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March 30, 2013

                                                                              UNEMPLOYMENT COMPENSATION HEARINGS

Surely,  here is a place where the poor have legal help .  Guess again.   It is a disgrace.  Read on.  

                                                                                                    QUICK SUMMARY

9,000 – 12,000 unemployment hearings a year a held in Maine.  When benefits are denied them,  the poor ask for these hearings.  Their lives hang in the balance.   But, they seldom have an attorney at the hearing.

                                                                                               HERE ARE THE DETAILS             

Mary Jones worked at the Burlingham Linens until recently.   On a Tuesday at work she got into an argument  with another employee, and said something very sarcastic:   “You sure are pulling out all the stops today,” as the other employee was gazing around while Mary was stacking clothing for return.   The supervisor told Mary to go home, cool off, and take a few days off.  (It didn’t help that the other worker was the nephew of the store manager.)

  The next Monday when Mary had not heard from the store, she called.  The office clerk told her that her file was marked “abandoned her position.”  The supervisor repeated the same to  Mary and said that when she did not call in, she was deemed to have quit.  But, when she applied for unemployment compensation, she got it. The Deputy did not think she had intended to quit.   It saved her life, as she saw it, because without an income while she looked for another job at $12.00/hr, she surely would have lost her apartment and been on the street with her 5 year old son.  Or, she would have had to apply for welfare for her rent and food.   

She started getting weekly checks.   Weeks passed. Then, her employer appealed.  She was told that there would be a hearing on the telephone.  When it eventually occurred, Mary got a big surprise.  The employer said that they had expected her to call back the next day and any way she had been rude in her language before— twice.  This was not true, or, at least, it had not been pointed out to her before.  Burlingham said that a supervisor who was no longer with the company had noted the prior incidents in Mary’s personnel file.  (Mary had never seen these.)  This was a pattern of misconduct, said the emplolyer.  She was done, they said, any way.  She had quit by not showing up for work on Thursday.

The hearing officer ruled that she had not quit.  She had been fired.  But, she had been guilty of  “misconduct.”  She  would not get any more unemployment compensation, and would have to pay back the $3,780.00 she had already received.  Mary had not had a lawyer up to this point.  She tried to get one.  They told her that she could appeal to the three Commissioners, but she had already had her hearing on the facts and  it would be hard to win now.  And, it would  cost around $1,000.00.  She gave up.    What happened to her after this unknown.

                                                                                                Where is the legal help for Mary?


Many lawyer leaders say that there is help for people like Mary.  There are legal aid and “pro bono” lawyers who work to provide equal justice under law.  The aspirations of those committed to providing services in situations like this is worthy of praise, but the extent to which to which they  achieve this objective in usually stated in the number of hours they count as having been donated.  Often, the hours include mostly time spent advising the poor on the phone rather than attending hearings. 

So, it is important to ask: how many poor people actually end up with a lawyer who  go to bat for them at a real hearing?  This is more precise empirical evidence of how well equal justice is being provided.   The real practice is important.  These facts cannot be determined by knowing the number of unemployment compensation clients that  have been merely contacted by legal aid or pro bono attorneys or advised over the phone, which is the usual manner in which the  efforts of the bar are  usually conducted.

                                                                                                                   So, what really happens?

What really happens is this: the poor and working people are frequently denied unemployment compensation when they are really eligible for it because they are denied the means to make their case at hearings. 

Why is this important?  The  purpose of Congress in establishing unemployment compensation in the New Deal was  to “promptly relieve workers of the hardships of unemployment.” Or, as the State of Maine says:

         Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this State. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which may fall upon the unemployed worker, his family and the entire community. The achievement of social security requires protection against this greatest hazard of our economic life.  26 Maine Statutes sec. 1042

In other words, unemployment compensations  is a matter of the greatest importance for poor and working people.  If they are denied benefits, they are entitled to a formal hearing in front of what is called “The Division of Administrative Appeals.”  And, beyond that, they can appeal to the “Unemployment Commision, ” a body of three Commissioners, one to represrent labor, one to represent management, and a neutral.  All witnesses are under oath.  The evidence is recorded.  Hearsay evidence is not supposed to be permitted.  But, in spite of its importance,  lately the so called “hearings” are usually  done on the telephone.  The Department of Labor publishes an eleven page pamphlet entitled “How to Prepare for an Appeal Hearing.”  It accurately explains the several things that an experiened litigator would know: hearsay evidence,  supoenas, cross examination, providing and marking exhibits, etc.  It is far beyond the ability of most non-lawerys, especially persons who will be doing this for the first time.  Preparation for and presentation of a clear case on all the issues is a challenge.  An “Unemploymet Claim Checklist” used by the Greater Boston Legal Servies’ contains five pages of tasks for lawyers and paralegals to use to prepare for a hearing.  It is no place to be without a professional advocate.  Too much is at stake.

                                                          How many people  appear without an atttorney?

Very few working people in Maine  have attorneys at unemployment compensations hearings:

  •  12,400……………………unemployment hearings  held by Maine Unemployment Ins. Commision in a recent year
  •  1………………………….hearings covererd by Volunteer Lawyers Project in a recent year               
  •  4 ………………………… hearings covered by PTLA (estimated)                                                                           0 …………………………..Maine Equal Justice Partners

These are the figures for the first level of appeal.   The next level is to  the three Commissioners..  At these hearings the employees win  only about 10-15% of the time.  Employers win about 66% of the times when they appeal.   Employers are frequently represented by attorneys,  often from out-of-state corporate offiices.  Employees are seldom represented.  This final  appeal does not usually involve a personal appearance before the Commissioners, but is done in writing, a method of appeal even more challenging than speaking.   However, the Commissioners may grant a personal appearance,  and they always do when there is an attorney asking for it.   Trouble is:  since poor people are seldom represented by an attorney, the almost never get to appear personnally before the Commissioners who make the final decision.  Courts for the rich.  Courts for the poor.

                                                           Does an employee really need to have an attorney?

Yes.  Unemployment law is complicated.  If a company has a big lay-off or if a mill closes, it is clear that everyone gets unemployment compensation.   In other cases it is not so simple.   This is true when an individual employee is fired or quits.    Look at Mary Jones’s case described above.  There are three legal standards to apply.

  • If she should have known that she was only suspended for two days,  and did not report to work when she should have,   she could be found to have “voluntarily quit.”    If she falls into this category, she is not eligible unless there was “good cause” for her having quit.  There is a six page regulation on what facts fit the “good cause”  reason.   The hearing office can  base his/ her decision on any section of that regulation.  A lawyer at minumum would have to read the regualation,  interrogate Ms. Jones, analyze all the facts, and determine if any section of the regulation could be proven.  And then prove it!  With good witnesses.
  • If the hearing office concludes that she did not quit, but was fired, then she is still eligible for compensation unless what she did equalled “misconduct” as that term is defined.  That word, too,  has a very long definition and many example in the statute.   The lawyer must do the same thing here: interview, analyze, martial evidence, get subpoenas, cross-examine, persude, etc.
  • If she loses the hearing,  then she has to pay the $3,780.00 back unless she received it through no fault of her own and if paying it back would cause a hardship.  There is a regulation on this too.

                                                                            Why this ain’t equal justice under law.

  1. The example given above of Mary Jones is a  frequent occurence.
  2. The State has made the rules that make the matter complicated.
  3. The State has made the hearing adversarial,  placing the employee at a distinct disadvantage.
  4. The employee’s basic necessities of life hang in the balance.

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