This checklist is aimed primarily at attorneys practicing in unemployment appeals litigation at any level (Lower Appeals, Board of Appeals, Judicial Review). Most of my remarks are aimed at workers’ attorneys, but some will apply to management attorneys as well.
All references to the “Act” below pertain to Title 8 of the Maryland Annotated Code, Labor and Employment Article.
1. Circuit Court Clerks Don’t Know About Unemployment Appeals.
Specifically, the clerks of court are frequently unaware that there are no filing fees, including fees for voluntary dismissals, for unemployment appeals (technically, petitions for judicial review) filed by claimants under section 8-5A-12 of the Act.
I don’t want to make any enemies anywhere, but one large Circuit Court has been particularly slow in handling UI Petitions for Judicial Review, to my frustration and that of opposing counsel at times. Both opposing counsel and I had to file documents multiple times just to get an entry of appearance or other documents properly processed. When I filed a dismissal citing clearly the statute that exempted my client from filing fees, I got a copy of my filing back demanding a filing fee. It took a nasty letter to get the Clerk’s office to read a one-page filing. Similarly, the Clerk took many months to issue the Rule 7-206 and 7-207 notice of the filing of the record and the running of the 30-day clock. In another case, the Clerk actually threatened me with collection proceedings for the waived filing fee in flagrant violation of Maryland law, until I got the elected clerk on the phone to make it stop.
In short, you should expect to have to do the Clerk’s job for them in these cases, and be grateful if you don’t have to do so. You should not expect the Clerk to know that the filing fees don’t apply, that they have to file your entry of appearance and that they have to send out notice of the record. If they do it correctly, excellent; but set your expectations level to “Taco Bell.”
2. Calendars and Deadlines Are On You (As Always) – Verify, Do Not Trust
This is aimed at attorneys who represent either management or workers. You should treat your client as unreliable regarding basic housekeeping information regarding unemployment appeals until you see it with your own eyes. There are a number of reasons for this: client learned helplessness, wishful thinking, low American literacy rates, etc.
If a client tells you in writing that the deadline for filing a UI appeal is such and such date, you should assume that the client is high, blind, dyslexic, illiterate or afflicted with borderline personality disorder and is giving you a malpractice trap until you see the data with your own eyes. Do not trust clients to read and report the content of a 9-point Benefits Determination or a 12-point hearing date notice or Lower Appeals Decision. Don’t trust them; make them show it to you and insist in writing that they show it to you. Of course if you have an appeal number or social security number you can usually confirm the status of a UI appeal online.
In general, a subpoena request in a UI Lower Appeals hearing must be fax-filed 5 full business days (i.e. more than one week, sometimes longer) before a hearing. A hearing notice goes out in theory at least 15 calendar days before the hearing. In order to get the subpoena request ready, you may wish to consider drafting them before you get the notice with everything except the location, date and time, then filling in the date and time upon notice and sending it out rapidly.
Of course, whether to send a subpoena request is a tricky tactical question in its own right but if the decision is to send one, you need to do so timely. It is particularly tricky for attorneys representing workers who are accused of misconduct, as management bears the proof burden and to send a subpoena in essence may help management prepare its file better in order to comply with your subpoena. Just as it’s not smart practice to interrupt your opponent when she’s making a mistake, it’s not good practice to send a helpful to-do list of useful documents to your opponent. On the other hand, sometimes a management document will be exculpatory for your worker client or damaging to management itself.
If you need a subpoena and you are too late to get one, you may not be too late for a postponement request (see below).
4. Postponement Requests
A postponement request needs to arrive at least three full business days before the hearing. A first and only postponement is usually granted without problems if filed promptly and with half-way reasonable stated grounds for the postponement.
After the postponement request, usually about 2-3 weeks after, a representative of the Lower Appeals Division will call requesting a faxed list of block-out dates for about a month from each party and counsel, and will set a date in harmony with those lists.
5. TALX and Other Non-Attorney Representatives
You should be aware that TALX consultants who occasionally represent management are generally not attorneys, though I have encountered one attorney through TALX. That attorney underwhelmed me with her late arrival to the hearing, her poor direct and cross examination and her embarrassing gaffe in attempting to admit, then withdrawing, an exhibit that severely damaged her own client’s case. I requested that the exhibit be admitted and then used it without mercy to prevail in the hearing.
Among the non-attorneys, the TALX representatives have ranged from pretty weak to exceptionally strong and prepared. I would like to commend Mr. Robert Sauer, who often represents the City of Baltimore for TALX; he has been consistently well-organized, professional and focused, such that I thought he was actually from the City Solicitor’s office and not TALX at first.
Outside of TALX, there are paralegals who represent management in UI hearings as well. Some of them have impressed me. Some need a mentor to tell them to take the chewing gum out of their mouth when addressing a Hearing Examiner on the clock. Some have had excellent, smooth hearing-room style and some sound like obnoxious, condescending hacks. I prefer the latter as my opponents’ representatives, obviously.
6. Waivers of UI Benefits Are Void and Criminal
This is a friendly CYA notice to friends who represent management. Under section 1303 of the Act (Code, LE § 8-1303) it is a crime, replete with a potential for jail, for an employer to accept or require from any worker a waiver of any benefit under the Act. The definition of “employer” includes any agent of an employer, including presumably legal counsel.
While I think that the likelihood of a prosecution of a management-side attorney for some sloppy but good faith violation of this section is pretty low, it carries more jail time than driving while impaired by alcohol and people do occasionally go to jail for that. The bigger concern is the professional embarrassment and, I suppose, Bar disciplinary consequences of this criminal act if it occurred in, say, the context of a negotiation for an employment settlement.
