UNEMPLOYMENT, WHY YOU MAY WANT TO SIT IN AS WORKERS' COMPENSATION LAWYER

by Marlon D. Mormann on Dec. 30, 2019

Employment Employment Discrimination Employment  Workers' Compensation Employment  Wrongful Termination 

Summary: Seminar detailing pitfalls and helpful tools that come from a workers' compensation case that parallels an unemployment case.

About the Author:

MARLON MORMANN, aljmormann@gmail.com, 515 710 0902

Marlon. Mormann attained his Juris Doctorate at the University of Nebraska College of Law-Lincoln, 1983. He has a BS degree in Animal Science from the University of Nebraska College of Agriculture, 1979. In 1984 was admitted to practice law in the states of Nebraska and Iowa. Mr. Mormann began his legal career in 1984 as an associate attorney practicing primarily in general insurance defense litigation. He spent time at the Pottawattamie County Public Defender office and as a Senior Litigation Attorney for a fortune 500 company.  In 1990, Mr. Mormann was hired by the State of Iowa first in Workers’ Compensation as a Deputy Workers’ Compensation Commissioner hearing and deciding litigated workers’ compensation cases. In 1991 he became an Administrative Law Judge in the Unemployment Insurance Appeals Bureau. He has served twice as a Deputy Workers’ Compensation Commissioner and twice as an Administrative Law Judge for the Unemployment Appeals Bureau. He retired from State employment January 5, 2015.

UNEMPLOYMENT, WHY YOU MAY WANT TO SIT IN AS WORKERS' COMPENSATION LAWYER

The Process:

  1. Filing is now accomplished over the internet.  Do not expect one on one help by going to a workforce office.  It is best to advise a non computer literate client to get help from computer and internet savvy friend or relative.  Keep in mind that an unemployment claim requires regular reporting on job searches. Always tell your client to to read the 15 page Facts for Workers Handbook  found at: http://www.iowaworkforce.org/ui/claimants/70-6200factsforworkers.pdf

If the worker fails to report a claim for even one week the process starts over with a re file requiring the same steps. This claim is good for one year. At the expiration of one year the claim must be refilled.

  1. After filing a notice of claim is generated to the employer.  There is a ten day period for employer to protest the application for unemployment.  Employer must certify the information on the protest as correct by a signature.  It is prudent to ask the fact finder if the employer signed the notice of claim. If no signature, argue that the protest is not valid and timely.
  2. A fact finding interview (this is not a hearing) is then conducted. The fact finding interview is 20 minutes.  There are many fact finders and technique is varied.  Advise your client that they may not get a chance to tell their story nor be treated with respect. Advise your client of the issue at fact finding.  The issue is not always about why the separation occurred.  There are hundreds of issues. It is necessary to read the fact finding notice carefully to discern the exact issue noticed.  Note that fact finding hearings are not recorded and testimony is not under oath. ALJ’s do not like references to sworn testimony at fact finding. This is an interview not a due process hearing.  Advise your client to record the interview with notice to all participants. The attorney can sit in but will not be allowed to speak.
  3.  Participation at fact finding by a lawyer is discretionary. Remember the fact finder does most of the questioning.  This is an inquisitorial system. Exhibits are allowed. More than a few pages is not prudent. They will not be examined by the fact finder. Underline or star pertinent portions of your exhibits. Do not highlight as it often damages reading quality due to imaging technology. The best preparation is to coach the claimant on the issue or issues presented prior to hearing. Make certain the claimant has exhibits in hand. Make certain claimant reads the entire interview notice. Lawyer participation is discretionary. Point out the emphasized areas of exhibits.  Understand that in 20 minutes the fact finder must do the hearing and issue a decision so exhibits are rarely reviewed in detail unless they are referenced by claimant.  The lawyer’s participation is best utilized by explaining the relevance of exhibits if allowed by the fact finder.  Record the interview with proper notice to participants.
  4. Unemployment appeal hearings are generated from a fact finding decision.  It is called and ANDS decision which stands for an archaic term, “automated numeric data system.” Read the entire fact finding decision. Note appeal date. Document the appeal date carefully. If the appeal is filed by fax always print fax send report.  Always follow up with hard copy. The appeal procedure changes and includes online appeals. http://www.iowaworkforcedevelopment.gov/ui-appeal   It is imperative that documentation be kept of the date and time the appeal was filed.  Filing date is the date faxed or mailed. The rules indicate that the basis of the appeal must be stated. In practice a simple statement: “I appeal” is sufficient.  A copy of the fact finding decision with the appeal request is often easiest as it shows the intake personnel the exact decision being appealed.  If the fact finding arrives late in the mail the appeal should be filed within one business day. Document the delayed receipt date in the appeal letter. For example, “I received this decision in the mail yesterday. It arrived late due to a change in address. I wish to appeal because I disagree with the decision. “ 871 IAC 26.4(2,5)
  5. In person hearings do not provide a better result in all cases. In most circumstances an in person hearing is neutral or detrimental to claimant.  The in person hearing delays the process.  Claimant’s often get a new job before the hearing can be held and do not want to take a day off work.  Ask for in person hearing only if you have good reasons.  If your client has trouble hearing over the telephone you should always request an in person hearing.  There are many good reasons for in person hearings that allow tactical advantages. Requesting in person hearings as a default is ill advised and not in the best interest of claimant’s in most situations.  The ALJ has discretion to allow participation by telephone if at least one in person witness is present. 871 IAC 26.6(3,4)
  6. Telephone hearings require registration of the claimant, witnesses and lawyer’s telephone number. Sending a letter to the appeals bureau is not sufficient to register a telephone number for hearing.
  7. All calls from an ALJ are recorded on an automatic telephone system where recordings cannot be deleted. Tell your client that every call to and from the appeals bureau is probably recorded. However if calling the IWD help line the claimant should always record calls as the advice is often wrong.
  8. Read the unemployment appeals bureau hearing notice.  It is probably not the same notice you received last week. This document changes frequently with telephone numbers, procedure and technology.  Read the notice on the day of receipt and follow the instructions to the letter. Failure to follow the instructions on the hearing notice may result in exclusion from the hearing.
  9. A good practice for telephone hearings is to have the client come to the lawyer’s office for the hearing. Using one speaker telephone makes the hearing go faster and allows confidential communication during the hearing.

