Appendix H: Greater Boston Legal Services Unemployment Claim Checklist

Transcription

1 Appendix H: Greater Boston Legal Services Unemployment Claim Checklist PREPARATION FOR UNEMPLOYMENT INSURANCE (UI) HEARING (A "CHECKLIST MANIFESTO") 1. Initial client meeting. a. Interview client'. b. Client retainer and authorization form (including student) signed. c. A limited or full release for DUA 2 signed. d. A HIPPA compliant medical release 3 signed, if necessary. d. Authorization for release of personnel records signed. e. Collect documents from client: All notices or decisions from DUA (note: each disqualification or denial requires a separate timely appeal to preserve rights). Any letters, statements, or warnings from employer. Medical documents, if relevant. Pay stubs, if relevant. Union contract, if applicable. Employment contract, if applicable. ' We suggest at least 3 client interviews for fact-gathering and hearing preparation. Please be sensitive to potential problems of transportation costs (and reimburse or provide Charlie cards). The first interview serves as an introduction and should include open-ended questions to obtain as much information as possible about the place of work and what happened. It is critical that you build trust at this meeting so that the client understands that he/she should tell you everything --- especially "bad facts," and the client has a chance to vent. You will need to explain the limited purpose of a UI Hearing (it is not a wrongful termination or discrimination case). The second meeting, occurring after you have developed the theory of the case and reviewed documents, can be much more focused with more closed questioning. The third meeting allows you to do a mock direct (to prepare for both the questions by the review examiner and by you) and have someone else do a mock cross of your client (to prepare for the employer's questions). Some clients will require yet another meeting to feel prepared and confident. GBLS uses two different releases; a limited release for purposes of evaluating the merits of a case or providing advice and counsel for pro se claimants; and full release for full representation cases. Note: DUA requires an attorney's signature and BBO# for claimant document requests if the claimant is not present. The form of the medical release may be dictated by the medical provider. Be sure to check with the medical practice, hospital or other treatment facility before sending a signed medical release. 1

2 Employer rule book or handbook, if applicable. f. Ask client whether employer provided DUA-approved information on the right to file for UI (if not, or other good cause for delay, can predate if necessary - see G.L. c. 151A, 62A). Inform client of job search and reemployment seminar requirements (emphasizing weekly certification requirement and need to keep a work search log of at least 3 contacts a week). Clients must certify job search efforts weekly to preserve UI benefits for weeks claimed while an appeal is pending even when the client's claim has been initially denied and she is receiving no UI benefits; obtaining retroactive UI may not be possible without such efforts and records. h. Inform client of potential availability of extended UI while participating in training under GI. c. 151A, 30 (the Training Opportunities Program). Be sure to inform the client that up to 26 weeks of extended UI benefits are available only if client applies within 1 st 20 weeks of a new or approved claim and the possibility that there may be available funds to pay for a training program. For more information about training programs and funding for these programs, refer client to One-Stop Career Center. Note: the client must apply for the extended UI benefits with DUA i. Check for eligibility for other programs (e.g., TAFDC (welfare), Foodstamps ("SNAP") (see Fuel Assistance, etc.). This is especially important if this is the claimant's appeal and she is not receiving UI. If the client has little or no other income, s/he may be eligible for a variety of programs. You may want to consult a welfare advocate to explore all possibilities of income maximization, including subsidized child care. For advice, use the Legal Resource Finder, The LRF provides contact information for legal aid and other programs that may be able to help for free or at a low cost. It will also provide links to legal information and self-help materials. j. Inform client of potential eligibility for earned income credit. (Call TAX-1040.) 2

3 2. Review Hearing file. a. Bring client's signed release form and client's DUA claimant ID# orthe last four digits of client's SSN to the DUA hearings department to obtain a copy of client's DUA appeal folder (you will need a picture ID to get into DUA). b. Review all documents from the DUA file. Review all of these documents with client --- especially claimant and employer statements. c. Check for timeliness of employer's response. Note: If client uses UI Online, you can access files online at interview with client who will need to use his/her SSN and password to gain access. It is not a good practice to obtain the client's DUA password. It is helpful to be able to access the client's online account in the client's presence to ascertain all outstanding issues. d. If client uses UI online and has a telephone hearing, the DUA appeal folder should be available on line in advance of the hearing, otherwise you will need to check the hard copy file available through the hearings deparement. 3. Obtain other documents. a. The claimant's personnel records from the employer 4 * b. Subpoena documents, telephone records or video surveillance for hearing, if necessary * 4. (Legal services/students - prepare opening file memorandum for supervisor.) 5. Prepare legal research memorandum. 4 it is a strategic decision whether to seek a copy of the claimant's employment record or subpoena documents to a hearing. On the plus side, this information will provide you with information that may be relevant to the claimant's case. The downside is that such a request tips off the employer that the claimant is likely to be represented at the hearing and the employer may come to the hearing better prepared than s/he may otherwise. Of course, your client may obtain the personnel file.