This is not precisely an unemployment appeals issue but one can easily imagine a scenario where management, knowing that a worker is seeking unemployment after a resignation under pressure (i.e. a quit but one with dubious “voluntariness” under the case law), might offer severance in consideration of dropping a UI appeal. No, this is dangerous. Severance does disqualify the worker from benefits during the pendency of the benefits, but asking for a waiver of UI benefits is arguably a “requirement” and receiving that illegal waiver back signed constitutes an “acceptance.” Crime completed, gotcha. Don’t do it.
7. What the Board Needs and Wants on an Appeal Request
Under the COMAR and statutes, the Board has the jurisdiction to do five things upon an appeal request: to decline it, to affirm the prior decision, to reverse the decision (in part or in whole), to remand the matter to Lower Appeals (generally due to technical problems with the electronic recording or, much more rarely, a radical failure of the Hearing Examiner to conduct a fair and impartial hearing) or to rehear the matter on the facts, on the law, or both.
My sisters and brothers in the Bar, do the math. The Board of Appeals has three members, two of whom must sit to hear a case in quorum. There are for state workers a little fewer than 250 working days a year (52 weeks minus vacation and holidays); we solos may be workaholics but state workers don’t have our particular form of brain damage. There are roughly 40,000 UI appeals a year, most of which have at least one “non-prevailing party” procedurally. What are the odds that your appeal will appear on their live docket? Not good, especially if you don’t make the case as to why your appeal merits their time.
The discretion of the Board to turn down any appeal is essentially unlimited. I suppose that if the Board failed radically to handle a year’s worth of appellate review in a working year, the General Assembly or the Secretary of DLLR might start thinking about firing some people or cutting budgets, but beyond nonsense scenarios like that there’s essentially nothing to force the Board to take your case. So if you file with the Board, the first thing you need to do is to convince the Board that your case represents something that fulfills their mission perfectly.
What will get the Board’s attention? Well I don’t have stats, but think it through. If the case presents novel legal or factual issues, represents a chance to clarify an ambiguous part of the corpus of precedent from the Board, involves major policy questions, involves more than one worker or is likely to be repeated in the future, involves a demonstrable and serious error by a Hearing Examiner or involves other “heavyweight” issues or concerns, it’s more worth the Board’s time.
Accordingly, when you file your appeal request, you should consider answering three questions:
- Why your case deserves the Board’s limited time
- Why you believe you are right
- Why you believe you didn’t get a more just (i.e. better for you) result below
As of today, I have only participated in one live hearing before the Board; in that case, the issue was a dispute of law, not of fact. Oral argument was swift and efficient and, as it happened, the Board saw fit to reverse the Lower Appeals decision and grant benefits to my client. I have not participated in a fact hearing before the Board to date.
8. Motions to Reopen
Several years ago, the Legal Aid Bureau in Baltimore and the Public Justice Center co-signed a letter to the Chief Hearing Examiner for the Unemployment Appeals Division, Judy G. Smylie, Esquire, citing alleged inequities between how employers and how claimants received treatment on Maryland unemployment procedural issues such as motions to reopen after a party fails to appear.
I have not perceived an inequity between how workers and how management get treated on motions to reopen. While I have not been pleased with every disposition of such matters in my practice, I haven’t seen a pattern of inequity. Generally, someone seeking to reopen a hearing needs to show reasonably robust cause as to why it should be reopened.
I do not have statistics but in general I have perceived that appellees fare a little better upon a motion to reopen, whether filing or opposing one. This would seem fair, since someone who has filed an appeal is on unambiguous notice that an appeal will take place, while an appellee may not find out in time or even at all, especially if the appellee is out of state or there is a “hiccup” with an address.
In my view, the URL of the appeals database search page deserves wide publication from the beginning of the UI benefits determination process, such that everyone is advised to check the database twice a week with the worker’s Social Security Number. While that may not be as easy for lower-wage workers who may not have a computer at home, it would reduce the total number of missed hearings. An email notice or text message or auto-voice mail message should alert workers and management of an appeal filing. While this might involve extra costs, reopening appeals is also expensive for the Lower Appeals Division in terms of admin and Examiner time on the clock.
9. The Gray Zone Between Quit and Fire
I have seen the following scenario many times in my practice. Worker is hourly, working irregular shifts. Management fails to put worker on the schedule. Worker concludes that she has no job and files for unemployment. Management treats the worker’s failure to keep checking in as a “walk off” quit or, in the alternative, as misconduct.
I do not like these scenarios. They seem not to end well in the hearing room.
10. Telephone Hearings
Three points on telephone hearings.
a) it is not ethical or permissible to communicate with your witness while he or she is testifying, without getting permission from the Hearing Examiner and giving your counterparties an opportunity to object. In general, you may not ethically communicate with your client regarding the subject matter of the testimony at that time anyway except perhaps to warn the client not to commit perjury. While the foregoing applies to telephone hearings as well as live hearings, in a telephone hearing you have to be your own ethics police in your own office.
b) you must get your documents in to the Lower Appeals Division ahead of time by fax if you are having an telephone hearing, at least one full week or as indicated on the hearing notice. You must send a copy to counterparty as well. I suggest faxing such documents at the same time to both the UI Division and to counterparty, and following up with a letter to each confirming that each got the documents.
c) the UI Division hasn’t found an elegant way to subpoena witnesses to a telephone hearing, and has proven bitterly resistant to converting a telephone hearing into a live hearing when live witness testimony by subpoena is requested. So far this has not caused any client of mine actual prejudice, but that’s by dumb luck. I hope that the next update of the rules provides for testimony by Skype for remote witnesses or even all witnesses under some conditions; Skype is free or cheap and allows for voice and video recording natively. On the other hand, the lack of access to computers among low-wage workers poses serious access-to-justice and due process concerns, for which I cannot foresee an elegant solution.