Unemployment Insurance Appeal Board
Statutory Authority: 19 Delaware Code, Section 3321(a) (19 Del.C. §3321(a))
Unemployment Insurance Appeal Board Regulations
PLEASE TAKE NOTICE, pursuant to 29 Del.C. Chapter 101 and 19 Del.C. Section 3321(a), the Delaware Unemployment Insurance Appeal Board (“Board”) proposes to revise its rules and regulations. The proposed revisions set forth procedural requirements which apply to appeals and hearings before the Board.
A public hearing will be held on the proposed Rules and Regulations on Wednesday, December 4, 2002 at 9:00 a.m. in the First Floor Appeals Hearing Room at the Department of Labor, 4425 N. Market Street, Wilmington, DE 19809. The Board will receive and consider input in writing from any person on the proposed Rules and Regulations. Any written comments should be submitted to the Board in care of Helen McClure at the above address. The final date to submit written comments shall be at the above scheduled public hearing. Anyone wishing to obtain a copy of the proposed Rules and Regulations or to make comments at the public hearing should notify Helen McClure at the above address or by calling (302) 761-8370.
This notice will be published in two newspapers of general circulation not less than twenty (20) days prior to the date of the hearing.
STATE OF DELAWARE RULES AND REGULATIONS
under Part III, Title 19, Delaware Code
Unemployment Compensation
November, 1979
Administered By
Unemployment Insurance Appeal Board
801 West Street, Wilmington, Delaware
UNEMPLOYMENT INSURANCE APPEAL BOARD
STATE OF DELAWARE
RULES AND REGULATIONS
A. REQUEST FOR CONTINUANCES
No continuance, postponement, or rescheduling of any hearing shall be granted unless application is made to the Board secretary six days prior to the scheduled date of hearing. Any other request made after six days prior to the date of hearing shall be made directly to the Board Chairman. In such case, a postponement for rescheduling shall be granted only for emergency circumstances such as death in the family or serious illness.
B. HEARINGS
Appeals to the Board will be heard upon the evidence in the record based upon the record before the Appeals Referee. However, the Board may direct the taking of testimony in addition to that contained in the record of the Referee's hearing and, in its discretion, allow any interested party to offer additional evidence.
The Board shall inquire fully into the facts of the particular case and shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may be heard and determined, although not expressly ruled upon or indicated as being dealt with at the hearing before the Appeals Referee, if the speedy administration of justice, without prejudice to any party, will be substantially served. The Board of Appeals shall have the power to call, examine and cross-examine a witness and to request documentary evidence be admitted into the record. All parties to the hearing shall be given the opportunity to cross-examine witnesses, introduce documents and inspect documents.
Upon request of any party, the Board may grant limited oral argument, neither the facts that should be found nor the application of legal principles to the facts. The Board may permit the filing of written briefs by the parties, in their discretion if they deem that would be beneficial to the disposition of the appeal.
The hearing, unless otherwise ordered by the Board, shall be conducted informally, but in such manner to ascertain the substantial rights of all parties. The statutory and common law rules of evidence shall apply with the exception that the Board shall receive and consider medical and hospital reports and statements from duly licensed physicians appearing on hospital or physician's stationery or Department of Labor medical request forms.
All parties are required to be present for a hearing at the scheduled time. Any party who is not present within 10 minutes after the scheduled time for hearing shall be deemed to waive his right to participate in said hearing and the hearing shall conmence without the presence of said party.
Members of the Appeal Board may not participate in the hearing of any appeal in which he has an interest or feels that, due to friendship with any participant or witness, he may not be able to objectively determine the evidence and apply the law. In such case, the Board member shall disqualify himself.
Three members of the Board shall constitute a quortun thereof for the purpose of any hearing.
The Board may sever an appeal or may consolidate two or more appeals where the interest of justice will be served and where there will be no prejudice to the substantial rights of any party.
C. APPEALS FROM DISMISSALS BY APPEAL REFEREE
In any case where a party's appeal is dismissed by the Appeals Referee for the failure of that party to appear at the scheduled hearing by the Appeals Referee, the Board shall consider the reason for the absence of the party at the scheduled hearing before the Appeals Referee. If the Board is satisfied from the explanation offered by the absent party, the Board shall remand the case to the
Appeals Referee for a full and complete hearing on the records. The remanded case shall be placed upon the calendar by the Appeals Referee for prompt hearing.
