DAR File No. 41426

Workforce Services, Unemployment Insurance

Rule R994-508

Appeal Procedures

Notice of Proposed Rule

(Amendment)

DAR File No.: 41426
Filed: 03/30/2017 03:15:25 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify procedure and meet new legislative changes.

Summary of the rule or change:

S.B. 224 from the 2017 General Session provides that the Department of Workforce Services can no longer require attorney fees be approved. The Department used to accept collect calls from claimants but now provides a toll free number to call for administrative hearings. To ensure claims are heard in a timely manner, requests to continue a hearing must be made by phone, so a new date can be set immediately.

Statutory or constitutional authorization for this rule:

• Subsection 35A-1-104(4)
• Section 35A-1-303
• Section 35A-1-104

Anticipated cost or savings to:

the state budget:

This is a federally-funded program, so there are no costs or savings to the state budget.

local governments:

This is a federally-funded program, so there are no costs or savings to local government.

small businesses:

There are no costs or savings to any small businesses as there are no fees associated with this program and it is federally funded.

persons other than small businesses, businesses, or local governmental entities:

There are no costs or savings to any persons other than small businesses, businesses, or local government entities as there are no fees associated with this program and it is federally funded.

Compliance costs for affected persons:

There are no costs or savings to any affected persons as there are no fees associated with this program and it is federally funded. These changes will not impact the contribution rate of any employer.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no compliance costs associated with this change. There are no fees associated with this change. There will be no cost to anyone to comply with these changes. There will be no fiscal impact on any business. These changes will have no impact on any employer's contribution tax rate.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Unemployment Insurance
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

• Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/16/2017

This rule may become effective on:

05/23/2017

Authorized by:

Jon Pierpont, Executive Director

R994. Workforce Services, Unemployment Insurance.

R994-508. Appeal Procedures.

R994-508-110. Telephone Hearings.

(1) Hearings are scheduled as telephonic hearings. Every party wishing to participate in the telephone hearing must call the Appeals Unit before the hearing and provide a telephone number where the party can be reached at the time of the hearing. If the party that filed the appeal fails to call in advance as required by the notice of hearing, the appeal will be dismissed and an order of default will be issued.

(2) If a party requires an in-person hearing, the party must contact an ALJ and request that the hearing be scheduled as an in-person hearing. The request should be made sufficiently in advance of the hearing so that all other parties may be given notice of the change in hearing type and the opportunity to appear in person also. Requests will only be granted if the party can show that an in-person hearing is necessary to accommodate a special need or if the ALJ deems an in-person hearing is necessary to ensure an orderly and fair hearing which meets due process requirements. If the ALJ grants the request, all parties will be informed that the hearing will be conducted in person. Even if the hearing is scheduled as an in-person hearing, a party may elect to participate by telephone. In-person hearings are held in the office of the Appeals Unit unless the ALJ determines that another location is more appropriate. The Department is not responsible for any travel costs incurred by attending an in-person hearing.

(3) The Appeals Unit will [permit collect calls from ]provide a toll-free telephone number that parties and their witnesses can call for confirming and participating in telephone hearings[; however, professional representatives not at the physical location of their client must pay their own telephone charges].

 

R994-508-116. Rescheduling or Continuance of Hearing.

(1) The ALJ may adjourn, reschedule, continue, or reopen a hearing on the ALJ's own motion or on the motion of a party.

(2) If a party knows in advance of the hearing that they will be unable to proceed with or participate in the hearing on the date or time scheduled, the party must request that the hearing be rescheduled or continued to another day or time.

(a) The request must be received prior to the hearing.

(b) The request must be made orally [or in writing to the ALJ who is scheduled to hear the case]by calling the Appeals Unit. If the request is not received prior to the hearing, the party must show cause for failing to make a timely request.

(c) The party making the request must provide evidence of good cause for the request.

(3) Unless compelling reasons exist, a party will not normally be granted more than one request for a continuance.

 

R994-508-201. [ Attorney ] Non-Attorney Representative Fees.

(1) An [attorney or other ]authorized representative who is not an attorney may not charge or receive a fee for representing a claimant in an action before the Department without prior approval by an ALJ or the Board. The Department is not responsible for the payment of the fee, only the regulation and approval of the fee. The Department does not regulate fees charged to employers or attorney's fees.

(2) Fees will not be approved in excess of 25 percent of the claimant's maximum potential regular benefit entitlement[unless such a limitation would preclude the claimant from pursuing an appeal to the Court of Appeals and/or the Supreme Court or would deprive the client of the right to representation].

 

R994-508-203. Criteria for Evaluation of Fee Petition.

The appropriateness of the fee will be determined using the following criteria:

(1) the complexity of the issues involved;

(2) the amount of time actually spent in;

(a) preparation of the case;

(b) attending the hearing;

(c) preparation of a brief, if required. Unless an appeal is taken to the Court of Appeals, fees charged for preparation of briefs or memoranda will not ordinarily be approved unless the ALJ requested or preapproved the filing of the brief or memoranda; and

(d) further appeal to the Board, the Court of Appeals, and/or the Supreme Court.

(3) The quality of service rendered including:

(a) preparedness of the representative;

(b) organization and presentation of the case;

(c) avoidance of undue delays. A[n attorney or] representative should make every effort to go forward with the hearing when it is originally scheduled to avoid leaving the claimant without income or an unnecessary overpayment; and,

(d) the necessity of representation. If the ALJ or the Board determines that the claimant was not in need of representation because of the simplicity of the case or the lack of preparation on the part of the representative, only a minimal fee may be approved or, in unusual circumstances, a fee may be disallowed.

(4) The prevailing fee in the community. The prevailing fee is the rate charged by peers for the same type of service. In determining the prevailing fee for the service rendered, the Department may consider information obtained from the Utah State Bar Association, Lawyer's Referral Service, or other similar organizations as well as similar cases before the Appeals Unit.

 

R994-508-204. Appeal of [ Attorney's ]Fee.

The claimant or the authorized representative may appeal the fee award to the Board within 30 days of the date of issuance of the ALJ's decision. The appeal must be in writing and set forth the reason or reasons for the appeal.

 

KEY: unemployment compensation, appellate procedures

Date of Enactment or Last Substantive Amendment: [September 25, 2013]2017

Notice of Continuation: May 16, 2013

Authorizing, and Implemented or Interpreted Law: 35A-4-508(2); 35A-4-508(5); 35A-4-508(6); 35A-4-406; 35A-4-103