Hearing Officer Handbook
THE HEARING
- In greeting parties, party representatives and the Hearing Officer should
be affable but, at the same time, careful to preserve the dignity of the
Tribunal. The Hearing Officer should be courteous and helpful to all concerned
but should not discuss details of the case prior to the hearing or unduly
delay the commencement of the hearing. Although the Hearing Officer may
be acquainted with parties or party representatives as the result of their
participation in hearings in other cases, the Hearing Officer should avoid
any undue demonstration of familiarity which might give any other hearing
participants the impression that the Hearing Officer may be biased in his/her
conduct of the hearing or the decision in the appeal.
Although the hearing procedure is informal, the Hearing Officer is in an
authority position and should maintain control of the hearing at all times.
The Hearing Officer should refrain from making statements such as, "I am
required to..." Statements of this nature give the impression the Hearing
Officer has no real authority and tend to undermine the control of the hearing.
See Subchapter 214 of this Handbook for the
proper procedures to address party challenges to interest and circumstances
in which a Hearing Officer has disqualified himself/herself from hearing
and deciding an appeal due to such interest.
- The Hearing Officer should first ask each party if there are other participants
who will be appearing since they might need to be added to the conference.
The names of all persons present at the hearing and the capacity in which
they appear should be written on the inside cover of the claimant's folder.
The parties' titles or positions (e.g., attorney, witness, supervisor, plant
superintendent) should be listed on the folder for use on the coversheet
of the decision. This would include any individuals appearing only as observers.
The designation "observer" should be placed in parenthesis following
the individual's name. Such listing serves as a ready reference for the
names of the parties present and for the correct spelling of names.
If the parties have several witnesses, the Hearing Officer should determine
who will act as the primary representative for the purpose of questioning
witnesses, among other things. See Section 800.6
of this Handbook.
- If a party is represented by an attorney, accountant, union representative,
etc., the name and address of the representative should be written on the
hearing notice and the inside front of the folder. A copy of the decision
will be mailed to the representative per the Hearing Officer's instructions
on mail distribution.
- If a tape recorder is being used, the Hearing Officer should turn on the
tape recorder when beginning to place the conference call to connect the
parties to the hearing. This will insure that all party discussions are
on record. The Hearing Officer should not permit discussions concerning
the issues while the tape recorder is off. Both parties should be connected
before engaging in conversations about witnesses, primary representatives
and other matters.
- If an appeal involves the same parties and issues as a prior appeal but
regarding a different benefit year (as in an additional claim appeal and
subsequent initial claim appeal, both dealing with the same separation),
the Hearing Officer should anticipate conducting a de novo hearing
and issuing a new decision on the second appeal. Only if all parties stipulate
in writing or on the record that they will allow the testimony and other
evidence from the previous hearing to constitute the record for the second
appeal will a second hearing not be necessary.
- All identifying information necessary for the record should be recorded
first. This includes the following type of information.
- The number of the appeal.
- Name, address, and social security number of the claimant (or claimants).
- Name and address and Texas Workforce Commission account number of employer
(if any).
- Names and capacity in which they appear of all other persons appearing
for the hearing. Even if the hearing is in-person, the Hearing Officer
should ask if there will be any witnesses participating by telephone.
- Date, time, and place of the hearing.
- The name of the Hearing Officer conducting the hearing.
All participants should be asked to state and spell their full names and
birth dates on the record. All necessary addresses of the parties should
be verified on the record. The Hearing Officer must explain the importance
of having correct mailing addresses as required by commission Rule 32(c)(8),
which includes the admonition that subsequent appeal deadlines run from
the date of mailing, not the date of receipt by the party. The Hearing Officer
should inform employers that are not parties of interest that they will
not have appeal rights but that the employer can be mailed a courtesy copy
of the decision if the employer wishes. Each party should give their correct
mailing address, and then the Hearing Officer should repeat that address
for the record and have the party verify that the Hearing Officer has read
the correct address. If either side is represented by another person or
company, the Hearing Officer should verify both the representative's address
and any address of that particular party.
Issues and procedures to be followed in the hearing should be explained
to the parties after the preliminary identifying information is recorded.
The following is an example of identifying and procedural information given
to the parties:
"Mr./Ms. [state claimant's name]? Will you have any witnesses or observers
today [Get the names and applicable information]? Mr./Ms. [state employer's
name]? Will you have any witnesses or observers today? What are their names
and job titles [Get the names and applicable information]?
"This is a hearing in Appeal No. 812345-1, being conducted on April
12, 2006, at 1:03 p.m., via a conference call initiating from the Texas
Workforce Commission State Office in Austin, Texas. I am Hearing Officer
Smith, and I'll be conducting the hearing today. The hearing is being recorded.
"The claimant in this hearing is [state claimant's name] and his social
security number is [state claimant's SSN]. Do I have the SSN correct, Mr./Ms.
[state claimant's name]? The employer is [state employer's name], account
number [state the employer's account number]. Do I have the correct account
number, Mr./Ms. [state employer's name]?
(If either or both parties have more than one person present on
their behalf) "Since there is more than one person appearing
on behalf of the [claimant, employer, or both parties] you need to designate
a primary representative. The primary representative is the person who gets
to question all witnesses on behalf of that party, examines any documents,
and may also be a witness. Mr./Ms. [state claimant's name], who will act
as your side's primary representative? Who will act as the employer's primary
representative?
"Following today's hearing, I will be issuing a written decision that
will be mailed to you.
(If the employer is a party of interest) "Both sides
will have appeal rights to that decision. Any appeal must be filed within
fourteen days from the date the decision is mailed to you and not from the
date you receive it so it is important that I have your correct mailing
addresses. (Have each party state the address, repeat it, and ask for verification
that you repeated it correctly.)
(If the employer is not a party of interest) "The
claimant will have the right to appeal the decision if the claimant disagrees
with it. Any appeal must be filed within fourteen days from the date the
decision is mailed to you and not from the date so it is important that
I have your correct mailing address. [Have the claimant state his/her address,
repeat it, and ask for verification that you repeated it correctly.]
NOTE: Be sure and verify the address of any representative as well. Commission
Rule 32(c)(4) requires proper mailing to a party representative to bind
parties to timeliness rules.
The employer is not a party of interest in this case because [state reason
employer is NPI]. However, the employer will receive a courtesy copy of
the decision with no appeal rights. To the employer, state: Mr./Ms. [state
the name of the employer's primary representative], please give me the employer
mailing address so we can mail you a courtesy copy of the decision. [Have
the employer state the address, repeat it, and ask for verification that
you repeated it correctly.]
"This hearing came about as the result of an appeal filed by the [claimant
or employer] on [state appeal date] to a determination dated [state determination
date]. That determination [describe the determination on appeal including
the beginning and ending dates of any disqualification or ineligibility,
the Section of law involved, and any chargeback ruling.] The first issue
we will be discussing at the hearing will be [if a separation case, state
"whether the claimant was separated from his last work as a result
of a discharge for work-connected misconduct or a voluntary quit without
work-connected good cause"]. The second issue we will be addressing
is [if chargeback is at issue, state "whether any benefits will be
charged back to the employer's account as a result of this claim"].
[If the case involves some other issue it should be described as outlined
on the notice. Also, if applicable, the Hearing Officer should explain any
laws involved in the case that were not explained in the hearing packet.]
"I will be asking you questions to bring out the facts in this case.
You have the right to present testimony, documents, and witnesses. You have
the right to question your own witnesses and any witnesses for the other
side.
Each witness will be asked to state their full name and date of birth for
identification. Each party has the right to request I impose the rule. That
means the other witnesses would be excluded from the hearing except for
when they are testifying. All participants are instructed not to prompt
the testimony of anyone and not to refer to any documents that haven't been
previously been disclosed.
(If the issue to be covered is separation)
"Usually testimony is taken first from the party who initiated the
separation.
"All testimony must be taken under oath. Therefore, at this time,
I would like to place each of you under oath. Please respond when I call
your names. Do you solemnly swear or affirm that the testimony you are about
to give in this case will be the truth, the whole truth, and nothing but
the truth under penalty of perjury [state each witness' name and wait for
a response]?
"Mr./Ms. [state claimant's name or primary representative's name]
do you have any questions about the hearing procedure or any of the other
information I have mentioned? Mr./Ms. [state employer's primary representative's
name] do you have any questions about the hearing procedure or any of the
other information I have mentioned?
(The following is used only if the hearing is being recorded on
tape; not necessary for web based recordings)
"At this time, I'm going to go off the record for a brief moment to
check the quality of the recording. Please do not have any discussions while
I am off the record. [Check the tape quality.] We are back on the record.
I have checked the quality of the recording and found it to be adequate.
There was no discussion while we were off the record. Is that true, [state
claimant's name]? Is that true, [state employer's name]?
"Before we get to the testimony portion of the hearing, I would like
to have each of you state your full name, spell it, and give your date of
birth for the record.
[Take administrative notice that the notice of hearing and information
packet were sent to both parties. Ask if each party received the notice
of hearing and the packet of materials that came with the notice. Verify
that both parties received them. The Hearing Officer should enter a Clear2There
bookmark at this point to mark the Gutierrez required verification.]
- The Hearing Officer shall ask all persons giving testimony to identify
themselves by name and date of birth. This is to afford the parties the
opportunity to challenge the identity of a witness.
- Explanations of the most frequently used sections of the TUCA are sent
to the parties with the hearing notice and packet. It is not necessary to
explain these sections in the opening statement unless a party has questions
about them. Any sections of law not covered in the informational insert
which are potentially involved in the issues in the hearing should be explained
by the Hearing Officer in their opening statement. In addition, if a new
issue arises during the hearing that involves a section of law not covered
in the insert, the Hearing Officer should explain such section of law to
the parties.
- It should also be pointed out that appeal hearings are administrative
in nature and that they do not follow regular courtroom procedure. On the
other hand, while the hearings are informal in nature, control of the hearing
must be maintained by the Hearing Officer in the interest of an orderly
proceeding. Each party should be given ample opportunity to fully present
evidence relevant to their case.
- The Hearing Officer should be sure that the parties understand the purpose
of the hearing and the procedures to be followed before proceeding with
the hearing. Both parties should be allowed to ask questions about issues
or procedure of the Hearing Officer prior to beginning testimony.
