300 Opening the Hearing

  1. In greeting parties, party representatives and the Hearing Officer should be affable but, at the same time, careful to preserve the dignity of the Tribunal. The Hearing Officer should be courteous and helpful to all concerned but should not discuss details of the case prior to the hearing or unduly delay the commencement of the hearing. Although the Hearing Officer may be acquainted with parties or party representatives as the result of their participation in hearings in other cases, the Hearing Officer should avoid any undue demonstration of familiarity which might give any other hearing participants the impression that the Hearing Officer may be biased in his/her conduct of the hearing or the decision in the appeal.

    Although the hearing procedure is informal, the Hearing Officer is in an authority position and should maintain control of the hearing at all times. The Hearing Officer should refrain from making statements such as, "I am required to..." Statements of this nature give the impression the Hearing Officer has no real authority and tend to undermine the control of the hearing.

    See Subchapter 214 of this Handbook for the proper procedures to address party challenges to interest and circumstances in which a Hearing Officer has disqualified himself/herself from hearing and deciding an appeal due to such interest.
  2. The Hearing Officer should first ask each party if there are other participants who will be appearing since they might need to be added to the conference. The names of all persons present at the hearing and the capacity in which they appear should be written on the inside cover of the claimant's folder. The parties' titles or positions (e.g., attorney, witness, supervisor, plant superintendent) should be listed on the folder for use on the coversheet of the decision. This would include any individuals appearing only as observers. The designation "observer" should be placed in parenthesis following the individual's name. Such listing serves as a ready reference for the names of the parties present and for the correct spelling of names. If the parties have several witnesses, the Hearing Officer should determine who will act as the primary representative for the purpose of questioning witnesses, among other things.

    If only one person appears for a party, the Hearing Officer should treat that person as the primary representative, even though other witnesses may be later added to the hearing. See Section 800.6 of this Handbook.
  3. If a party is represented by an attorney, accountant, union representative, etc., the name and address of the representative should be written on the hearing notice and the inside front of the folder. A copy of the decision will be mailed to the representative per the Hearing Officer's instructions on mail distribution.
  4. If a tape recorder is being used, the Hearing Officer should turn on the tape recorder when beginning to place the conference call to connect the parties to the hearing. This will insure that all party discussions are on record. The Hearing Officer should not permit discussions concerning the issues while the tape recorder is off. Both parties should be connected before engaging in conversations about witnesses, primary representatives and other matters.
  5. If an appeal involves the same parties and issues as a prior appeal but regarding a different benefit year (as in an additional claim appeal and subsequent initial claim appeal, both dealing with the same separation), the Hearing Officer should anticipate conducting a de novo hearing and issuing a new decision on the second appeal. Only if all parties stipulate in writing or on the record that they will allow the testimony and other evidence from the previous hearing to constitute the record for the second appeal will a second hearing not be necessary.
  6. All identifying information necessary for the record should be recorded first. This includes the following type of information.

    1. The number of the appeal.
    2. Name, address, and social security number of the claimant (or claimants).
    3. Name and address and Texas Workforce Commission account number of employer (if any).
    4. Names and capacity in which they appear of all other persons appearing for the hearing. Even if the hearing is in-person, the Hearing Officer should ask if there will be any witnesses participating by telephone.
    5. Date, time, and place of the hearing.
    6. The name of the Hearing Officer conducting the hearing.
    All participants should be asked to state and spell their full names and birth dates on the record. All necessary addresses of the parties should be verified on the record. The Hearing Officer must explain the importance of having correct mailing addresses as required by commission Rule 32(c)(8), which includes the admonition that subsequent appeal deadlines run from the date of mailing, not the date of receipt by the party. The Hearing Officer should inform employers that are not parties of interest that they will not have appeal rights but that the employer can be mailed a courtesy copy of the decision if the employer wishes. Each party should give their correct mailing address, and then the Hearing Officer should repeat that address for the record and have the party verify that the Hearing Officer has read the correct address. If either side is represented by another person or company, the Hearing Officer should verify both the representative's address and any address of that particular party.

    Issues and procedures to be followed in the hearing should be explained to the parties after the preliminary identifying information is recorded. The following is an example of identifying and procedural information given to the parties:

    "Mr./Ms. [state claimant's name]? Will you have any witnesses or observers today [Get the names and applicable information]? Mr./Ms. [state employer's name]? Will you have any witnesses or observers today? What are their names and job titles [Get the names and applicable information]?

    "This is a hearing in Appeal No. 812345-1, being conducted on April 12, 2006, at 1:03 p.m., via a conference call initiating from the Texas Workforce Commission State Office in Austin, Texas. I am Hearing Officer Smith, and I'll be conducting the hearing today. The hearing is being recorded.

    "The claimant in this hearing is [state claimant's name] and his social security number is [state claimant's SSN]. Do I have the SSN correct, Mr./Ms. [state claimant's name]? The employer is [state employer's name], account number [state the employer's account number]. Do I have the correct account number, Mr./Ms. [state employer's name]?

    (If either or both parties have more than one person present on their behalf) "Since there is more than one person appearing on behalf of the [claimant, employer, or both parties] you need to designate a primary representative. The primary representative is the person who gets to question all witnesses on behalf of that party, examines any documents, and may also be a witness. Mr./Ms. [state claimant's name], who will act as your side's primary representative? Who will act as the employer's primary representative?

    "Following today's hearing, I will be issuing a written decision that will be mailed to you.

    (If the employer is a party of interest) "Both sides will have appeal rights to that decision. Any appeal must be filed within fourteen days from the date the decision is mailed to you and not from the date you receive it so it is important that I have your correct mailing addresses. (Have each party state the address, repeat it, and ask for verification that you repeated it correctly.)