D. REMANDS
The Board may remand any case to the Appeals Referee for any purpose that it may direct.
E. APPEALS INVOLVING EMPLOYER'S LIABILITY
When an employer wishes to protest a determination by the administrative staff of the Division of Unemployment Insurance concerning the charge to its experienced rating account or the requirement that it reimburse the Unemployment Insurance Fund, the employer shall, within 15 days after the mailing of notice of determination by the Division of Unemployment Insurance, file with the Appeal Board a protest specifying its objections to the determination and requesting a hearing on it.
A communication, in writing, filed with the Appeal Board within the time specified above, shall be considered a valid appeal if the following requirements are met.
1. The conmumication sets forth the protest.
2. The camiumication makes application for hearing.
3. The communication contains substantially the following information:
(a) The date of the protest for appeal;
(b) The name, address and employer account number of the employer; and
(c) A concise statement of the reasons for the protest or objection to the determination signed by the employer, his agent or attorney.
At the hearing to determine the liability of the employer, the administrative staff of ;.he Division of Unemployment Insurance shall be notified to attend and shall have the burden of showing the reason for the liability of the employer.
F. REPRESENTATION
At any hearing, the claimant may appear and be represented by an attorney-at-law, a union representative, or such other person as he wishes to represent him. An employer, if he desires representation, may be represented by an attorney-at-law duly admitted to practice in the State of Delaware.
The Board may designate, to its Attorney, the authority to assist them in the conduct of the hearing and grant their Attorney the right to ask such questions of any party as he deems appropriate to assist the Board in their determinations.
On its own motion, or on application duly made to it, the Board may, within 10 days following their decision, direct a rehearing on one or more issues involved in the appeal. Said rehearing shall be conducted in the manner described in these rules and regulations.
G. DECISION
The Board shall render its decisions promptly. The Board may affirm or reverse, wholly or in part. In addition, the Board may modify the appealed decision or determination as may be necessary. The decision of the Board shall be accompanied by a notice of the right to appeal therefrom to the Superior Court of the State of Delaware within 10 days after the decision has become final.
APPROVED BY
Harold P. Minner, Chairman
Emilie E. Tugen , Member
W. Allen Jones, Member
Dr. Jack E. Robinson, Member
Frank J. Carello, Member
Proposed Rules And Regulations
Of The Unemployment Insurance Appeal Board
1.0 Definitions.
As used in these Rules and Regulations, the following definitions shall apply:
1.1 “Board” shall mean the Unemployment Insurance Appeal Board.
1.2 “Chairman” shall mean the Chairman of the Board.
1.3 “Hearing Officer” shall mean the Appeals Referee or his or her designate who heard the initial appeal.
1.4 “Hearsay evidence” shall be such evidence so designated by the Delaware Rules of Evidence (D.R.E.).
1.5 “Relevant evidence” shall mean evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without this evidence, as set forth in D.R.E. 401.
2.0 Location of Unemployment Insurance Appeal Board.
2.1 All correspondence or other papers or documents filed with the Board shall be filed, either by mail or by hand delivery, at the following address: Unemployment Insurance Appeal Board, Department of Labor, 4425 North Market Street, Wilmington, DE 19802. The Board phone number is (302) 761-8370 and the Board’s fax number is (302) 761-6635.
2.2 Notices of Appeal to the Board may be filed, by mail or personal delivery, at any local Unemployment Office or at the Board Office listed at Rule 2.1. All notices of Appeal must be in writing.
3.0 Commencement. A hearing before the Board may be initiated by:
3.1 Either party to the action heard by the Hearing Officer upon filing a timely Notice of Appeal with the Board;
3.2 A party whose appeal was dismissed by the Hearing Officer for failure of that party to appear at the scheduled hearing before the Hearing Officer, upon filing of a timely Notice of Appeal with the Board, in which case the Board may, at its sole discretion, remand the case to the Hearing Officer for a prompt hearing to make a full and complete record; or
3.3 The Board sua sponte with notice to the parties below or their counsel.
4.0 Hearings.
4.1 Purpose. The purpose of a hearing before the Board is to examine the factual and legal bases for the decision rendered by the Hearing Officer. The parties shall not re-litigate the case presented to the Referee, but may present additional evidence. Both the referee’s record and any new evidence presented to the Board shall be considered by the Board in making its decision.