- As to the contents of a proper opening or introductory statement, see
Section 800.1 and Section 800.2
of this Handbook.
- If a party wishes to present a witness to testify in one of our hearings,
they should have made prior arrangements with the individual to have them
available at the time of the hearing. In the case of a telephone hearing,
if the party failed to make such advance arrangements, the Hearing Officer
should nonetheless make a reasonable effort to contact the offered witness.
More than one effort should be made to contact the individual. If the witness
is unable to participate when called, due to the lack of advance arrangements,
the Hearing Officer should normally proceed with the hearing, without the
witness. The Hearing Officer should limit that witness is "not needed."
The Hearing Officer should limit testimony to relevant matters, but should
not refuse to call a witness. If a witness is unavailable, the Hearing Officer
may proceed without that witness as long as the Hearing Officer has made
a reasonable effort to contact the witness.
- The Hearing Officer shall inform the parties of their right to invoke
the rule during the procedural explanation of the case in the introductory
remarks.
- The Hearing Officer shall instruct each party and witness not to prompt
testimony and not to refer to previously undisclosed documents.
After recording the identifying information in the record and making a
complete opening statement but before any testimony, the oath should be
administered to the individuals who are to testify. Attorneys, union representatives,
observers, and any other parties present who are not giving actual testimony
do not need to take the oath or give their birthdates.
- The oath should be administered to all individuals who will be testifying
after the completion of the identifying information and the explanations
of the issues and procedures. If a party or witness objects to taking an
"oath" or to being sworn, they may "affirm" that they
will tell the truth. The form of the oath should require the witnesses to
swear or affirm that they will tell the truth, the whole truth and nothing
but the truth under penalty of perjury.
In the event that the Hearing Officer neglects to administer the oath prior
to the party or witness' testimony, the oath should be administered as soon
as the Hearing Officer realizes that they failed to administer the oath.
In such cases, the witness would be asked to swear or affirm that the testimony
they have already given was the truth and that any later testimony will
be the truth, etc.
- If the hearing is lengthy and appears likely to continue for an extended
period of time, the Hearing Officer may order brief recesses at reasonable
intervals. Such recesses should be reserved for hearings lasting well over
one hour. The Hearing Officer should not postpone a hearing because it looks
like there is not enough time to finish it, but should proceed and finish
asmuch as possible before continuing.
- Notes taken during a hearing will help the Hearing Officer to remember
all points that should be covered in the decision, but if there is any question
concerning the evidence, the Hearing Officer should review the record of
the hearing to assure that his/her decision is accurate. Note-taking is
left to the discretion of the Hearing Officer. However, at no time should
the Hearing Officer permit note-taking to interfere with the conduct of
an effective hearing. Excessive note-taking may be distracting to the parties
involved and may absorb the Hearing Officer's attention so fully as to prevent
the Hearing Officer from observing the demeanor of witnesses. These guidelines
also apply to notes that might be typed by the Hearing Officer during the
hearing. The Hearing Officer should not leave any personal notes or draft
decisions in the file when it is returned to the state office.
- The Public Information Act, Chapter 552 of the Government Code allows
the public to have access to records and information compiled and maintained
by state agencies if not otherwise considered confidential by law. The Attorney
General has ruled any information which reveals whether an individual is
receiving, has received, or has ever applied for unemployment insurance
benefits is confidential by law. Accordingly, all information pertaining
to a claim for benefits would be considered confidential with regard to
the general public.
Administrative staff manuals and written instructions to staff that affect
the public, for example, the U.I. Manual and Appeals Policy and Precedent
Manual, and general statistical information are available on request.
The claimant and the employing unit have access in general to unemployment
compensation records when the record is used in the making of a determination
concerning that individual or employer. A person seeking to examine information
or files may do so during normal working hours without charge.
If there is any question concerning possible confidentiality of certain
records, the Hearing Officer should refer the question to the Chief of
Appeals for further clarification from the General Counsel's Office.
Commission representatives are subject to monetary fines for the disclosure
of the contents of any record that may be considered confidential. Any
questionable requests for disclosure should be cleared by the State Office
Appeals Department. [See Article 6252-17a, Section 10 & 12, V.A.C.S.]
- In a telephone hearing involving a work separation, the parties must
have received a copy of the original hearing notice packet before the
hearing can proceed. This would be the first packet that contained the
fact finding statements, employer protest, appeal document, and any other
documents obtained during the investigation. This is required to comply
with the Gutierrez settlement. If the Hearing Officer finds out in time
that a party did not receive the hearing packet, the Hearing Officer should
try to mail or fax the packet to the party so the hearing may be held
as scheduled. A party cannot waive receipt of the packet and proceed with
a hearing that involves a work separation.
- The Hearing Officer should always take the best evidence available. If
the firsthand witness is available to testify, the Hearing Officer should
take the sworn testimony, if possible, rather than taking a written statement
in lieu of testimony
- In some cases, it will become apparent that an interpreter will be needed. The official interpreter should be provided by the Commission.
- If the Appeals Department is aware ahead of time, the hearing will be
scheduled with an interpreter provided by the Commission. In cases where
a Spanish interpreter is needed, unless otherwise authorized, agency policy
is to use a Federal Court-certified interpreter. With languages other than
Spanish, the Appeals Department will also make every effort to obtain a
competent interpreter for the language involved. If unaware of the need
for a needed interpreter prior to the hearing, the Hearing Officer should
check with the state office to see if one can be obtained on short notice.
However, if an interpreter is not available, the Hearing Officer must postpone
the hearing until an interpreter can be provided. If a party has requested
an interpreter, the party should not be pressured to continue without one
because an interpreter was not available. If the parties do not need an
interpreter and the interpreter is needed for a witness only, the Hearing
Officer should go ahead and take testimony from the available parties before
continuing to get an interpreter for the witness.
- In some cases, the party who needs the interpreter will bring a relative with them for that purpose. As there is a risk that such an individual would not be sufficiently objective or competent to render quality interpretation, a relative will be used only as a last resort but only with languages other than Spanish. A representative can never be used to act as an interpreter for a party.
- If a party does not bring an interpreter to the hearing, the party should be allowed to consult with the interpreter if he/she so desires. The party's right to do this should be made clear to the party.
- Before administering the interpreter's oath, the Hearing Officer should
introduce the interpreter and explain the function of the interpreter to
all witnesses. For example: "Mr./Ms. ________ will act as an interpreter
in the hearing today. He/she will interpret my questions and the answers
of both parties. If you do not understand any question, please advise me
and I will rephrase the question. Mr./Ms. ________ will then interpret your
answer into English and/or ______ (the other language). Answer each question
slowly. If the answer is long, Mr/Ms. ________ may interrupt you in order
to interpret what you have said, and after he or she has finished the interpretation,
you may continue to answer the question." It should be clear that the
interpreter is neutral and is not to represent either party. The interpreter
should refrain from interacting with the parties in a manner that makes
it appear the interpreter is representing a party.
- The interpreter will be placed under oath. See Subchapter 302 of this Handbook for the interpreter's oath. It is essential to put the interpreter under oath prior to any substantive part of the hearing itself. At this time, the Hearing Officer should verify for the record the interpreter's experience in such hearings. If the interpreter is a Federal Court-certified interpreter, only that information need be given. The customary oath for witnesses will be administered by the Hearing Officer through the interpreter to the witness.
- The responsibility of the interpreter in an appeal hearing is to translate into the language of the witness the question of the Hearing Officer or party, listen attentively to the reply, and translate the reply into English. It is the Hearing Officer's, not the interpreter's, responsibility to judge the credibility of witnesses and to weigh the evidence. Hence, the interpreter should translate the question as it is given to him/her by the Hearing Officer and the answer as it is given by the witness. The interpreter should not give a personal interpretation of either the question or answer. These points should be explained to the interpreter on the record at the time the oath is administered. However, if the interpreter is a Federal Court-certified interpreter, such explanation is unnecessary.
- In questioning a witness testifying through an interpreter, the Hearing Officer should phrase all questions in simple language. A question may require rephrasing one or more times until its meaning is clear.
- Both interpreted and uninterpreted versions should be recorded in the event there are subsequent allegations of inadequate interpretations. The interpreter may use simultaneous interpretation of English to the non-English speaking participant only when English is being spoken. However, when the non-English language is being spoken, the interpretation into English will be done consecutively. Simultaneous interpretation should be used only where special equipment is available to record both speakers.
- To alleviate any problems with who said what, testimony should be taken entirely in the foreign language. The interpreter should refrain from talking at the same time the party is talking.
- The Hearing Officer should stress that questions and responses be as brief as possible to insure that all testimony is translated. The parties should say only one or two sentences at a time before allowing the interpreter an opportunity to translate.
- The information packet containing agency documents is mailed to the assigned interpreter prior to the hearing.
- There may some cases where Commission records indicate the non-appellant
needs an interpreter, but the non-appellant does not appear. In such cases,
it is not necessary to interpret the introductory portion of the hearing.
However, the testimony portion should be interpreted as the recording may
need to be played for the non-appellant in case of a reopening request.
- All testimony at a hearing should be under oath or affirmation and all hearing interpreters should submit to a special oath or affirmation for interpreters. An affirmation should be used whenever, for religious reasons, a person objects to the act of swearing to an oath.
- A proper form of oath for parties and witnesses is:
"Do you solemnly swear that the testimony you are about to give in this case will be the truth, the whole truth, and nothing but the truth?"
A proper form of an affirmation for parties and witnesses is:
"Do you solemnly affirm that the testimony you are about to give in this case will be the truth, the whole truth, and nothing but the truth?"
- A proper form of oath for interpreters is:
"Do you solemnly swear that you will truthfully and accurately interpret all the proceedings and translate all documents in this case to the best of your ability?"
A proper form of affirmation for interpreters is:
"Do you solemnly affirm that you will truthfully and accurately interpret all the proceedings and translate all documents in this case to the best of your ability?"
- Representatives of parties (attorneys, accountants, union business agents, etc.) need not be sworn unless they give testimony.
