 151A, § 41)
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Note: Board now posts important decisions on web.
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Sequence of a Claim (8)
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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.
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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
29
Reconsideration/Redetermination
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Remedy if time for appeal expired (& not more than one year since
the most recent decision)
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Letter to DUA Director Michelle Amante requesting
reconsideration under G.L. 151A, § 71
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Decision fully discretionary
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If DUA initiates redetermination, 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 et seq; 11.01 et seq.
30
Waiver of Overpayment
Eligible for Waiver of Overpayment if:
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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”
G.L.c. 151A, sec. 69; 430 CMR 6.00 et seq.
Note: UI Online has caused erroneous overpayments or overpayments established
many years or decades ago. Contact [email protected]
31
Is it really fraud?
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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
Regulations regarding “capacity” and “good faith” pending before
DUA as part of Brugman litigation brought by Brian Flynn, GBLS &
Margaret Monsell, MLRI.
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Informal Fair Hearing Rules: 801 CMR 1.02
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Agency: DUA/Hearings Department
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Hearing Officer: Review Examiner
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Parties: Claimant and Employer (unless
single party issue)
Your prep: ask to observe a hearing or view mock
hearing (available on You-Tube)
34
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Who can appeal: either party
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Evidence: formal rules of evidence do not apply
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Proceedings: electronically or tape-recorded
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Discovery:
 DUA file
 Personnel Record (G.L. c. 149, §52C)
Request only if strategic to do so
35
Review docs in DUA’s Hearing File
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UI Request for Information sent to employer
* examine date for timely return
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Notice to Claimant of Disqualification
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Statements from employer and claimant
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Notice of hearing
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Any other documents submitted by parties to claims adjudicator
or otherwise submitted through UI Online
36
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
 Write out 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
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Rights and duties of parties
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Present witnesses
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Cross examination
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Oral testimony
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Documentary evidence
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Direct Examination
Do not ask leading questions!
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Use open-ended questions
Tell a story that fits with theory of case (see Mauet)
Chronology of events backwards
Group your direct into subject areas
Do not dwell on unimportant details
Do not interrupt your witness
39
Direct Examination
Prepare you client for hidden traps
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Is client able to work?
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Is client available for work?
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Is client actively seeking work?
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Is the job suitable?
40
Re-Direct Examination
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Your client or your witness
After your witness is cross-examined, you can redirect (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
41
Cross Examination
Only if you must!
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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
42
Documents and Objections
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Relevance
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Hearsay
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Introducing a document into evidence
* e.g., authenticity of document: dated, signed,
letterhead
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Privilege
43
Closing Argument
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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
* If necessary, ask for 24 hours to conform facts to
evidence
44
DUA provides interpreters at hearings at no cost
to claimants
* 2 hour hearing
 Claimant or claimant’s advocate must
request interpreter
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Problems with Interpreters? Contact:
Marisa de la Paz, DUA Multilingual Services, (617) 626-5471
45
Based on Separation
46
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
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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
47
Discharge: “Deliberate Misconduct” …
Claimant must have engaged in
“deliberate misconduct” in “willful disregard” of
the employer’s interest
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Claimant’s state of mind
Intentional disregard of employer’s interest and
expectations
Employer must prove BOTH statutory elements
48
Discharge: “Knowing Violation” (1)…
of a “reasonable and uniformly enforced” rule
or policy
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A knowing violation requires intent
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Claimant must have intended to violate the rule
or policy
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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
49
Discharge: “Knowing Violation” (2)

Rule or policy must be reasonable
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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
50
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
51
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
52
Voluntary Quit: “Good Cause”…
attributable to the Employer

Claimant must have made reasonable efforts to resolve
the problem unless futile
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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.
53
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
 (also pays for dependency allowance, extended training
benefits, quit because of domestic violence, and quit for
another job)
 May raise “availability” issues
Key to these cases is thorough exploration of client’s
circumstances.
54
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 (See Guide, Q. 38).
Contact GBLS if claimant denied UI after completing a temp
job.
55
Voluntary Quit Example…disqualifying or not?
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Shift change or transfer
Unfair reprimand
Harassment
Inadequate pay
Lack of transportation
Domestic violence
Temp assignment ends
56
Contacts for Further Assistance

Employment Rights Coalition (ERC) Margaret Monsell,
[email protected]

Greater Boston Legal Services (GBLS) (federal benefits, limited
English proficiency, noncitizens, temporary employees, UI Online,
work search requirements), 617-603-1810

Claimant UI Fraud Allegations: Brian Flynn, [email protected];
Margaret Monsell, [email protected]
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UI Online: Cheryl Scott, Director of MA Workforce Investment
Board, [email protected]
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