 

  1.  Non lawyers may represent claimants and employers in unemployment hearings in the state of Iowa. If someone sits in for a claimant it should be preceded by 3 days written notice. 871 IAC 26.6(7,8) Unemployment appeal hearings are public record.  Any documents offered at hearing are public record.  There is some recent dispute over what constitutes a public record.  The employment appeal board is of the opinion that all fact finding documents are part of the record even of not offered at the appeal hearing.  The correct result is that nothing is public record until it is entered as an exhibit.
  2. Read the back side of the hearing notice. It has almost everything necessary concerning pre hearing procedure, discovery.  Failure to read the back side of the hearing notice is imprudent.  This is probably the most important thing any lawyer can do to prepare for a hearing. Do not accept an unemployment case if you are unwilling to read the back side of the hearing notice.
  3. Recognize that the claimant almost always knows the facts better than the representing attorney. Some claimant’s do just fine at hearing and are better off without a lawyer. Some claimant’s know the facts better but are scared to death of an authority figure and cannot communicate very well.  Differentiate those clients. If your client is hyper nervous, lawyer representation is advised. It may work better for counsel to go to the claimant’s home and do the hearing in a safe environment.
  4. For an unemployment appeal hearing before an ALJ expect a call within five minutes of the start time. If not called in five minutes you must call the appeals bureau or face a default against the appellant. 871 IAC 26.14-(6, 7)
  5. Request a copy of the fact finding record. It will have all documents offered at fact finding and a written record of the fact finder’s recollection of the interview. Again, it is not recorded and not under

oath.

16. Failure to make discovery may result in sanctions. If a party fails   provide records as requested the ALJ has discretion to dismiss the appeal of appellant or prohibit participation. 871 IAC 26.9(8)

17. Sealed records are necessary in certain cases which have confidential information. Certain types of abuse cases and DOT drug test cases must be sealed. If you have records protected by HIPPA be certain to redact the names of non party persons identified. Always redact social security numbers.

18. Link to Unemployment Appeals FAQ: http://www.iowaworkforce.org/ui/appeals/faqs.htm

Selected Issues Outline: http://www.iowaworkforce.org/ui/appeals/selectissues.htm

Unemployment terms: http://www.iowaworkforce.org/ui/file4.htm

In person 2015 hearing schedule: http://www.iowaworkforce.org/ui/hearing.htm

Chapter 871 IAC: https://www.legis.iowa.gov/docs/ACO/agency/01-07-2015.871.pdf

Appeal decision data base: http://decisions.iowaworkforce.org/ui/Pages/default.aspx

Register telephone numbers for Appeal Hearings: https://ia.c2tinc.com/register/

19. A. Unemployment Insurance hearings before ALJs from Workforce Development or the Division of Administrative Hearings are contested case proceedings pursuant to Chapter 17A.

B. The rules of evidence are found in Section 17A.14(1).

1. Irrelevant, immaterial or unduly repetitious evidence "should" be excluded.

2. There is not residuum rule. All evidence may be hearsay.

3. In evaluating hearsay, the ALJ should conduct a common sense evaluation of:

a. the nature of the hearsay,

b. the availability of better evidence,

c. the cost of acquiring better evidence,

d. the need for precision and

e. the administrative policy to be fulfilled. Schmitz v. Iowa Department of Human Services, 461 N.W.2d 603, 607 (Iowa App. 1990).

4. Hearsay evidence, even though admissible, is often not the best evidence. If possible, have witnesses who have first-hand information participate in the hearings, especially where the burden of proof is on your client.

20. Discovery rules are found at 871 IAC 26.9.

 

 

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