- Normally, the Hearing Officer will not place persons under oath when making an independent investigation; however, in such cases where a party makes a material contradictory statement to that made by one of the parties or witnesses at the hearing, such statements should be reduced to writing and made under oath. However, a party shall be given an opportunity to confront and rebut any such evidence if it is to be used against their interest.
- The oath should be administered in a manner indicative of a solemn undertaking. The oath should be stated in a deliberate manner and should not be rushed as if it was a routine matter to be disposed of quickly. The Hearing Officer should raise his/her right hand and look directly at the parties while administering the oath. The Hearing Officer should not look away or examine documents while the oath is being administered. In telephone hearings, it is not necessary to have the parties raise their right hands, but the oath will be given in otherwise the same manner as the in-person hearings.
- Each witness should be sworn prior to giving testimony, preferably at the beginning of the hearing. If the number of witnesses is small, and it will not detract from the seriousness of the ceremony, the witnesses may be sworn in as a group by the Hearing Officer. The response of all parties should be noted for the record.
- Parties to an appeal hearing have the right to appear without representation if they so desire.
- Section 207.007 of the Act provides that any individual claiming benefits in any proceeding before the Commission may be represented by counsel or other duly authorized agent. Commission Rule 18(3)(C), 40 TAC §815.18(3)(C) provides that any party may appear by an attorney or by any other party who is qualified to represent others. It is believed that this means that a party may bring anyone to the hearing to represent him/her, the only requirement being that the representative be the authorized agent of the party. Such representation should be permitted over the objection of the opposing party but subject, of course, to the application of Commission Rule 18(3)(D), 40 TAC §815.18(3)(D).
- Commission Rule 18(3)(D), 40 TAC §815.18(3)(D) confers upon the Appeal Tribunal the discretionary power to refuse to allow any person to represent others in an unethical manner or who intentionally and repeatedly fails to observe the provisions of the Act or the rules of the Commission.
- Commission Rule 18(4), 40 TAC §815.18(4) confers upon the Appeal Tribunal the discretionary power to expel from the proceeding any person, whether or not a party, who fails to comport themselves in a manner befitting the proceeding. Departmental policy (Appeal Memo 3-98) states that prior to exercising this authority, the Hearing Officer should first warn the person of the possible expulsion. If the disruptive conduct should recur, the Hearing Officer should call a recess and consult a supervisor.
- A partnership may be represented by any of its members or a duly authorized representative, and a corporation or association may be represented by an officer or a duly authorized representative [Commission Rule 18(3)(B), 40 TAC §815.18(3)(B)].
- It is the responsibility of the Hearing Officer to advise the parties of their rights, to give them an opportunity to fully develop their positions, and to insure that all evidence necessary for a fair decision is presented, regardless of whether or not a party is represented by an attorney or other, or has no representation. The Hearing Officer should be completely impartial in this respect, as it is his/her responsibility not only to provide a fair hearing for the parties involved, but to be sure that all necessary facts are established so that the decision will be in accord with the intent of the law and protects the public interest which sometimes does not coincide with the interests of the parties. The Hearing Officer is the authority in charge of any hearing he/she is conducting, and while every courtesy should be extended representatives of all parties, he/she must protect the right of any unrepresented party and must never let the proceeding get out of control.
- See Section 400 for consideration in ruling on motions by attorneys who are not familiar with Appeal Tribunal hearings.
- As of September 1, 2005, the statutory requirement for the Commission
to approve attorney fees no longer exists. Prior to the last legislative
session, Section 207.007(b) of the TUCA provided that..."Counsel or
an agent representing an individual under this subtitle may not charge or
receive a fee for these services greater than an amount approved by the
commission." Current state law, Section 207.007(b) of the TUCA reads,
"Counsel or an agent representing an individual under this subtitle
may charge and collect a fee for the counsel's or agent's services."
Occasionally, inquiries may be received from attorneys or other agents who
represent individuals at hearings. Those persons should be advised that
current state law has removed the requirement that the fees be approved
by the Commission.
- During the explanation of the hearing procedures, the Hearing Officer must advise parties of the right to have witnesses placed under the Rule, i.e., excluded from the hearing except when giving their testimony. The Hearing Officer should explain that the purpose of the Rule is to ensure that witnesses are testifying to their knowledge of events without being influenced by the testimony of other witnesses.
- A request that witnesses be placed "under the rule" should be granted upon application of either party. The requesting party is not required to offer any justification for its request. The Hearing Officer may, on his or her own motion and without the concurrence of the parties, place witnesses "under the rule". If witnesses for one party are placed "under the rule", witnesses for both parties must be placed "under the rule".
- The Hearing Officer may invoke the rule on his or her own motion and should not hesitate to use this procedure if there is reason to believe that better evidence will be obtained if a witness is placed "under the rule". On the other hand, a Hearing Officer should not routinely invoke the rule in all cases without application for such by either party or in the absence of any reason to believe that better evidence would be obtained if the rule is invoked.
- Each party is entitled to have at least one person present throughout the entire hearing. It is not permissible to place a party or a party's representative "under the rule". The term "party" includes the claimant and the employer. For purposes of placing witnesses "under the rule", the term "party" in the case of the employer is not restricted to those who are parties of interest, that is, employers with appeal rights. Proper implementation of this provision for placing witnesses "under the rule" may be problematical in the case of an employer which is not a sole proprietorship. If the employer is a corporation or a partnership, some officer or employee of the corporation or partnership is entitled to remain in the hearing room with the employer's hearing representative. The designation of such person shall be the prerogative of those representing the employer.
- The normal procedure in placing witnesses "under the rule"
is to administer the oath to all of them at the same time, then to direct
that they leave and remain out of hearing of the proceedings and not discuss
the proceedings in any manner among themselves. Witnesses should be cautioned
not to leave the area as they need to be immediately available when called
to testify. After witnesses have testified, they should not leave in case
they need to be called for further testimony later.
- In cases involving a continuance, the parties should be cautioned not to discuss the proceedings with the witnesses "under the rule". Such activity could jeopardize the testimony of the witnesses. In questioning a witness, the Hearing Officer should avoid summarizing an earlier witness's testimony or otherwise revealing the contents of that testimony. When a witness placed "under the rule" is called for testimony, the witness should be reminded on record that he or she is still under oath.
- In telephone hearings, placing witnesses "under the rule" requires
careful attention by the Hearing Officer. The opportunity for "prompting
a witness" can be substantially reduced if the Hearing Officer waits
to call the witness or witnesses at another site until it is time for the
witness or witnesses to give testimony. If the witness or witnesses are
at the same location, the Hearing Officer should ask the primary representative
to have the witness or witnesses leave the room until the time for the witness
or witnesses to give testimony and have the representative verify on the
record that the witnesses have left.
- Texas Rule of Civil Evidence 614 ("The Rule") provides in relevant
part that "This rule does not authorize exclusion of (1) a party who
is a natural person or the spouse of such natural person, (2) an officer
or employee of a party which is not a natural person designated as its representative
by its attorney, or (3) a person whose presence is shown by a party to be
essential to the presentation of his cause."
- In some cases it must be necessary that an independent investigation be conducted before a decision can be made. It is for the Hearing Officer to decide when an independent investigation is necessary. It may be necessary to contact parties who have no particular interest in the case. Examples are:
- Cases where it involves the claimant's wage credits. Frequently, the
employer will fail to appear at the hearing. The Hearing Officer should
make every effort to resolve the wage credit issue even if neither party
appears. If only the claimant appears at the hearing, and evidence from
a subsequent independent investigation results in a favorable decision,
the claimant need not be confronted with the new evidence. However,
if the new evidence would result in an adverse decision, another hearing
must be set to allow the claimant rebuttal opportunities.
See Section 603 for additional information on wage credit hearings.
- Work refusal cases where the employer to which the claimant was referred is not interested in the case and has not appeared.
- Cases where it is advisable to inspect the premises (seldom, if ever).
- Cases where it involves alien registration. Aliens occasionally have
to turn in original forms to the US Citizenship and Immigration Services
(USCIS). It may be necessary to contact USCIS for records pertaining
to the claimant's work authorization. With the change in the Immigration
and Naturalization Act, it may be necessary to verify information concerning
citizenship with USCIS. Contacts would be made to the nearest large
city office of USCIS, or with your immediate supervisor.
- If it is necessary to make an independent investigation, it is much better to make such investigation, if at all possible, prior to the hearing or before the hearing is adjourned in order that the party or parties present may be confronted with the information obtained.
- In all cases where an independent investigation is made, a full written report of the investigation should be prepared immediately and made part of the file.
- A party must be given an opportunity to confront any adverse evidence
and to give rebuttal before the evidence can be used in a decision. The
Hearing Officer should be liberal in determining what is considered potentially
adverse to a party and should always confront the party with the evidence
if there is any doubt.
- The Hearing Officer has jurisdiction only over the matter from which the
appeal was taken. No additional issues should be heard or decided without
first giving notice of such issue to the parties, and without obtaining
their agreement to proceed on that issue (waiving notice). Such waiver must
be obtained on jurisdictional issues, such as timeliness of the appeal,
but is not necessary for issues of incorrect last employer or chargeback.
See additional information on waiving notice under Section 307.11.
In any case where it is discovered that the party who filed the appeal
has no authority of record to do so, the Hearing Officer should ask the
party at the hearing whether he/she authorized the filing of the appeal
before it was filed. If the appellant has not previously authorized the
filing of the appeal, it would be acceptable to have him/her ratify the
filing of the appeal at the hearing. Necessary authority will be a matter
of record if the case is further appealed to the Commission.
- In order to insure "due process" in any wage credit or chargeability
hearing, the claimant must be given an opportunity for rebuttal of information
if there is a possibility that wage credits may be deleted. Particularly
in cases of one-party chargeback hearings, the hearing must be reset to
afford the claimant an opportunity to rebut the employer's testimony. See
Section 310 for additional information on
rebuttal and confrontation procedures.
- Each hearing involving benefits should cover adequate background information
concerning the issues so that the Hearing Officer will have a better understanding
of the claimant's position. For example, the Hearing Officer should review
as much of the information in the file as possible prior to the hearing.
- The Hearing Officer should familiarize himself/herself with all investigation
reports made by the Benefits Department pertaining to the issues in the
hearing. It may be necessary to question the parties concerning the file
information, and possibly enter some file documents into the record as exhibits.