4.2 Presence of parties required. All parties to the appeal shall be present at the Board’s hearing. Failure to appear within 10 minutes of the time indicated on the Notice may result in the Board hearing the appeal in absence of the delinquent party or, if the delinquent party is the appellant, dismissal of the appeal.
4.3 Representation.
4.3.1 At any hearing, a party may appear pro se or be represented by an attorney-at-law duly admitted to practice law in the State of Delaware. A corporation or other artificial entity desiring legal representation must be represented by an attorney-at-law duly admitted to practice law in the State of Delaware.
4.3.2 The Board or its attorney may examine any witnesses, and move the admissions of documents and things into evidence.
4.4 Continuances and Postponements.
4.4.1 Applications for a continuance or postponement of any hearing shall be made in writing to the Board office no later than 6 days prior to the hearing. The request shall state the reasons for which the continuance or postponement is requested. The grant or denial of any request for continuance or postponement is within the discretion of the Board Chairman or his or her designee.
4.4.2 Applications for any continuance or postponement of any hearing made less than 6 days prior to the hearing shall set forth with specificity the reason(s) for the continuance or postponement, and shall typically be granted only for reasons of unanticipated emergencies.
4.4.3 An appealing party may request to withdraw it appeal at any time prior to hearing. All requests for withdrawal must be made in writing.
4.5 Length of hearing. Hearings are scheduled to last 20 minutes from the time the presiding member calls the case, except that the Board may extend the length of the hearing at its discretion.
4.6 Record. A record shall be made of all hearings before the Board. The record may be made either by a stenographic record or by audio recording. The record does not need to be transcribed unless and until an appeal is taken to Superior Court from the Board’s decision.
4.7 Evidence.
4.7.1 The Board follows the Delaware Rules of Evidence. The Board may admit and consider hearsay evidence, however, the Board shall not base its decision solely on hearsay or other evidence not admissible under the Rules of Evidence.
4.7.2 The Board may consider any relevant evidence relating to any issue raised below, whether or not that issue was decided by the Hearing Officer.
4.7.3 The admissibility of evidence and determinations of the weight to be given evidence and the credibility of witnesses shall be within the sound discretion of the Board.
4.7.4 The Board shall not receive into evidence any testimony offered by means of a telephone or other electronic or electromagnetic device.
4.8 Subpoenas.
4.8.1 A party may request subpoenas to compel a witness or witnesses to appear at a hearing or to compel the production of documents at or prior to a hearing. Such a request shall be in writing, be received by the Board at least 7 days prior to the hearing, and state the full name and address of the person(s) to be subpoenaed and a detailed description of the documents to produced. The issuance of such subpoena(s) shall be at the sole discretion of the Board and its attorney.
4.8.2 The Board sua sponte may issue subpoenas to compel witnesses to appear at a hearing or documents to be produced at or prior to a hearing.
4.9 Exhibits. Any party offering any document into evidence at a hearing shall provide at least 4 copies of such document at the time of the hearing.
4.10 Written Submissions. The Board or its attorney may at their discretion request written submissions from the parties prior to or following the hearing.
5.0 Remand. The Board may remand any case to the Hearing Officer at any time and for any purpose at its sole discretion.
6.0 Decisions.
6.1 The Board shall render its decision promptly, usually within 14 days after the hearing.
6.2 The Board may affirm, modify, or reverse, in whole or in part, the decision of the Appeals Referee.
6.3 The Board may sua sponte affirm, modify or set aside any decision of an appeal tribunal on the basis of evidence previously submitted, without further hearing, or direct the taking of additional evidence or may permit any of the parties to the decision to initiate further appeal before it.
6.4 Final decisions shall be accompanied by a notice of the right to appeal the Board’s decision to Superior Court pursuant to 19 Del.C. § 3323.
7.0 Rehearing. At any time subsequent to a Board decision but prior to the Board’s decision becoming final, any party to the appeal may request by motion, with notice to all parties, a rehearing before to Board. The motion shall set forth briefly and distinctly the grounds for the motion. The Board shall promptly consider the motion for reconsideration. A copy of the Board’s decision on the motion for rehearing shall be mailed to all parties or their counsel if represented by an attorney.
7.1 The grant or denial of a motion for rehearing is solely within the discretion of the Board.
7.2 The Board shall not consider any motion for rehearing filed after the Board’s decision has become final.
7.3 The Board shall not consider any motion for rehearing of the Board’s denial of a prior motion for rehearing.