4 6. Contact and interview potential witnesses. a. Prepare affidavits for witness to sign under penalty of perjury if witness cannot attend hearing. b. Subpoena witness to compel attendance at hearing, if necessary and strategically wise. 7. Hearing preparation. a. Review administrative hearing rules (801 C.M.R. 1.02). b. Review relevant area of law (including UI Advocacy Guide, UI Statute, Regulations, Service Rep. Handbook, and Unemployment Insurance Policy and Performance memos) b. Prepare direct examinations of client and witnesses. 5 The claimant, and claimant's witnesses, should be told that when answering questions by review examiner and when under cross-examination, s/he should only answer the question being asked, not to add unnecessary detail, not to guess or answer a question that she/he doesn't understand, and of course, to always tell the truth which is what she/he directly saw, heard etc. Reassure your client that you will make sure that you will get ask him or her questions to get all of the relevant information favorable to her or his case into the record. c. Review hearing procedures with client and witnesses, and role-play direct examination by review examiner and advocate and cross-examination of client by employer. d. Prepare cross examination of employer's potential witnesses. 5 5 Take sufficient time to think through and draft the direct and cross. Your client's direct is the heart of the case and requires careful attention. For an excellent resource on developing the theory of your case as well as the direct and cross-examination, see Thomas Mauet, Trial Techniques, Aspen Publishers. 6 Unless you are fairly certain of a witness' answer or likely answer, be careful to avoid asking questions that may elicit answers harmful to your client's case. This is especially the case where the employer bears the burden of proof and may not have introduced the evidence necessary to satisfy that burden. 4

5 e. Prepare proposed findings of facts and rulings of law. f. Review appeal folder. Organize exhibits for offering into evidence (brinc g. Prepare brief closing statement (no more than a couple of minutes). 8. Hearing. a. Bring picture ID and remind your client to bring a picture 1D. Go to hearing early due to delay passing through security. Note: you can be defaulted if you are 10 minutes late! Bring a pad of paper for your client to write notes and request a brief recess if necessary. Review DUA's copy of the appeal folder at DUA. Check for any changes or additions since your initial review. b. If this is an interpreter-assisted hearing, arrive early to review the hearing department file with your client and the interpreter. This is a good way to assess the interpreter's skills, get your client and the interpreter used to each other, and to familiarize the interpreter with the issues at the hearing in a way that does not compromise her impartiality..also, impress upon your client that this is her hearing, that she is entitled to a qualified interpreter, and that she should speak up if she cannot understand something during the hearing, 9. Favorable Hearing Decision from DUA. If hearing decision is favorable to claimant, inform the claimant that the employer has 30 days to file an appeal and s/he should contact you immediately if s/he is notified of an appeal. This is also a good time to remind your client of the availability of extended UI training benefits if she applies within 21 weeks the 20 week application deadline starts running one week after a favorable decision reversing a denial of Ul. 10. Unfavorable Hearing Decision. If the hearing decision is unfavorable to the claimant, after evaluating the merits of an appeal, file an application for review with the DUA Board of Review (BOR) within 30 days after the mailing date of an adverse hearing decision. The BOR appeal request

6 form accompanies the hearing decision. If not available, go to the BOR website and download the form. a. Review CD of prior hearing (free for legal services clients). b. Prepare memorandum in support of application for review. c. BOR rarely grants a new hearing, if so repeat steps 6-8. The BOR sometimes sends the case back to the review examiner for specific, additional findings of fact. Review the BOR decision and direction to the review examiner carefully and prepare the client accordingly. NOTE: We encourage advocates to file appeals to the Board of Review or to urge their clients to do so. An appeal must be filed timely. It is best practice to file a memorandum of law with the appeal. If absolutely necessary the Board upon request will grant an additional five days to submit a memo (but the appeal itself must be timely filed). Whether or not a memorandum is filed with the appeal, the BOR will review the hearing CD and all the exhibits. Keep the memo short and to the point without repeating the statement of facts outlined in the hearing decision. 11. If the BOR denies the application for review within 21 days, you must file a complaint for judicial review in District Court within 30 days after the mailing date on the BOR's decision. If the BOR does not take action within 21 days of filing, the application for review is deemed denied, and you must file a petition for judicial review within 30 days (51 days from date of filing application for review). a. File the complaint in the District Court with jurisdiction. Serve a copy of the complaint on DUA and on the employer by certified mail, return receipt requested within 7 days of filing in court. Although not required by statute, some courts require the enclosure of a summons as well. b. Answer is due within 28 days of service (Note: DUA is often late in filing hearing transcript so call DUA Legal Department to expedite transcript). Send court a copy of the return receipt proving service on DUA and the employer with cover letter explaining service under G.L. c. 151A, 42. 6

7 c. Call opposing DUA counsel, get agreed date and mark up for hearing giving notice to both DUA and employer. If the employer is represented by counsel, also reach agreement with the employer's counsel on the agreed date. d. If employer appeals, DUA will usually defend the Board's decision awarding your client benefits. However, it is helpful to your client if you enter an appearance as well and work with the DUA Lawyer assigned to the case (be sure and file your answer within the 28 days as this requirement is statutory). e. Prepare for court hearing, including a short brief (aim for 10 pages). f. Please let Brian Reichart, Mass Law Reform Institute know about the outcome of your case if you get a decision by the Board or Court. if the decision is a Board decision, send a redacted copy of the decision. These decisions will be posted at Brian at breichartamiri.orq. Thank you! 7