    (If the employer is not a party of interest) "The claimant will have the right to appeal the decision if the claimant disagrees with it. Any appeal must be filed within fourteen days from the date the decision is mailed to you and not from the date so it is important that I have your correct mailing address. [Have the claimant state his/her address, repeat it, and ask for verification that you repeated it correctly.]

    NOTE: Be sure and verify the address of any representative as well. Commission Rule 32(c)(4) requires proper mailing to a party representative to bind parties to timeliness rules.

    The employer is not a party of interest in this case because [state reason employer is NPI]. However, the employer will receive a courtesy copy of the decision with no appeal rights. To the employer, state: Mr./Ms. [state the name of the employer's primary representative], please give me the employer mailing address so we can mail you a courtesy copy of the decision. [Have the employer state the address, repeat it, and ask for verification that you repeated it correctly.]

    "This hearing came about as the result of an appeal filed by the [claimant or employer] on [state appeal date] to a determination dated [state determination date]. That determination [describe the determination on appeal including the beginning and ending dates of any disqualification or ineligibility, the Section of law involved, and any chargeback ruling.] The first issue we will be discussing at the hearing will be [if a separation case, state "whether the claimant was separated from his last work as a result of a discharge for work-connected misconduct or a voluntary quit without work-connected good cause"]. The second issue we will be addressing is [if chargeback is at issue, state "whether any benefits will be charged back to the employer's account as a result of this claim"]. [If the case involves some other issue it should be described as outlined on the notice. Also, if applicable, the Hearing Officer should explain any laws involved in the case that were not explained in the hearing packet.]

    "I will be asking you questions to bring out the facts in this case. You have the right to present testimony, documents, and witnesses. You have the right to question your own witnesses and any witnesses for the other side. (The parties must be informed of the right to question all witnesses even though there are no other witnesses appearing at the start of the hearing).

    Each witness will be asked to state their full name and date of birth for identification. Each party has the right to request I impose the rule. That means the other witnesses would be excluded from the hearing except for when they are testifying. All participants are instructed not to prompt the testimony of anyone and not to refer to any documents that haven't been previously been disclosed.

    (If the issue to be covered is separation)

    "Usually testimony is taken first from the party who initiated the separation.

    "All testimony must be taken under oath. Therefore, at this time, I would like to place each of you under oath. Please respond when I call your names. Do you solemnly swear or affirm that the testimony you are about to give in this case will be the truth, the whole truth, and nothing but the truth under penalty of perjury [state each witness' name and wait for a response]?

    "Mr./Ms. [state claimant's name or primary representative's name] do you have any questions about the hearing procedure or any of the other information I have mentioned? Mr./Ms. [state employer's primary representative's name] do you have any questions about the hearing procedure or any of the other information I have mentioned?

    (The following is used only if the hearing is being recorded on tape; not necessary for web based recordings)

    "At this time, I'm going to go off the record for a brief moment to check the quality of the recording. Please do not have any discussions while I am off the record. [Check the tape quality.] We are back on the record. I have checked the quality of the recording and found it to be adequate. There was no discussion while we were off the record. Is that true, [state claimant's name]? Is that true, [state employer's name]?

    "Before we get to the testimony portion of the hearing, I would like to have each of you state your full name, spell it, and give your date of birth for the record.

    [Take administrative notice that the notice of hearing and information packet were sent to both parties. Ask if each party received the notice of hearing and the packet of materials that came with the notice. Verify that both parties received them. The Hearing Officer should enter a Clear2There bookmark at this point to mark the Gutierrez required verification.]
  7. The Hearing Officer shall ask all persons giving testimony to identify themselves by name and date of birth. This is to afford the parties the opportunity to challenge the identity of a witness.
  8. Explanations of the most frequently used sections of the TUCA are sent to the parties with the hearing notice and packet. It is not necessary to explain these sections in the opening statement unless a party has questions about them. Any sections of law not covered in the informational insert which are potentially involved in the issues in the hearing should be explained by the Hearing Officer in their opening statement. In addition, if a new issue arises during the hearing that involves a section of law not covered in the insert, the Hearing Officer should explain such section of law to the parties.
  9. It should also be pointed out that appeal hearings are administrative in nature and that they do not follow regular courtroom procedure. On the other hand, while the hearings are informal in nature, control of the hearing must be maintained by the Hearing Officer in the interest of an orderly proceeding. Each party should be given ample opportunity to fully present evidence relevant to their case.
  10. The Hearing Officer should be sure that the parties understand the purpose of the hearing and the procedures to be followed before proceeding with the hearing. Both parties should be allowed to ask questions about issues or procedure of the Hearing Officer prior to beginning testimony.
  11. As to the contents of a proper opening or introductory statement, see Section 800.1 and Section 800.2 of this Handbook.
  12. If a party wishes to present a witness to testify in one of our hearings, they should have made prior arrangements with the individual to have them available at the time of the hearing. In the case of a telephone hearing, if the party failed to make such advance arrangements, the Hearing Officer should nonetheless make a reasonable effort to contact the offered witness. More than one effort should be made to contact the individual. If the witness is unable to participate when called, due to the lack of advance arrangements, the Hearing Officer should normally proceed with the hearing, without the witness. The Hearing Officer should limit that witness is "not needed." The Hearing Officer should limit testimony to relevant matters, but should not refuse to call a witness. If a witness is unavailable, the Hearing Officer may proceed without that witness as long as the Hearing Officer has made a reasonable effort to contact the witness
  13. The Hearing Officer shall inform the parties of their right to invoke the rule during the procedural explanation of the case in the introductory remarks.
  14. The Hearing Officer shall instruct each party and witness not to prompt testimony and not to refer to previously undisclosed documents.