See Section 412 for additional information
concerning exhibits.
- In hearings involving an issue relating to the claimant's separation
from the last work, the Hearing Officer should first verify that the employer
named on the claim as the employer for whom the claimant last worked was,
in fact, the last work performed by the claimant prior to filing the claim.
- In cases involving the claimant's separation from work, detailed information
should be obtained concerning the claimant's last work such as the dates
of employment, job title and duties, hours of work, rate of pay, and complete
facts on the reason for separation from work.
- In many cases a decision can be reached only after interpretation of
a labor-management agreement, house rule, personnel policy statement, etc.
It is desirable in every case of this type to obtain copies of these agreements
and introduce them into the record. These should be authenticated. To do
this, it is necessary to verify that it is the document that it purports
to be and that it is actually the agreement which is or was in effect at
the time of the circumstances under investigation. In some cases, the Hearing
Officer may find it helpful to obtain copies of other documents made pursuant
to the main agreement, such as directives, orders, agreements, or other
media.
- In hearings where ability to work and availability to work are issues
on the Notice of Hearing, the claimant should be questioned in detail. With
intrastate claimants, the claims office has informed the claimant how many
employer contacts must be made each week, and what type of contacts (in-person,
telephone, resume) are acceptable. Interstate claimants do not follow that
procedure, but are still required to meet the eligibility requirements.
The exact dates of ineligibility, if any, should be established. Since the
claimant's search for work is a determining factor in most cases in ruling
on the claimant's availability for work, the Hearing Officer should inquire
as to the names of employers the claimant has contacted, the dates contacted,
the type of work for which the claimant applied, the names of individuals
the claimant contacted, and the results of these contacts. When questioning
a claimant in regard to availability for work, it is suggested that the
Hearing Officer ask the claimant how he/she usually obtains employment and
determine if those things are being done in order to obtain employment.
In some cases, it may be advisable to inquire as to how the claimant obtained
his/her last three jobs. The Hearing Officer should check claims records
to see how many work search contacts are being required for the claimant.
Information regarding the claimant's work registration activity is available
through "Work in Texas." The Hearing Officer should also consult
Commission Rule 28, 40 TAC 815.28 on work search related issues.
There may be ability/availability issues raised for the first time at a
hearing on an appeal involving other issues. The Hearing Officer should
create a case for investigation in the mainframe Benefits system so that
a determination may be issued by the tele-center.
- In cases where continuing ineligibility is the issue, the Hearing Officer
has jurisdiction fourteen (14) days prior to the date of the determination
on the theory that each day of the ineligibility becomes final fourteen
days from the date in question. Some of the Sections of the Texas Unemployment
Compensation Act which should be considered are 207.041, 207.042, 207.043,
207.021(4), 207.048, 207.049, and 207.052.
- Whenever an appeal from a determination is also timely to one or more
determinations issued by the Benefits Department, the Hearing Officer should
cover only those issues on appeal.
- There may be instances where either an issue was inadvertently omitted
from the Notice of Hearing or a new issue is raised for the first time at
the hearing. Procedures for handling these situations differ.
In cases involving issues that are on appeal, but were omitted from the
Notice of Hearing, the Hearing Officer should first inquire of the interested
parties if they are willing to waive the fact that they had not received
prior notice. When explaining the options to waive notice, the Hearing Officer
should explain that, by waiving notice, there will be an immediate ruling
on the issues as a part of the decision whereas, by declining waiver, the
hearing will be continued to a different date to allow proper notice. The
Hearing Officer should avoid any appearance of duress or coercion. If the
parties will not waive notice to an omitted issue, the Hearing Officer should
take as much testimony on the noticed issues as possible and then continue
the case for the omitted issue after proper notice.
In some cases, the issue of whether the claimant was unemployed and the
claim is valid may be raised as a new issue. If this issue was not on the
notice, the claimant must have appeared and given waiver or the issue may
not be covered in that hearing. Without a claimant waiver, the Hearing Officer
should cover the other issues as much as possible and then continue to have
this issue added to the Hearing Notice.
If a new issue has been raised for the first time at the hearing, and no
determination on that issue has been issued by the tele-center, the Hearing
Officer should not attempt to take original jurisdiction. Rather, he/she
should refer the matter to the UI Support Services Department using the
on-line case creation feature under the UI Claims menu. Limited testimony
sufficient to create a case should be taken on the new issue. An example
would be where the Hearing Officer is assigned a case based on a partial
separation from employment, but testimony develops an issue of a subsequent
total separation that has not yet been adjudicated.
A party may raise an issue which was not on the Notice of Hearing at the
hearing where a determination has been issued by the Benefits department.
Such a situation may occur when the party meant to appeal the issue, but
did not indicate that fact clearly enough in the appeal request. In that
case, the Hearing Officer will use the same procedure as an issue on appeal
that was inadvertently omitted from the Notice of Hearing.
- Some "new" issues require special handling. Issues requiring
a fraud investigation, such as unreported earnings, should be referred to
UI Claims Fraud via electronic e-mail. Do not use the on-line case creation
feature to initiate a fraud investigation.
Likewise, where the evidence obtained in the hearing shows that the claimant
worked for the employer during the base period of the claim, but the employer
is not reflected as a base period employer, the Hearing Officer should send
an e-mail to the head of Field Tax requesting an investigation of the employer's
tax liability.
- Both sides should be given the opportunity to add to the record immediately
before the hearing is adjourned. The Hearing Officer does not have to solicit
final arguments from the parties. However, if either party requests to make
a final statement, the Hearing Officer should grant this request and give
the opportunity for a closing statement to the other party as well. The
Hearing Officer should tell the parties not to base their arguments on facts
not in evidence.
- The Hearing Officer is responsible for obtaining a complete and clear
record of all testimony taken in a hearing. The testimony presented to the
Hearing Officer must be preserved so that it may be reviewed on appeal to
the Commission or may be reviewed to answer subsequent charges that may
be made by a party to the hearing. Recordings are now made digitally using
a web based system and many of the prior recording problems have been eliminated.
However, if the digital system is not available, the Hearing Officer should
use a tape recorder rather than canceling hearings.
- Only the Hearing Officer controls the record of evidence. The Hearing Officer should not permit witnesses or representatives to indicate "off the record." Statements can be off the record only when the Hearing Officer directs. If checking tape quality or changing tape sides, the Hearing Officer must secure party concurrences that no discussion of the case took place while off record. If any discussion occurred, a summary with party concurrences must be obtained.
- Occasionally, the Hearing Officer will have requests by one or both of the parties that they be permitted to bring a recording machine to the hearing to record the testimony or to have it recorded by a reporter. As this practice is consistently permitted in all courts of record, we do not believe that we have the authority to deny the parties the right to record the hearing. It should be pointed out to them, however, that the official record of the hearing is the record which is being made by the Hearing Officer and that it will be controlling in any dispute which may arise with respect to what actual facts were included in the record.
- The following points should be kept in mind in obtaining a satisfactory recording of a hearing:
- The recording is to preserve the testimony. The Hearing Officer should go off-record to check the quality of the recording within the first five (5) minutes of the hearing. The sound quality check should include a sample of the parties' voices as well as that of the Hearing Officer.
- If a tape recorder is used, it should be allowed to warm up for a few
minutes before the beginning of the hearing. The Hearing Officer should
check the cassette tape to insure that the tape is advanced enough to
record the beginning of the hearing.
- For in-person hearings, microphones should be placed closer to the parties
than the Hearing Officer. Microphones should never be placed on top of
the recorder. Portable cassette tape recorders without microphones should
be used only in emergency situations.
- At the beginning of the hearing, during the opening statement, all key persons, including the Hearing Officer, must be identified.
- Each new voice coming onto the record must be identified by referring to the party by name.
- Only one voice should speak at a time. When more than one voice has spoken at the same time, each must repeat its statement singly. The listener cannot know the importance of the statement if it cannot be understood.
- If using a cassette tape, it should be changed to the second side immediately
at the sound of the thirty (30) minute buzzer. There will be a warning
buzzer at approximately twenty-five (25) minutes with most equipment that
we use. When going back on record on the second side, identifying information
concerning the appeal should be read into the record.
- Persons with soft voices or mushy pronunciation and distant persons, including those who turn their heads away from the microphone and others, are sometimes impossible to understand. The Hearing Officer must take charge and cause witnesses to speak up and to enunciate clearly. When in doubt, stop the proceedings and test the recording.
- Any words used in the hearing that are unclear or vague should be clarified
immediately by the Hearing Officer.
- Coughs, sirens, passing trucks or automobiles, carpenter work, and other noises may cause the loss of important and key works, such as "not". Extraordinary care must be used under adverse conditions. The testimony may be repeated when doubt exists as to a clear record.
- Attempt to have all persons speak as slowly and distinctly as reasonably can be done. The Hearing Officer may diminish or accelerate the tempo by creating a proper example. Voices should be "projected" rather than loud. Witnesses will unconsciously imitate the Hearing Officer.
- At a hearing before a Hearing Officer, neither party has the burden of establishing a specific contention or of overthrowing a claims examiner's determination. Because the position of a Hearing Officer at a hearing is one of a disinterested investigator seeking to gather all pertinent facts, and because of the underlying social purpose of the unemployment compensation law, no procedural burden exists upon the parties to a hearing in the sense that such a burden ordinarily is imposed upon litigants in courts of law. The ultimate burden is upon the Hearing Officer to get the complete and accurate facts pertinent to the case upon appeal. The Hearing Officer should not, therefore, attempt to burden a party with the task of presenting affirmatively all the evidence on a specific issue.
- A claimant is entitled to benefits when he/she meets the eligibility conditions unless the Hearing Officer is affirmatively satisfied of the existence of facts requiring disqualification. The Hearing Officer must be affirmatively satisfied, by the facts presented, that the claimant meets the eligibility conditions.
- The Hearing Officer should explain in the opening statement the order
of presenting evidence that the hearing is likely to follow. For a separation
issue, the testimony begins with the side that initiated the separation
from employment. In a wage credit case, the testimony begins with the side
challenging the accuracy of the existing wage credits. In any two party
hearing, the Hearing Officer should always make some statement regarding
the order of proof in order to comply with federal standards. Before commencing
the testimony on the main issue(s), the Hearing Officer may take background
information from either party (dates of employment, etc.), but generally
the claimant will have the requested information most readily and the Hearing
Officer can identify any issue of incorrect last work at the outset.