    After recording the identifying information in the record and making a complete opening statement but before any testimony, the oath should be administered to the individuals who are to testify. Attorneys, union representatives, observers, and any other parties present who are not giving actual testimony do not need to take the oath or give their birthdates.
  15. The oath should be administered to all individuals who will be testifying after the completion of the identifying information and the explanations of the issues and procedures. If a party or witness objects to taking an "oath" or to being sworn, they may "affirm" that they will tell the truth. The form of the oath should require the witnesses to swear or affirm that they will tell the truth, the whole truth and nothing but the truth under penalty of perjury.

    In the event that the Hearing Officer neglects to administer the oath prior to the party or witness' testimony, the oath should be administered as soon as the Hearing Officer realizes that they failed to administer the oath. In such cases, the witness would be asked to swear or affirm that the testimony they have already given was the truth and that any later testimony will be the truth, etc.
  16. If the hearing is lengthy and appears likely to continue for an extended period of time, the Hearing Officer may order brief recesses at reasonable intervals. Such recesses should be reserved for hearings lasting well over one hour. The Hearing Officer should not postpone a hearing because it looks like there is not enough time to finish it, but should proceed and finish asmuch as possible before continuing.
  17. Notes taken during a hearing will help the Hearing Officer to remember all points that should be covered in the decision, but if there is any question concerning the evidence, the Hearing Officer should review the record of the hearing to assure that his/her decision is accurate. Note-taking is left to the discretion of the Hearing Officer. However, at no time should the Hearing Officer permit note-taking to interfere with the conduct of an effective hearing. Excessive note-taking may be distracting to the parties involved and may absorb the Hearing Officer's attention so fully as to prevent the Hearing Officer from observing the demeanor of witnesses. These guidelines also apply to notes that might be typed by the Hearing Officer during the hearing. The Hearing Officer should not leave any personal notes or draft decisions in the file when it is returned to the state office.
  18. The Public Information Act, Chapter 552 of the Government Code allows the public to have access to records and information compiled and maintained by state agencies if not otherwise considered confidential by law. The Attorney General has ruled any information which reveals whether an individual is receiving, has received, or has ever applied for unemployment insurance benefits is confidential by law. Accordingly, all information pertaining to a claim for benefits would be considered confidential with regard to the general public.

    Administrative staff manuals and written instructions to staff that affect the public, for example, the U.I. Manual and Appeals Policy and Precedent Manual, and general statistical information are available on request. The claimant and the employing unit have access in general to unemployment compensation records when the record is used in the making of a determination concerning that individual or employer. A person seeking to examine information or files may do so during normal working hours without charge.

    If there is any question concerning possible confidentiality of certain records, the Hearing Officer should refer the question to the Chief of Appeals for further clarification from the General Counsel's Office.

    Commission representatives are subject to monetary fines for the disclosure of the contents of any record that may be considered confidential. Any questionable requests for disclosure should be cleared by the State Office Appeals Department. [See Article 6252-17a, Section 10 & 12, V.A.C.S.]
  19. In a telephone hearing involving a work separation, the parties must have received a copy of the original hearing notice packet before the hearing can proceed. This would be the first packet that contained the fact finding statements, employer protest, appeal document, and any other documents obtained during the investigation. This is required to comply with the Gutierrez settlement. If the Hearing Officer finds out in time that a party did not receive the hearing packet, the Hearing Officer should try to mail or fax the packet to the party so the hearing may be held as scheduled. A party cannot waive receipt of the packet and proceed with a hearing that involves a work separation.
  20. The Hearing Officer should always take the best evidence available. If the firsthand witness is available to testify, the Hearing Officer should take the sworn testimony, if possible, rather than taking a written statement in lieu of testimony