- At the time of the hearing, any party (employer or claimant) who appears
should be confronted with all evidence in the file, documentary or otherwise,
whether secured by independent investigation or not, which is adverse to
their interest and which may be considered in arriving at a decision in
the case. The Hearing Officer should be liberal in deciding what might be
considered adverse to a party's interest.
- If circumstances are such that the Hearing Officer is unable to make an
independent investigation before the hearing, he/she should not use the
information secured subsequent to the hearing to reach a decision adverse
to the interest of either party unless such party has had an opportunity
to be confronted with such information. In this situation, before a decision
is made, the case should be reset to allow the party concerned an opportunity
to offer rebuttal testimony. This same procedure applies to affidavits received
from either party which are received subsequent to the date of the hearing.
Information contained in the affidavits which is adverse to the interest
of the opposing party should not be used in reaching a decision unless the
opposing party has had an opportunity to rebut the evidence in the affidavit.
- In cases where one party has appeared at the hearing by affidavit and
there is direct conflict between the information in the affidavit and the
testimony of the party who appeared in person and this information is material
to the appeal decision, the Hearing Officer should make a decision based
on the testimony and evidence at hand rather than reset the hearing. It
should be remembered that in most cases, direct testimony will carry greater
weight than affidavits.
- If one party arrives late to an in-person hearing or calls in late to
a telephone hearing, and is going to be included in the hearing, the Hearing
Officer must either replay the tape of the hearing to that point or begin
the hearing again. Any procedural information that may have been omitted
with the initial instructions should be supplemented after the late-arriving
party is included in the hearing.
- In cases where a hearing has been reset under Commission Rule 16, the
Hearing Officer should play the testimony from the previous hearing for
the opposing party present at the subsequent hearing. Even if both parties
are now present, the previous hearing tape should be played. The party appearing
at the previous hearing can then be asked to supplement their testimony
if they so desire. The Hearing Officer should keep in mind that the opposing
side has the right to cross-examine on any testimony taken at a previous
hearing.
It is not necessary to play a hearing record for a party who was present
or was represented at an earlier hearing or has had an opportunity to hear
that record. A recording should only be played for a party if that party
was not represented at the earlier hearing. If a party chooses to change
representatives for a later hearing, the recording should not be played
since that party was already represented at the earlier hearing. If the
Hearing Officer is aware of a substitution in time, the Hearing Officer
can have a recording of the earlier hearing sent to the new representative
prior to the hearing.
- Some two-party hearings may have ineligibilities included in the appeal.
The Hearing Officer should never dismiss the employer or suggest the employer
drop out of the hearing prematurely. Even though the employer may have nothing
to offer on these issues, dismissing the employer can create the appearance
of unfairness. However, if the employer asks if they can drop out of the
hearing after the separation has been covered, they may, of course, do so.
- Non-base period employers who have appeal rights may file an appeal, and
the Hearing Officer should never suggest a withdrawal because the employer
has no potential chargeback.
- Commission Rule 16(3)(A), 40 TAC §815.16(3)(A) provides that hearings shall be conducted informally and in such a manner as to ascertain the substantial rights of the parties.
- The Hearing Officer should afford each party the opportunity to tell their story fully, but should limit the parties to providing relevant material.
- Witnesses should be instructed to speak distinctly and as loudly as necessary to record successfully.
- When the witness is asked a question, he/she must be allowed to answer it before another question is asked. Questions asked too rapidly will frequently destroy the answer the witness is trying to give. Also if the witness is not permitted to finish the statement, it will appear in the transcript that the Hearing Officer has cut him/her off.
- The control of the hearing should, at all times, rest with the Hearing Officer. Ordinarily, the Hearing Officer will conduct the examination of the witnesses.
- Parties and their representatives must be permitted the opportunity for reasonable examination. The Hearing Officer should control and direct the examination conducted by parties or their representatives. Such examinations should not be permitted to stray from the pertinent evidence, nor should they be allowed to degenerate into arguments or mere heckling.
- When offering the right of cross-examination to a party, the Hearing Officer should exercise care in the use of legal terminology. Parties not familiar with legal terminology can become unduly tense which could affect the quality of the hearing.
- It is also dangerous to refer to an individual who is about to testify as a "hostile witness". In legal terminology, a "hostile witness" is merely one who is called by the opposing side or who is not expected to be friendly to that side. The advantage of labeling a witness as "hostile" is that it permits the opposite side to ask leading questions. One's own witness may show by statements and actions that he/she has become hostile and when it occurs, leading questions may be asked. The danger in our practice is that the parties themselves do not understand the meaning of the word "hostile" and sometimes become incensed to the point of demanding a postponement. Consequently, it is well to avoid the use of the word "hostile" and if it is introduced by attorneys present, the witness should be instructed with respect to the significance of the term in order to avoid misunderstanding.
- Under no circumstances should a Hearing Officer permit "bullying" or intimidation of witnesses; nor should the Hearing Officer engage in any such practice. The dignity of the Tribunal, the decorum of a hearing, and the ordinary courtesy due the parties, their representatives and their witnesses, require that the Hearing Officer prevent haranguing, altercations, or any form of rowdiness during the hearing of an appeal.
- The Hearing Officer should permit only one person to speak at a time. When a witness is testifying, no one else should be permitted to break in.
- Occasionally it is apparent that a witness' testimony will be difficult to understand because of a heavy accent, speech impediment, etc. In this situation, the Hearing Officer should repeat any unclear answers to confirm the testimony for the record.
- When a witness uses proper names in giving testimony, the Hearing Officer should get the identity of the individual or place with the subject matter of the appeal. (For example, when the claimant says, "Joe Smith told me there wasn't any job for me any more", ask "Who is Joe Smith?".)
- When a witness uses a proper name, the Hearing Officer should try to get the correct spelling of the name.
- The Hearing Officer should not suggest testimony or the response they anticipate. Questions should be phrased in an interrogatory manner requiring the witness to provide information from their own personal knowledge or observation.
- As a general rule, the shorter the question and the more narrow its scope, the greater is the comprehension and the usefulness of the answer. Complicated questions encourage unresponsive answers.
- Only one question should be asked at a time. The witness should be required to answer definitely the question before proceeding to the next question.
- Questions should be framed in language that the witness understands. Avoid asking questions containing a negative pregnant (e.g., "Did you destroy the record on Tuesday, June 15, 1993?". A negative reply to this question is said to be pregnant with an admission that the record might have been destroyed on another day.)
- The "controlled narrative" is the best way of developing testimony in most hearings. This method involves the Hearing Officer asking the witness to recount relevant testimony in their own words. The Hearing Officer then follows that testimony with a more focused "question and answer" format as necessary to clarify details, the source of the witness' knowledge of events, etc.
- The narrative question is the method most frequently used by expert examiners after a proper foundation is laid. This type of question can be defined as the asking of a witness to relate what is known about a particular situation in their own words. Care must be taken that testimony does not become unduly long, repetitious, or irrelevant.
- The Hearing Officer should be careful to inform an unrepresented party of the right to question an opposing party or witness. The Hearing Officer should aid the party in framing questions if necessary in the interrogation.
- Parties and their representatives have the right to question their own witnesses, but they should not be permitted to lead or coach or prompt their witnesses. They will be allowed to ask leading questions when examining a dull or uncooperative witness, such as on cross-examination.
- The Hearing Officer should maintain an impartial demeanor throughout the proceeding when addressing or questioning witnesses. Gratuitous comments or observations should not be made. Hearing Officers should never indicate their disbelief of testimony or the reasonableness of a party's actions. The Hearing Officer is charged with the responsibility of determining the credibility of witness testimony and evidence and any expressions regarding the credibility of a party or witness should be reserved for the written decision.
- The Hearing Officer should not argue with witnesses or parties and should not allow them to argue with each other. It is not proper for the Hearing Officer to ask leading questions unless dealing with a dull or reluctant witness.
While Hearing Officers have the authority under Rule 18 to expel participants whose intentional and repeated disruptions of the hearing preclude a fair hearing, this action should be taken as a last resort and after consultation with a supervisor. The Hearing Officer should handle unruly parties by first instructing them that such behavior will not be tolerated and that you will expect all parties and witnesses to show the same courtesy of not interrupting one another or disrupting the proceedings.
Any disruptive individual should be first given a warning on the record, of the possibility of their expulsion from the hearing, should their behavior persist. If the problem continues, you may consider taking a brief recess (five minutes), to allow the participant to calm down and reflect on their behavior. If these measures are not successful, the disruptive individual may be expelled under Rule 18, with the concurrence of a supervisor.
- The Hearing Officer should not ask questions that call for conclusions, such as: "Was claimant intoxicated?". Rather, the Hearing Officer should ask detailed questions which will allow him/her to decide whether the claimant was intoxicated or not. Examples are: "Was claimant staggering at the time?". "Did his breath smell of liquor?" "Was his speech thick or incoherent?"
- The fact that most hearings are conducted via the telephone makes it particularly important for the Hearing Officer to identify to whom he/she is addressing a question and to ensure that the parties are identified when speaking.
- The examination of persons should proceed in an orderly manner. It is the duty of the Hearing Officer to see that testimony of each witness is exhausted as nearly as possible before the next witness is questioned. The examination of witnesses should not skip from one to another. If questions are suggested by a witness himself, the Hearing Officer should make appropriate notes for the further interrogation of that or other witnesses.
- When dates are mentioned, the day, month, and year should be given.
- If the testimony refers to form numbers, code numbers, symbols, abbreviations, or technical terms, the Hearing Officer should have these spelled out and explained in language simple enough for any ordinary individual to understand.
- The Hearing Officer is in charge of the hearing and should not permit the parties to use profane or vulgar language indiscriminately in giving their testimony. If the alleged profane or vulgar language is a part of the separation itself, it must be allowed to come in. If the claimant resigned because the foreman called the claimant a profane name, the Hearing Officer could state in the decision that the claimant resigned with good cause connected with the work because the foreman called him/her a profane name. Unless the actual name the claimant was called is in the evidence the Hearing Officer or others reviewing the file would have no basis to judge whether the name was profane or not.
- In the spouse-leaving provision of Section 207.045 of the Texas Unemployment Compensation Act, the Hearing Officer should consider whether:
- claimant gave the customary notice of leaving generally observed at
the claimant's place of employment or generally observed in the claimant's
trade or profession; and worked until the end of the notice period.
- the claimant, in fact, left the area of employment to accompany their
spouse; i.e., was the claimant's quitting proximate in time to leaving
the area of employment?
- the spouse had a compelling reason to leave the claimant's area of employment, i.e. spouse's job opportunities or health; and
- the claimant offered and/or agreed to train a replacement during the notice period.
- In cases involving substitute teachers, the Hearing Officer should obtain information from the school districts that the relationship was expected to resume at the beginning of the following year. Written statements which provide facts that the substitute teacher had been asked to continue in a similar capacity are required rather than merely placing the substitute teacher on a list for the following year.
- When relevant and material documents necessary to decide a case have not been provided to the Hearing Officer or the opposing side, the Hearing Officer may schedule a continuance to obtain the evidence if other measures described in Section 316 have been unsuccessful. The record of the claimant's answers on continued claims should be made an exhibit in hearings involving eligibility issues.
See Section 316 and 412 for proper procedures with exhibits.
- Some principles of good listening are as follows:
- Stop Talking. You cannot listen if you are talking.
- Put the witness at ease. Help them feel comfortable to relate their testimony.
- Let the talker know you are interested in what they have to say.
- Be patient. Do not interrupt, except to maintain control.
- Do not put the talker on the defensive. Encourage their candor.
- Ask questions that indicate you have been listening to what they have said.
- Stop talking! This is the first and last principle of good listening.
- Section 301.073 of the Texas Unemployment Compensation Act grants immunity from prosecution for any criminal matter, if a party or witness is compelled to testify after having invoked their 5th Amendment privilege against self incrimination.
If the hearing involves a potential criminal matter and the party or witness
expresses reluctance to testify concerning a matter for which they could
be criminally prosecuted, the Hearing Officer should make them aware that
their failure to present testimony in the U.I. hearing may result in their
failure to present the preponderance of credible testimony and the loss
of the case, however, they will not be compelled to testify if they wish
to invoke their 5th Amendment rights against self incrimination. The Hearing
Officer should never compel a person to answer a question who has invoked
Fifth Admendment rights.
- Commission personnel should be called as expert witnesses when their testimony would be relevant and material to the issue. For example, when there is an allegation of misinformation on behalf of a commission representative, an attempt should be made to determine the name of the commission employee and arrange for them to offer testimony on that issue.
Expert testimony should be obtained on such issues as availability for work, where the issue hinges on whether a claimant is demanding a wage in excess of that most commonly occurring for the type of work they are seeking and qualified to perform. Likewise expert testimony should also be obtained for issues related to restrictions on the hours of work an individual is willing to accept. The record of the claimant's answers on the continued claims screen (BPRD screen in the Benefits System), should be entered as an exhibit for the Commission in hearings involving eligibility issues.
The Tax Department will be sent notice of wage credit hearings in which an employing unit's liability for taxes is at issue. Any tax representative who participates in the hearing should be identified as a Commission witness.
- A TWC representative should be given adequate notice that they are needed as a witness in order not to disrupt the representative's work schedule any more than necessary. To avoid misunderstandings, the matter should be cleared with the immediate supervisor of the proposed witness.
- Although it is rare, there have been cases in which TWC representatives have refused to testify. If this occurs, it should be pointed out to the representative the necessity of having his/her testimony. If the representative still refuses to testify after the matter has been fully explained and the testimony is essential, the hearing should be postponed and the Chief of Appeals notified. The case will be reset and steps taken to secure the testimony of the needed witness.
- The Hearing Officer must administer the oath to the TWC representative
and inquire as to his/her credentials as an "expert witness".
Both parties have the right to cross-examine the TWC representative. However,
a Commission representative is not a party to the proceeding and should
not be accorded party rights such as the opportunity to question witnesses.
- An appeal evolving from an investigation of the Benefit Accuracy Measurement
(BAM) Unit may require a member of that unit to be present at the hearing.
The auditor should be treated as a Commission witness and questioned thoroughly
as to the basis for the determination. After the hearing, a courtesy copy
of the decision should be mailed to the BAM Unit.
(Commission Rule 16, 40 TAC §815.16, (4)(A) and (B))
- The Hearing Officer will use his/her best judgment as to when to adjourn,
continue, or postpone hearings in order to secure all the evidence that
is necessary and to be fair to all parties. The Hearing Officer should always
continue if the allotted time is used and the parties have not finished
presenting their evidence. If a party requests a continuance or postponement,
the Hearing Officer should ask the reason for the request for the record.
If the reason falls within those outlined in Commission Rule 16, the Hearing
Officer should grant the request. If the reason is not one of those stated
in Commission Rule 16, the Hearing Officer should not grant the request
without the concurrence of a supervisor. Party conversations should be properly
documented in the case folder. Postponements to comply with the Gutierrez
settlement are covered in Section 300.19.
- The state office will attempt to anticipate the length of time required for each hearing. At times, however, more time than that allotted will be needed to complete the hearing. If this occurs, and the parties for the next scheduled hearing have called in to participate, the prior hearing must be continued and the next scheduled hearing begun on time. Hearing Officers should not proceed to run a prior hearing into the time allotted for the next hearing. If the appellant for the next scheduled hearing fails to call in, the hearing officer, after calling and dismissing the appellee, may continue the hearing in progress into the time allotted for the next hearing.
- The Hearing Officer has the authority to order a continuance to allow parties to complete their case. The parties should never be limited to a set amount of time because the Hearing Officer has other hearings scheduled later. The Hearing Officer should not approach this issue in a manner which may discourage any party from adequately presenting their case.
- The Hearing Officer should make every effort to continue hearings to one
of their office days. Hearing Officers are expected to schedule up to two
hours of continuances, if needed, on office days. The parties should be
advised that the hearing will be scheduled for one of the next two office
days. If they object, due to a previously scheduled conflicting matter,
the hearing should be promptly reset using the normal e-mail procedure in
the regular scheduling process, after determining from the parties when
they would not be able to participate. Such information should be conveyed
to the scheduler in the e-mail reset message, along with any special considerations
such as the anticipated time needed to complete the hearing. A separate
request should be made for each claimant to prevent the disclosure of confidential
information. The file should be retained by the Hearing Officer pending
resetting. If documents need to be sent with the next hearing notice, those
documents should be transmitted to the state office to be scanned and included
in the packet. The Hearing Officer is responsible for notifying the scheduler
promptly of cases needing to be reset for a hearing..
- It may be necessary in the case of an in-person hearing to schedule the continuance by telephone. This may be the case if the Hearing Officer is conducting in-person hearings at a location remote from his/her regular office. Potential length of the continuance, number of witnesses or possible exhibits, and the complexity of the case are all factors to be considered in converting an in-person hearing to a telephone continuance.
With a telephone continuance, prior to adjourning the in-person hearing, you should first inquire of the parties whether they have any documents not yet taken into the record as exhibits which they may offer as exhibits later in the hearing. It is not required to take such exhibits into the record at that moment, rather it is an opportunity to make copies of possible exhibits to share with both parties. This procedure will not preclude a party from being allowed to offer an exhibit at the continuance even if the document was in their possession at the earlier hearing. There may be instances in which a new fact issue arises at the telephone continuance to which a party's document is relevant and that party could not have reasonably anticipated the issue.
- A memorandum should always be in the file showing the reason for any postponement or rescheduling which is requested.
- If the Hearing Officer finds from information in the file that the hearing should never have been scheduled (e.g., the determination was not adverse to the appellant, the document identified as the appeal was not really an appeal, etc), the Hearing Officer should cancel the hearing. Both parties should be notified as soon as possible. The file should be returned to State Office Appeals with a short memorandum concerning the cancellation in order to insure proper disposition.
- The Hearing Oficer should, prior to adjourning, ask each side separately
if they have any new additional relevant testimony to offer. If so, they
should be allowed to present it and cross examination should be afformed
immediatley afterward. This procedure should be followed until neither side
wishes to add any additional relevant testimony. The Hearing Officer should
not solicit a closing argument, but should a party request the opportunity
to make one, it should be allowed. The Hearing Officer should not solicit
questions of the parties prior to adjournment. If a party asks a question
regarding the appeal procedure, the Hearing Officer should answer it, but
questions regarding claims or tax matters should be referred to the appropriate
departments where more knowlegable persons can respond.
- After final statements, the Hearing Officer should advise the parties
that:
- The parties will receive the Hearing Officer's written findings and
decision by mail.
- That the claimant should continue filing claims while awaiting the decision
if unemployed.
- Finally, the Hearing Officer should note the time the hearing is concluded.
(Note: The Hearing Officer should make no promises as to when the decision
will be mailed as there are normally factors outside the control of the
Hearing Officer which may affect when the decision is mailed.)
- The Hearing Officer should not indicate to the parties what the decision
will be.
- The Hearing Officer should also advise the parties of their right to
further appeal. There should be no discussion of the merits of the controversy
with the parties after the hearing is adjourned.
- Where the appellee has failed to appear, the Hearing Officer should explain
to the party present the provisions of Commission Rule 16, 40 TAC §815.16
in regard to the possibility of a reopening.
It should further be explained that if the case is scheduled as a reopening,
the party who has offered testimony at the first hearing will be requested
to again appear in order that they may refute any new testimony which might
be offered. However, they should also be assured that all testimony offered
at the first hearing will be given due consideration even though they may
not appear at the second hearing.
- The hearing should not be adjourned until each side has had a distinct
opportunity to add any additional relevant testimony. The opportunity for
both parties to add testimony should not be combined in one question. Nor
should the Hearing Officer indicate the hearing will be adjourned unless
any one has anything else to add. The time the hearing is adjourned should
be noted on the tape and the parties should be advised of their appeal rights.
Finally, the tape should remain on, until the hearing has been adjourned.