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301 Use of Interpreters

  1. In some cases, it will become apparent that an interpreter will be needed. The official interpreter should be provided by the Commission.
  2. If the Appeals Department is aware ahead of time, the hearing will be scheduled with an interpreter provided by the Commission. In cases where a Spanish interpreter is needed, unless otherwise authorized, agency policy is to use a Federal Court-certified interpreter. With languages other than Spanish, the Appeals Department will also make every effort to obtain a competent interpreter for the language involved. If unaware of the need for a needed interpreter prior to the hearing, the Hearing Officer should check with the state office to see if one can be obtained on short notice. However, if an interpreter is not available, the Hearing Officer must postpone the hearing until an interpreter can be provided. If a party has requested an interpreter, the party should not be pressured to continue without one because an interpreter was not available. If the parties do not need an interpreter and the interpreter is needed for a witness only, the Hearing Officer should go ahead and take testimony from the available parties before continuing to get an interpreter for the witness.
  3. In some cases, the party who needs the interpreter will bring a relative with them for that purpose. As there is a risk that such an individual would not be sufficiently objective or competent to render quality interpretation, a relative will be used only as a last resort but only with languages other than Spanish. A representative can never be used to act as an interpreter for a party
  4. If a party does not bring an interpreter to the hearing, the party should be allowed to consult with the interpreter if he/she so desires. The party's right to do this should be made clear to the party.
  5. Before administering the interpreter's oath, the Hearing Officer should introduce the interpreter and explain the function of the interpreter to all witnesses. For example: "Mr./Ms. ________ will act as an interpreter in the hearing today. He/she will interpret my questions and the answers of both parties. If you do not understand any question, please advise me and I will rephrase the question. Mr./Ms. ________ will then interpret your answer into English and/or ______ (the other language). Answer each question slowly. If the answer is long, Mr/Ms. ________ may interrupt you in order to interpret what you have said, and after he or she has finished the interpretation, you may continue to answer the question." It should be clear that the interpreter is neutral and is not to represent either party. The interpreter should refrain from interacting with the parties in a manner that makes it appear the interpreter is representing a party.
  6. The interpreter will be placed under oath. See Subchapter 302 of this Handbook for the interpreter's oath. It is essential to put the interpreter under oath prior to any substantive part of the hearing itself. At this time, the Hearing Officer should verify for the record the interpreter's experience in such hearings. If the interpreter is a Federal Court-certified interpreter, only that information need be given. The customary oath for witnesses will be administered by the Hearing Officer through the interpreter to the witness.
  7. The responsibility of the interpreter in an appeal hearing is to translate into the language of the witness the question of the Hearing Officer or party, listen attentively to the reply, and translate the reply into English. It is the Hearing Officer's, not the interpreter's, responsibility to judge the credibility of witnesses and to weigh the evidence. Hence, the interpreter should translate the question as it is given to him/her by the Hearing Officer and the answer as it is given by the witness. The interpreter should not give a personal interpretation of either the question or answer. These points should be explained to the interpreter on the record at the time the oath is administered. However, if the interpreter is a Federal Court-certified interpreter, such explanation is unnecessary.
  8. In questioning a witness testifying through an interpreter, the Hearing Officer should phrase all questions in simple language. A question may require rephrasing one or more times until its meaning is clear.
  9. Both interpreted and uninterpreted versions should be recorded in the event there are subsequent allegations of inadequate interpretations. The interpreter may use simultaneous interpretation of English to the non-English speaking participant only when English is being spoken. However, when the non-English language is being spoken, the interpretation into English will be done consecutively. Simultaneous interpretation should be used only where special equipment is available to record both speakers.
  10. To alleviate any problems with who said what, testimony should be taken entirely in the foreign language. The interpreter should refrain from talking at the same time the party is talking.
  11. The Hearing Officer should stress that questions and responses be as brief as possible to insure that all testimony is translated. The parties should say only one or two sentences at a time before allowing the interpreter an opportunity to translate.
  12. The information packet containing agency documents is mailed to the assigned interpreter prior to the hearing.
  13. There may some cases where Commission records indicate the non-appellant needs an interpreter, but the non-appellant does not appear. In such cases, it is not necessary to interpret the introductory portion of the hearing. However, the testimony portion should be interpreted as the recording may need to be played for the non-appellant in case of a reopening request.

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302 Oaths and Affirmations [Section 202.043]

  1. All testimony at a hearing should be under oath or affirmation and all hearing interpreters should submit to a special oath or affirmation for interpreters. An affirmation should be used whenever, for religious reasons, a person objects to the act of swearing to an oath.
  2. A proper form of oath for parties and witnesses is:

    "Do you solemnly swear that the testimony you are about to give in this case will be the truth, the whole truth, and nothing but the truth?"

    A proper form of an affirmation for parties and witnesses is:

    "Do you solemnly affirm that the testimony you are about to give in this case will be the truth, the whole truth, and nothing but the truth?"
  3. A proper form of oath for interpreters is:

    "Do you solemnly swear that you will truthfully and accurately interpret all the proceedings and translate all documents in this case to the best of your ability?"

    A proper form of affirmation for interpreters is:

    "Do you solemnly affirm that you will truthfully and accurately interpret all the proceedings and translate all documents in this case to the best of your ability?"
  4. Representatives of parties (attorneys, accountants, union business agents, etc.) need not be sworn unless they give testimony.
  5. Normally, the Hearing Officer will not place persons under oath when making an independent investigation; however, in such cases where a party makes a material contradictory statement to that made by one of the parties or witnesses at the hearing, such statements should be reduced to writing and made under oath. However, a party shall be given an opportunity to confront and rebut any such evidence if it is to be used against their interest.
  6. The oath should be administered in a manner indicative of a solemn undertaking. The oath should be stated in a deliberate manner and should not be rushed as if it was a routine matter to be disposed of quickly. The Hearing Officer should raise his/her right hand and look directly at the parties while administering the oath. The Hearing Officer should not look away or examine documents while the oath is being administered. In telephone hearings, it is not necessary to have the parties raise their right hands, but the oath will be given in otherwise the same manner as the in-person hearings.
  7. Each witness should be sworn prior to giving testimony, preferably at the beginning of the hearing. If the number of witnesses is small, and it will not detract from the seriousness of the ceremony, the witnesses may be sworn in as a group by the Hearing Officer. The response of all parties should be noted for the record.

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303 Representation of Parties