- After a decision is rendered, the Hearing Officer should be careful about
discussing the merits of the case or the reasons for the decision with the
parties. If a party disagrees, they should again be given information concerning
further appeal rights. If a party contacts the Hearing Officer and states
the party didnot receive the decision, the Hearing Officer should have a
copy mailed to the party by the state office. The Hearing Officer should
not mail duplicate decision copies to parties.
- If claimant gives the Hearing Officer a change of address, it is the responsibility
of the Hearing Officer to enter the new address into the benefits system.
- If an issue came up during the hearing that has not been adjudicated,
it is the responsbility of the Hearing Officer to create a case in the benefits
system. The Hearing Officer should exercise caution and make sure there
is a real issue to be investigated before creating a case. For example,
an investigation should not be set up for unreported earnings if the claimant
never filed continued claims for the period he worked.
- Commission Rule 18(2), 40 TAC §815.18(2) provides that orders for
supplying information from the records of the Commission to a party to the
appeal, or their representative, to the extent necessary for the proper
presentation of a claim, shall issue only upon application of a party to
the appeal which specifies as nearly as possible the exact nature of the
information desired. It is the basis of a fair hearing that the parties
are entitled to know allegations made against them in order that they may
prepare an adequate defense.
- Either party has the right to copies of any documents in a file that pertains
to them. One or both parties may also request a copy of the cassette tape
of the hearing. No charge will be made for either request. Certification
of tapes is optional. All such requests must be made in writing by the party
and sent to Texas Workforce Commission, Tape\Document Duplication, TWC Bldg.,
Austin, TX 78778.
- The parties have the right to examine documents introduced into the record.
It is permissible to allow parties to examine the file prior to the hearing
if they request to do so. Attorneys will often make such a request.
- Statements taken by an investigator during the initial investigation of
the claim, documenting the prior decision-making process, will be included
in the information packet mailed to the parties with the hearing notice.
Administrative notice should be taken by the Hearing Officer of the fact
that the packet containing the hearing notice and related agency records
and relevant documents in our possession were mailed to the parties.
Although the responses to the fact-finding documents are technically hearsay,
they may have evidentiary value (e.g. prior inconsistent statements). In
this case the fact-finding statements should be marked as evidence in accordance
with the proper procedure for admission of documentary evidence. The fact-finding
statements should also be examined by the Hearing Officer in advance of
the hearing, as they often will assist in alerting the Hearing Officer to
questions that should be asked during the hearing.
- Requests for information from individuals not a party to an appeal should
be referred to the Open Records Department in the state office.
- On the whole, telephone hearings are conducted in the same manner as in-person
hearings. Any differences pertain to the technical aspects rather than procedural
aspects. The Appeal Tribunal may schedule the hearing to be conducted by
telephone if one or more parties are out of state, the parties are at different
intrastate locations, both parties are at a location infrequently served
by itinerant Hearing Officers, the Commission is required by Section 301.064
of the Act to provide language interpreters, or if in-person hearings have
been determined by the Administrator to be impractical because of the large
volume of appeals and/or limited funding resources.
- Requests for in-person hearings rather than telephone hearings will not
be granted except under the most compelling circumstances. A party's desire
to confront the opposing party or their witnesses will not warrant the scheduling
of an in-person hearing in a case which would otherwise be scheduled as
a telephone hearing unless the opposing party is located in an area in which
in-person hearings are routinely conducted and the request for in-person
scheduling is made prior to the hearing being scheduled by the Appeals Department.
- Telephone hearings are conducted through telephone conference equipment.
The Clear2There website should be used for any hearing involving more than
one telephone location. If Clear2There is not available, the appropriate
conferencing system should be used and the hearing recorded on tape.
- If the parties have difficulty hearing each other because of a poor conference
connection, it may be necessary to replace the call to improve the quality
of sound. If the parties continue to have difficulty, sometimes having the
Commission switchboard operator place the calls will improve the quality.
If there is continuing difficulty, the Hearing Officer has the following
options:
- Reset the hearing on another day if convenient to both parties.
- Postpone the hearing until it can be reset from a different location.
- Both parties should be advised to speak up and speak distinctly. The Hearing
Officer should caution the parties at the beginning of the hearing to notify
the Hearing Officer immediately if they are having difficulty hearing the
other party.
- Each party, or each party's primary representative, must have their witnesses
ready to participate in the hearing at the scheduled time and must be prepared
to provide the Hearing Officer, at the outset of the hearing, with the telephone
numbers from which all their witnesses will be participating in the hearing.
- Parties to a telephone hearing are directed by the hearing notice to call
in to a designated number during the 30 minute period prior to the scheduled
hearing time. It is the parties' responsibility to place the initial call
to the number designated on the hearing notice during the appropriate 30
minute time period. A party's failure to call in as instructed prior to
the hearing time may result in the party not being allowed to participate
in the hearing.
- It is the responsibility of each party, or their representative, to initiate
contact for the hearing as indicated on the notice of hearing. Every effort
should be made to insure that the correct number was received; however,
if the wrong number was given, the Hearing Officer should wait as long as
reasonably possible before starting the hearing with the other party. The
Hearing Officer should attempt to locate a correct number through file records.
Pay telephones can pose a particular problem in that some pay phones cannot
receive calls.
- Added care is required in telephone hearings to identify different voices.
Proper names should be used whenever possible. When given the oath, each
party should be asked to answer separately. The Hearing Officer shall ask
all persons giving testimony to identity themselves by name and date of
birth and afford the parties the opportunity to challenge the identity of
a witness.
- The hearing should be identified on record as a telephone conference hearing.
- The actual conducting of the hearing will follow the same procedures as
in-person hearings.
- The Hearing Officer shall grant any party's request to "invoke the
rule".
- The Hearing Officer shall instruct each party and witness not to prompt
testimony and not to refer to previously undisclosed documents.
- Any party wishing to introduce a document for admission as an exhibit
for the record in a telephone hearing must, prior to the hearing, fax or
mail copies of the document to the Hearing Officer and the opposing party.
If such copies have not been received by the opposing party prior to the
hearing, and should a party, nevertheless, attempt to offer
the previously disclosed document during the hearing, the Hearing Officer
shall first determine the relevance of the document and then shall attempt
to have the document faxed to the other party, ask for a waiver, or postpone
the hearing.
If the hearing is not postponed and the document is not faxed, then the
Hearing Officer shall determine the length of the document. If the document
is three pages or less and relevant, the witness shall be instructed to
read the entire document into the record.
If the document is more than three pages and relevant, then the Hearing
Officer shall require the witness to read all relevant portions of the document
or shall postpone the hearing. In those situations where the document or
a portion of it was read into the record, then the Hearing Officer shall
instruct the party presenting the evidence to send within five calendar
days a copy of the entire document to the Hearing Officer and the other
party.
The Hearing Officer shall label all proposed exhibits and consider objections
regarding admissibility from any party. The Hearing Officer shall not consider
evidence not admitted and shall make all proffered evidence available for
Commission review. Any document read into the record shall be read in, or
contemporaneously translated into, a language that each party can understand.
- At an in-person hearing, a party may elect to have its primary representative
and/or one or more of its witnesses participate by telephone from some other
location. This will be permitted only if that party has at least one representative
present in-person with the Hearing Officer. This in-person representative
will have the responsibility for reviewing and possibly objecting to documents
introduced as exhibits for the record. It will not be required that such
in-person representative also perform the other functions of a hearing representative
such as the examination of witnesses, the making of closing arguments and
otherwise acting on behalf of the party.
These functions may be performed by a representative participating by telephone.
It will be the responsibility of the party representative appearing in-person
to be prepared to provide the Hearing Officer with the names and telephone
numbers of each witness who is to testify by telephone.
Also at an in-person hearing, testimony may be taken by telephone from
a witness who is a Commission employee or a disinterested witness (such
as an expert witness) who has been summoned on the Hearing Officer's initiative;
such witness will be deemed a Commission witness. An interpreter may also
participate by telephone in an in-person hearing.
An interpreter or a Commission witness, as described above, may be permitted,
at a telephone hearing, to give testimony or provide language services to
parties or witnesses while physically present with the Hearing Officer conducting
the hearing. However, parties or party witnesses will not be permitted to
be in the presence of the Hearing Officer during a telephone hearing unless
at least one representative of each party is present.
- Telephone Problems - The following provide some general
guidelines for handling telephone hearing problems. These guidelines are
not hard and fast rules and the Hearing Officer should always consult with
management if the Hearing Officer is uncertain about a situation.
- Cell Phone. When the Hearing Officer detects a party is using a
cellular phone, it is a good idea to ask if the party has a land line available.
If so, ask the party for the number and switch to it if possible. If not,
advise the party you will do the best you can and proceed. If it is the
appellant, tell that party it may result in the hearing not being completed
if the call drops and the call cannot be reconnected. If it is the non-appellant
or a non-party witness, advise that person if the call drops and you cannot
reconnect the call, you will have to finish the hearing without that person.
If you lose a party or participant on a cell phone during the hearing,
make a diligent effort to call that participant back and reconnect the call.
If you cannot reach the person and the disconnected party is the appellant,
do not issue a non-appearance decision. If the appellant calls back that
day, you may be able to reconvene the hearing and finish it. Otherwise,
you should continue the hearing and reset it. If the disconnected participant
is the non-appellant or a non-party witness, go ahead and finish the hearing
without that person and render the decision. Any phone problems should always
be promptly entered in Clear2There notes.
- Some parties will attempt to participate in a hearing while driving in
a car. The Hearing Officer should always request that the participant pull
off the road and park before proceeding. The person should be given a couple
of minutes to do so if necessary. In the interest of a fair hearing, a participant
needs to be able to give full attention to the proceeding without the distraction
of driving a car. In the event the particpant cannot or will not to pull
over, the Hearing Officer should proceed with the hearing.
- Cordless phone. Cordless phones can create problems as the signal
is not as strong and the recording is frequently not as clear. Also, some
parties have been lost during the hearing because the batteries were exhausted.