  1. Parties to an appeal hearing have the right to appear without representation if they so desire.
  2. Section 207.007 of the Act provides that any individual claiming benefits in any proceeding before the Commission may be represented by counsel or other duly authorized agent. Commission Rule 18(3)(C), 40 TAC §815.18(3)(C) provides that any party may appear by an attorney or by any other party who is qualified to represent others. It is believed that this means that a party may bring anyone to the hearing to represent him/her, the only requirement being that the representative be the authorized agent of the party. Such representation should be permitted over the objection of the opposing party but subject, of course, to the application of Commission Rule 18(3)(D), 40 TAC §815.18(3)(D).
  3. Commission Rule 18(3)(D), 40 TAC §815.18(3)(D) confers upon the Appeal Tribunal the discretionary power to refuse to allow any person to represent others in an unethical manner or who intentionally and repeatedly fails to observe the provisions of the Act or the rules of the Commission.
  4. Commission Rule 18(4), 40 TAC §815.18(4) confers upon the Appeal Tribunal the discretionary power to expel from the proceeding any person, whether or not a party, who fails to comport themselves in a manner befitting the proceeding. Departmental policy (Appeal Memo 3-98) states that prior to exercising this authority, the Hearing Officer should first warn the person of the possible expulsion. If the disruptive conduct should recur, the Hearing Officer should call a recess and consult a supervisor.
  5. A partnership may be represented by any of its members or a duly authorized representative, and a corporation or association may be represented by an officer or a duly authorized representative [Commission Rule 18(3)(B), 40 TAC §815.18(3)(B)].
  6. It is the responsibility of the Hearing Officer to advise the parties of their rights, to give them an opportunity to fully develop their positions, and to insure that all evidence necessary for a fair decision is presented, regardless of whether or not a party is represented by an attorney or other, or has no representation. The Hearing Officer should be completely impartial in this respect, as it is his/her responsibility not only to provide a fair hearing for the parties involved, but to be sure that all necessary facts are established so that the decision will be in accord with the intent of the law and protects the public interest which sometimes does not coincide with the interests of the parties. The Hearing Officer is the authority in charge of any hearing he/she is conducting, and while every courtesy should be extended representatives of all parties, he/she must protect the right of any unrepresented party and must never let the proceeding get out of control.
  7. See Section 400 for consideration in ruling on motions by attorneys who are not familiar with Appeal Tribunal hearings.

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304 Fees for Representing a Claimant

  1. As of September 1, 2005, the statutory requirement for the Commission to approve attorney fees no longer exists. Prior to the last legislative session, Section 207.007(b) of the provided that..."Counsel or an agent representing an individual under this subtitle may not charge or receive a fee for these services greater than an amount approved by the commission." Current state law, Section 207.007(b) of the reads, "Counsel or an agent representing an individual under this subtitle may charge and collect a fee for the counsel's or agent's services." Occasionally, inquiries may be received from attorneys or other agents who represent individuals at hearings. Those persons should be advised that current state law has removed the requirement that the fees be approved by the Commission.

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305 Placing Witnesses "Under the Rule"

  1. During the explanation of the hearing procedures, the Hearing Officer must advise parties of the right to have witnesses placed under the Rule, i.e., excluded from the hearing except when giving their testimony. The Hearing Officer should explain that the purpose of the Rule is to ensure that witnesses are testifying to their knowledge of events without being influenced by the testimony of other witnesses.
  2. A request that witnesses be placed "under the rule" should be granted upon application of either party. The requesting party is not required to offer any justification for its request. The Hearing Officer may, on his or her own motion and without the concurrence of the parties, place witnesses "under the rule". If witnesses for one party are placed "under the rule", witnesses for both parties must be placed "under the rule".
  3. The Hearing Officer may invoke the rule on his or her own motion and should not hesitate to use this procedure if there is reason to believe that better evidence will be obtained if a witness is placed "under the rule". On the other hand, a Hearing Officer should not routinely invoke the rule in all cases without application for such by either party or in the absence of any reason to believe that better evidence would be obtained if the rule is invoked.
  4. Each party is entitled to have at least one person present throughout the entire hearing. It is not permissible to place a party or a party's representative "under the rule". The term "party" includes the claimant and the employer. For purposes of placing witnesses "under the rule", the term "party" in the case of the employer is not restricted to those who are parties of interest, that is, employers with appeal rights. Proper implementation of this provision for placing witnesses "under the rule" may be problematical in the case of an employer which is not a sole proprietorship. If the employer is a corporation or a partnership, some officer or employee of the corporation or partnership is entitled to remain in the hearing room with the employer's hearing representative. The designation of such person shall be the prerogative of those representing the employer.
  5. The normal procedure in placing witnesses "under the rule" is to administer the oath to all of them at the same time, then to direct that they leave and remain out of hearing of the proceedings and not discuss the proceedings in any manner among themselves. Witnesses should be cautioned not to leave the area as they need to be immediately available when called to testify. After witnesses have testified, they should not leave in case they need to be called for further testimony later.
  6. In cases involving a continuance, the parties should be cautioned not to discuss the proceedings with the witnesses "under the rule". Such activity could jeopardize the testimony of the witnesses. In questioning a witness, the Hearing Officer should avoid summarizing an earlier witness's testimony or otherwise revealing the contents of that testimony. When a witness placed "under the rule" is called for testimony, the witness should be reminded on record that he or she is still under oath.
  7. In telephone hearings, placing witnesses "under the rule" requires careful attention by the Hearing Officer. The opportunity for "prompting a witness" can be substantially reduced if the Hearing Officer waits to call the witness or witnesses at another site until it is time for the witness or witnesses to give testimony. If the witness or witnesses are at the same location, the Hearing Officer should ask the primary representative to have the witness or witnesses leave the room until the time for the witness or witnesses to give testimony and have the representative verify on the record that the witnesses have left.
  8. Texas Rule of Civil Evidence 614 ("The Rule") provides in relevant part that "This rule does not authorize exclusion of (1) a party who is a natural person or the spouse of such natural person, (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause."

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306 Independent Investigations

  1. In some cases it must be necessary that an independent investigation be conducted before a decision can be made. It is for the Hearing Officer to decide when an independent investigation is necessary. It may be necessary to contact parties who have no particular interest in the case. Examples are:

    1. Cases where it involves the claimant's wage credits. Frequently, the employer will fail to appear at the hearing. The Hearing Officer should make every effort to resolve the wage credit issue even if neither party appears. If only the claimant appears at the hearing, and evidence from a subsequent independent investigation results in a favorable decision, the claimant need not be confronted with the new evidence. However, if the new evidence would result in an adverse decision, another hearing must be set to allow the claimant rebuttal opportunities.