Whenever the Hearing Officer detects a cordless phone is being used, the
Hearing Officer should ask if the party has a corded phone available and
give the party an opportunity to switch to a corded phone. If the Hearing
Officer is unable to keep a party on the line due to failure of a cordless
phone, the situation should be handled in the same manner as a cellular
phone. Parties should be instructed to go to a TWC office or obtain access
to a better telephone if a hearing is continued due to phone problems. In
the event the party does not have a corded phone or cannot or will not switch
to a corded phone, the Hearing Officer should proceed with the hearing.
- Unable to reach a party. Sometimes a Hearing Officer is not able
to reach a party due to line busy, no answer, or party not available. If
the telphone circuits are busy, the Hearing Officer will hear a "fast
busy signal." The Hearing Officer should continue to try and contact
the party. The Hearing Officer should reset the hearing if the Hearing Officer
continues to get a "fast busy signal" after diligent efforts.
- In some cases, the person answering the phone tells the Hearing Officer
that the party is not available. The Hearing Officer should always clearly
identify themselves, the Hearing Officer's affiliation with the Texas Workforce
Commission, and the purpose of the call. The Hearing Officer should request
that the party be notified of the call. Any effort to contact a party who
is unreachable should be immediately documented in C2T. In the event the
party calls back to the 1-800 number, the receptionists can inform the caller
of your attempts to contact the caller.
The Hearing Officer should always wait several hours before issuing a decision
after situation where a party could not be reached. This gives that party
an opportunity to call us back. If the party calls us back and we learn
the party was not reached because of our error, then the case should be
reset.
- Speaker phone problems. Most speaker phones have one-way transmission,
and if the party speaks over the Hearing Officer, the party cannot hear
the Hearing Officer. The Hearing Officer may need to explain this to the
parties and rquest that they be careful not to start answering a question
before it is finished or talk at the same time as others. Also, the Hearing
officer is responsible for obtaining the best recording possible. Each witness
should be instructed to move up close to the speaker when each testifies.
- The guidelines stated in this section are intended for parties, not individual
witnesses. If a witness is not available by phone after repeated efforts,
the Hearing Officer normally should proceed without the witness. However,
if the opposing party presents a surprise issue, the Hearing Officer should
consider a continuance if the witness is not available. A party may decide
to present additional witnesses at any time during the hearing, and this
must be allowed. Even though prior arrangements might not have been made
for that witness to participate, the Hearing officer should make a good
faith effort to call the witness before moving on. Sometimes the names of
persons come up during the hearing who are not among the witnesses, but
could have significant testimony. Under these circumstances, the Hearing
Officer should take the initiative to ask the party if that witness is available
at that time to testify. The Hearing officer should not delay the hearing
exceesively to run down the witness. If the witness is not available, the
party should be asked whether the party tried to arrange for the witness'
participation and why the witness is not available. This information could
be important if there were a future request for a rehearing.
- In any hearing in which the threshold issue is timeliness of protest/appeal/petition
to reopen, the Hearing Officer may terminate the hearing upon the conclusion
of all testimony on the jurisdictional issue alone if he or she is certain
that the decision clearly required by the evidence in the record is that
of dismissing the appeal or petition to reopen for lack of jurisdiction
or affirming the determination that the employer had filed a late protest.
It is imperative that the special authority granted by this policy be judiciously
exercised.
- If the appellant alleges the timely filing of a protest/appeal/petition
which the TWC has never received, but does not offer corroborative testimony
of a disinterested party or physical evidence specifically linked to the
filing of the document in question, Commission Rule 32(f) requires a finding
of untimeliness. If you choose to exercise summary judgment in this situation,
be certain to check and make sure that the hearing notice properly apprised
the parties of the testimony/evidence which the Commission rule requires.
- Should anyone challenge your authority to render summary judgments as
discussed here, you should identify this Section of the Handbook as the
source of your authority in this area.
- Parties may be less likely to complain of what they may perceive as arbitrary
conduct, and you may save yourself some hearing time, if you have somewhat
prepared the ground by your order of proceeding. You should explain to the
party(ies) during your opening statement that you reserve the right to exercise
summary judgement if the evidence clearly indicates your lack of jurisdiction
due to an untimely protest, appeal or petition to reopen. Caution the party(ies)
that even though you may proceed to cover the underlying merits of the case,
you may ultimately conclude that the protest, appeal, or petition was untimely
and that you lack jurisdiction to rule on the underlying merits in your
decision.
- If at the close of all jurisdictional testimony and conceding the credibility
of all that the appellant or petitioner has testified to, the appellant's
appeal (or the petitioner's petition) should nonetheless be dismissed for
lack of jurisdiction, this is a clear-cut case for summary judgment. For
one example, if an employer-appellant testifies that the employer's appeal
was delayed in filing because the person who routinely handles such matters
was out of the office on vacation, the hearing should be terminated and
summary judgment rendered. Of course, any hearing of a jurisdictional issue
must address itself to proper mailing addresses.
The Hearing Officer should take care to consider all of the timeliness
rule exceptions incorporated in Commission Rule 32(i) prior to making summary
judgment. The Hearing Officer should not make summary judgment if the appeal
would be timely due to the deadline being tolled to the next business day.
"Optional Holidays" should not be treated as "state holidays"
for purposes of extending deadlines. However, skeleton crew days are considered
"Official Holidays" and the deadline would be tolled if it fell
on a skeleton crew day.
- The summary judgment authority described here will be among a Hearing
Officer's discretionary powers. No Hearing Officer will be required to exercise
such authority even in cases in which, from hindsight, it appears that summary
judgment should have been rendered.
- Summary judgment authority does not extend to good cause to reopen issues
under Commission Rule 16(5)(B) (see subchapter 318
of this handbook).
- The Hearing Officer also has authority to make summary judgment in work
separation cases where the ruling was made on an incorrect last employing
unit.
- Cases involving the threshold issue of good cause to reopen under Commission Rule 16 will be scheduled for a preliminary hearing on that issue alone. These hearings normally will be conducted by telephone.
- If the Hearing Officer's review of the testimony/evidence in the record on the good cause issue leads to a conclusion that there was good cause for non-appearance, the case should be set for further hearing by the same Hearing Officer on the merits of the underlying issues on appeal.
- Where good cause for the prior non-appearance is found and the case is reset, the Hearing Officer should wait until the underlying issue(s) has been heard and then rule on all issues, including the Rule 16 petition, in one decision.
- If the Hearing Officer's review of the evidence in the record from the single-issue good cause hearing leads to a conclusion of no good cause to reopen, the Hearing Officer should issue a written decision on that issue alone and no hearing on the underlying issue itself should be set.
- The term "single-issue" hearing will include cases in which there may be two issues, the timeliness of the petition to reopen and whether there was good cause to reopen. If there is an original timeliness issue involved, that issue should also be covered in the single-issue hearing. In effect, the object of the single-issue hearing is to adjudicate all jurisdictional issues before the underlying issue on appeal.
- Keep in mind that the parties to the underlying issue will also be parties to the threshold issue of good cause. Accordingly, the nonpetitioning party will be invited to the "single-issue" hearing on the petitioner's petition to reopen and will be entitled to present and examine witnesses, etc. However, as many nonpetitioners have an interest in the underlying issue only, and not the good cause issue as such, the new hearing notice will make it clear that, if good cause to reopen is found, a further hearing will be set to address the merits of the underlying issue(s).
- To promote the end of expeditiousness, the Hearing Officer should abbreviate his/her introductory remarks in such hearings. It will still be necessary to identify the case and Hearing Officer, the time and place of the hearing, and the appearances by the parties. The Rule 16 issue should also be briefly described. It will not be necessary to include introductory remarks regarding the underlying issues in the case nor to offer any detailed description of hearing procedure other than simply to state that both parties will have an opportunity to offer testimony and evidence or ask questions of witnesses during the hearing.
- The Hearing Officer should not announce the decision on the good cause issue at the conclusion of the special hearing on that issue. He or she should simply advise the parties that he/she will review the evidence in the record and if it is concluded that the petitioner did not have good cause for nonappearance, a written decision so ruling will be issued to the parties. On the other hand, if it is concluded that there was good cause for nonappearance, the next notice the parties will receive will be a notice of hearing for the hearing on the underlying issue in the case. In such a situation, the decision on the good cause issue will be included in the written decision ultimately issued by the Hearing Officer.
- When there has been more than one previous non-appearance, the Hearing Officer should address this problem differently depending on whether the case involves consecutive nonappearances by the present petitioner or alternating nonappearances by the parties. If the case involves consecutive nonappearances by the present petitioner, the written decision should address the cause for each such nonappearance, working backward in time from the most recent nonappearance, until the Hearing Officer encounters a nonappearance by the petitioner which is without good cause. If this occurs, the Hearing Officer should question the petitioner regarding earlier nonappearances but there will be no need to address the merits of any earlier nonappearance in the written denial decision.
If, on the other hand, the case involves alternating nonappearances by the parties, the Hearing Officer should address only the most recent nonappearance. As to the nonpetitioner's nonappearance immediately preceding the petitioner's most recent nonappearance, the Hearing Officer should regard the issue of good cause for that nonappearance as being a closed issue already ruled on by another Hearing Officer which will not be disturbed. The only exceptions to this latter directive will be instances in which (1) the petitioner specifically indicates a desire to challenge the prior reopening in the case based on firsthand testimony or evidence contradicting that previously offered by the other party as reflected in the earlier Hearing Officer's FINDINGS OF FACT on good cause or (2) the petitioner establishes that the prior ruling on good cause is directly contrary to a specific Commission precedent on good cause. There should be relatively few instances in which either of these occurs.
- There may be cases where good cause has been established, but the non-petitioner failed to appear at the single-issue good cause hearing and now wishes to contest the good cause ruling. The tape from the good cause hearing will not be replayed; however, the non-petitioning party may have a copy of that tape. It should be explained that good cause is not an issue at the present hearing, and that all issues will be addressed in the appeal decision. If the party disagrees with the decision, they may file for further review by the Commission.
- Good cause to reopen issues under Commission Rule 16(5)(B) are not subject to the exercise of summary judgment, described in subchapter 317 of this handbook.
- Discharge As A Result Of Cancellation Of Insurance.
Fact Pattern: Commercial Truck Driver discharged
when employer is notified by insurance carrier that claimant is no longer
insurable.
Law: Section 207.044
Precedents: see MC 490.20
what are the DOT regulations
was there a change in th |