      See Section 603 for additional information on wage credit hearings.
    2. Work refusal cases where the employer to which the claimant was referred is not interested in the case and has not appeared.
    3. Cases where it is advisable to inspect the premises (seldom, if ever).
    4. Cases where it involves alien registration. Aliens occasionally have to turn in original forms to the US Citizenship and Immigration Services (USCIS). It may be necessary to contact USCIS using the Systematic Alien Verification for Entitlements (SAVE) program.
  2. If it is necessary to make an independent investigation, it is much better to make such investigation, if at all possible, prior to the hearing or before the hearing is adjourned in order that the party or parties present may be confronted with the information obtained.
  3. In all cases where an independent investigation is made, a full written report of the investigation should be prepared immediately and made part of the file.
  4. A party must be given an opportunity to confront any adverse evidence and to give rebuttal before the evidence can be used in a decision. The Hearing Officer should be liberal in determining what is considered potentially adverse to a party and should always confront the party with the evidence if there is any doubt.

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307 What the Hearing Should Cover

  1. The Hearing Officer has jurisdiction only over the matter from which the appeal was taken. No additional issues should be heard or decided without first giving notice of such issue to the parties, and without obtaining their agreement to proceed on that issue (waiving notice). Such waiver must be obtained on jurisdictional issues, such as timeliness of the appeal, but is not necessary for issues of incorrect last employer or chargeback. However, if the claimant does not appear for a work separation hearing, and the facts indicate an incorrect last employer, the hearing should be reset to give the claimant notice on that issue. See additional information on waiving notice under Section 307.11.

    In any case where it is discovered that the party who filed the appeal has no authority of record to do so, the Hearing Officer should ask the party at the hearing whether he/she authorized the filing of the appeal before it was filed. If the appellant has not previously authorized the filing of the appeal, it would be acceptable to have him/her ratify the filing of the appeal at the hearing. Necessary authority will be a matter of record if the case is further appealed to the Commission.
  2. In order to insure "due process" in any wage credit or chargeability hearing, the claimant must be given an opportunity for rebuttal of information if there is a possibility that wage credits may be deleted. Particularly in cases of one-party chargeback hearings, the hearing must be reset to afford the claimant an opportunity to rebut the employer's testimony. See Section 310 for additional information on rebuttal and confrontation procedures.
  3. Each hearing involving benefits should cover adequate background information concerning the issues so that the Hearing Officer will have a better understanding of the claimant's position. For example, the Hearing Officer should review as much of the information in the file as possible prior to the hearing.
  4. The Hearing Officer should familiarize himself/herself with all investigation reports made by the Benefits Department pertaining to the issues in the hearing. It may be necessary to question the parties concerning the file information, and possibly enter some file documents into the record as exhibits.

    See Section 412 for additional information concerning exhibits.
  5. In hearings involving an issue relating to the claimant's separation from the last work, the Hearing Officer should first verify that the employer named on the claim as the employer for whom the claimant last worked was, in fact, the last work performed by the claimant prior to filing the claim.
  6. In cases involving the claimant's separation from work, detailed information should be obtained concerning the claimant's last work such as the dates of employment, job title and duties, hours of work, rate of pay, and complete facts on the reason for separation from work.
  7. In many cases a decision can be reached only after interpretation of a labor-management agreement, house rule, personnel policy statement, etc. It is desirable in every case of this type to obtain copies of these agreements and introduce them into the record. These should be authenticated. To do this, it is necessary to verify that it is the document that it purports to be and that it is actually the agreement which is or was in effect at the time of the circumstances under investigation. In some cases, the Hearing Officer may find it helpful to obtain copies of other documents made pursuant to the main agreement, such as directives, orders, agreements, or other media.
  8. In hearings where ability to work and availability to work are issues on the Notice of Hearing, the claimant should be questioned in detail. With intrastate claimants, the claims office has informed the claimant how many employer contacts must be made each week, and what type of contacts (in-person, telephone, resume) are acceptable. Interstate claimants do not follow that procedure, but are still required to meet the eligibility requirements. The exact dates of ineligibility, if any, should be established. Since the claimant's search for work is a determining factor in most cases in ruling on the claimant's availability for work, the Hearing Officer should inquire as to the names of employers the claimant has contacted, the dates contacted, the type of work for which the claimant applied, the names of individuals the claimant contacted, and the results of these contacts. When questioning a claimant in regard to availability for work, it is suggested that the Hearing Officer ask the claimant how he/she usually obtains employment and determine if those things are being done in order to obtain employment. In some cases, it may be advisable to inquire as to how the claimant obtained his/her last three jobs. The Hearing Officer should check claims records to see how many work search contacts are being required for the claimant. Information regarding the claimant's work registration activity is available through "Work in Texas." The Hearing Officer should also consult Commission Rule 28, 40 TAC 815.28 on work search related issues.

    There may be ability/availability issues raised for the first time at a hearing on an appeal involving other issues. The Hearing Officer should create a case for investigation in the mainframe Benefits system so that a determination may be issued by the tele-center.
  9. In cases where continuing ineligibility is the issue, the Hearing Officer has jurisdiction fourteen (14) days prior to the date of the determination on the theory that each day of the ineligibility becomes final fourteen days from the date in question. Some of the Sections of the Texas Unemployment Compensation Act which should be considered are 207.041, 207.042, 207.043, 207.021(4), 207.048, 207.049, and 207.052.
  10. Whenever an appeal from a determination is also timely to one or more determinations issued by the Benefits Department, the Hearing Officer should cover only those issues on appeal.
  11. There may be instances where either an issue was inadvertently omitted from the Notice of Hearing or a new issue is raised for the first time at the hearing. Procedures for handling these situations differ.

    In cases involving issues that are on appeal, but were omitted from the Notice of Hearing, the Hearing Officer should first inquire of the interested parties if they are willing to waive the fact that they had not received prior notice. When explaining the options to waive notice, the Hearing Officer should explain that, by waiving notice, there will be an immediate ruling on the issues as a part of the decision whereas, by declining waiver, the hearing will be continued to a different date to allow proper notice. The Hearing Officer should avoid any appearance of duress or coercion. If the parties will not waive notice to an omitted issue, the Hearing Officer should take as much testimony on the noticed issues as possible and then continue the case for the omitted issue after proper notice.

    In some cases, the issue of whether the claimant was unemployed and the claim is valid may be raised as a new issue. If this issue was not on the notice, the claimant must have appeared and given waiver or the issue may not be covered in that hearing. Without a claimant waiver, the Hearing Officer should cover the other issues as much as possible and then continue to have this issue added to the Hearing Notice.

    If a new issue has been raised for the first time at the hearing, and no determination on that issue has been issued by the tele-center, the Hearing Officer should not attempt to take original jurisdiction. Rather, he/she should refer the matter to the UI Support Services Department using the on-line case creation feature under the UI Claims menu. Limited testimony sufficient to create a case should be taken on the new issue. An example would be where the Hearing Officer is assigned a case based on a partial separation from employment, but testimony develops an issue of a subsequent total separation that has not yet been adjudicated.

    A party may raise an issue which was not on the Notice of Hearing at the hearing where a determination has been issued by the Benefits department. Such a situation may occur when the party meant to appeal the issue, but did not indicate that fact clearly enough in the appeal request. In that case, the Hearing Officer will use the same procedure as an issue on appeal that was inadvertently omitted from the Notice of Hearing.
  12. Some "new" issues require special handling. Issues requiring a fraud investigation, such as unreported earnings, should be referred to UI Claims Fraud via electronic e-mail. Do not use the on-line case creation feature to initiate a fraud investigation.

    Likewise, where the evidence obtained in the hearing shows that the claimant worked for the employer during the base period of the claim, but the employer is not reflected as a base period employer, the Hearing Officer should send an e-mail to the head of Field Tax requesting an investigation of the employer's tax liability.
  13. Both sides should be given the opportunity to add to the record immediately before the hearing is adjourned. The Hearing Officer does not have to solicit final arguments from the parties. However, if either party requests to make a final statement, the Hearing Officer should grant this request and give the opportunity for a closing statement to the other party as well. The Hearing Officer should tell the parties not to base their arguments on facts not in evidence.

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308 The Record of Testimony

  1. The Hearing Officer is responsible for obtaining a complete and clear record of all testimony taken in a hearing. The testimony presented to the Hearing Officer must be preserved so that it may be reviewed on appeal to the Commission or may be reviewed to answer subsequent charges that may be made by a party to the hearing. Recordings are now made digitally using a web based system and many of the prior recording problems have been eliminated. However, if the digital system is not available, the Hearing Officer should use a tape recorder rather than canceling hearings.
  2. Only the Hearing Officer controls the record of evidence. The Hearing Officer should not permit witnesses or representatives to indicate "off the record." Statements can be off the record only when the Hearing Officer directs. If checking tape quality or changing tape sides, the Hearing Officer must secure party concurrences that no discussion of the case took place while off record. If any discussion occurred, a summary with party concurrences must be obtained
  3. Occasionally, the Hearing Officer will have requests by one or both of the parties that they be permitted to bring a recording machine to the hearing to record the testimony or to have it recorded by a reporter. As this practice is consistently permitted in all courts of record, we do not believe that we have the authority to deny the parties the right to record the hearing. It should be pointed out to them, however, that the official record of the hearing is the record which is being made by the Hearing Officer and that it will be controlling in any dispute which may arise with respect to what actual facts were included in the record.
  4. The following points should be kept in mind in obtaining a satisfactory recording of a hearing:

    1. The recording is to preserve the testimony. The Hearing Officer should go off-record to check the quality of the recording within the first five (5) minutes of the hearing. The sound quality check should include a sample of the parties' voices as well as that of the Hearing Officer.
    2. If a tape recorder is used, it should be allowed to warm up for a few minutes before the beginning of the hearing. The Hearing Officer should check the cassette tape to insure that the tape is advanced enough to record the beginning of the hearing.
    3. For in-person hearings, microphones should be placed closer to the parties than the Hearing Officer. Microphones should never be placed on top of the recorder. Portable cassette tape recorders without microphones should be used only in emergency situations.
    4. At the beginning of the hearing, during the opening statement, all key persons, including the Hearing Officer, must be identified.
    5. Each new voice coming onto the record must be identified by referring to the party by name.
    6. Only one voice should speak at a time. When more than one voice has spoken at the same time, each must repeat its statement singly. The listener cannot know the importance of the statement if it cannot be understood.
    7. If using a cassette tape, it should be changed to the second side immediately at the sound of the thirty (30) minute buzzer. There will be a warning buzzer at approximately twenty-five (25) minutes with most equipment that we use. When going back on record on the second side, identifying information concerning the appeal should be read into the record.
    8. Persons with soft voices or mushy pronunciation and distant persons, including those who turn their heads away from the microphone and others, are sometimes impossible to understand. The Hearing Officer must take charge and cause witnesses to speak up and to enunciate clearly. When in doubt, stop the proceedings and test the recording.
    9. Any words used in the hearing that are unclear or vague should be clarified immediately by the Hearing Officer.
    10. Coughs, sirens, passing trucks or automobiles, carpenter work, and other noises may cause the loss of important and key works, such as "not". Extraordinary care must be used under adverse conditions. The testimony may be repeated when doubt exists as to a clear record.
    11. Attempt to have all persons speak as slowly and distinctly as reasonably can be done. The Hearing Officer may diminish or accelerate the tempo by creating a proper example. Voices should be "projected" rather than loud. Witnesses will unconsciously imitate the Hearing Officer.

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309 Order of Proof

  1. At a hearing before a Hearing Officer, neither party has the burden of establishing a specific contention or of overthrowing a claims examiner's determination. Because the position of a Hearing Officer at a hearing is one of a disinterested investigator seeking to gather all pertinent facts, and because of the underlying social purpose of the unemployment compensation law, no procedural burden exists upon the parties to a hearing in the sense that such a burden ordinarily is imposed upon litigants in courts of law. The ultimate burden is upon the Hearing Officer to get the complete and accurate facts pertinent to the case upon appeal. The Hearing Officer should not, therefore, attempt to burden a party with the task of presenting affirmatively all the evidence on a specific issue.
  2. A claimant is entitled to benefits when he/she meets the eligibility conditions unless the Hearing Officer is affirmatively satisfied of the existence of facts requiring disqualification. The Hearing Officer must be affirmatively satisfied, by the facts presented, that the claimant meets the eligibility conditions.
  3. The Hearing Officer should explain in the opening statement the order of presenting evidence that the hearing is likely to follow. For a separation issue, the testimony begins with the side that initiated the separation from employment. In a wage credit case, the testimony begins with the side challenging the accuracy of the existing wage credits. In any two party hearing, the Hearing Officer should always make some statement regarding the order of proof in order to comply with federal standards. Before commencing the testimony on the main issue(s), the Hearing Officer may take background information from either party (dates of employment, etc.), but generally the claimant will have the requested information most readily and the Hearing Officer can identify any issue of incorrect last work at the outset.

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310 Right to Confrontation and Rebuttal

  1. At the time of the hearing, any party (employer or claimant) who appears should be confronted with all evidence in the file, documentary or otherwise, whether secured by independent investigation or not, which is adverse to their interest and which may be considered in arriving at a decision in the case. The Hearing Officer should be liberal in deciding what might be considered adverse to a party's interest.
  2. If circumstances are such that the Hearing Officer is unable to make an independent investigation before the hearing, he/she should not use the information secured subsequent to the hearing to reach a decision adverse to the interest of either party unless such party has had an opportunity to be confronted with such information. In this situation, before a decision is made, the case should be reset to allow the party concerned an opportunity to offer rebuttal testimony. This same procedure applies to affidavits received from either party which are received subsequent to the date of the hearing. Information contained in the affidavits which is adverse to the interest of the opposing party should not be used in reaching a decision unless the opposing party has had an opportunity to rebut the evidence in the affidavit.
  3. In cases where one party has appeared at the hearing by affidavit and there is direct conflict between the information in the affidavit and the testimony of the party who appeared in person and this information is material to the appeal decision, the Hearing Officer should make a decision based on the testimony and evidence at hand rather than reset the hearing. It should be remembered that in most cases, direct testimony will carry greater weight than affidavits.
  4. If one party arrives late to an in-person hearing or calls in late to a telephone hearing, and is going to be included in the hearing, the Hearing Officer must either replay the tape of the hearing to that point or begin the hearing again. Any procedural information that may have been omitted with the initial instructions should be supplemented after the late-arriving party is included in the hearing.
  5. In cases where a hearing has been reset under Commission Rule 16, the Hearing Officer should play the testimony from the previous hearing for the opposing party present at the subsequent hearing. Even if both parties are now present, the previous hearing tape should be played. The party appearing at the previous hearing can then be asked to supplement their testimony if they so desire. The Hearing Officer should keep in mind that the opposing side has the right to cross-examine on any testimony taken at a previous hearing.

    It is not necessary to play a hearing record for a party who was present or was represented at an earlier hearing or has had an opportunity to hear that record. A recording should only be played for a party if that party was not represented at the earlier hearing. If a party chooses to change representatives for a later hearing, the recording should not be played since that party was already represented at the earlier hearing. If the Hearing Officer is aware of a substitution in time, the Hearing Officer can have a recording of the earlier hearing sent to the new representative prior to the hearing.
  6. Some two-party hearings may have ineligibilities included in the appeal. The Hearing Officer should never dismiss the employer or suggest the employer drop out of the hearing prematurely. Even though the employer may have nothing to offer on these issues, dismissing the employer can create the appearance of unfairness. However, if the employer asks if they can drop out of the hearing after the separation has been covered, they may, of course, do so.
  7. Non-base period employers who have appeal rights may file an appeal, and the Hearing Officer should never suggest a withdrawal because the employer has no potential chargeback.

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311 Examining Witnesses

  1. Commission Rule 16(3)(A), 40 TAC §815.16(3)(A) provides that hearings shall be conducted informally and in such a manner as to ascertain the substantial rights of the parties.
  2. The Hearing Officer should afford each party the opportunity to tell their story fully, but should limit the parties to providing relevant material.
  3. Witnesses should be instructed to speak distinctly and as loudly as necessary to record successfully.
  4. When the witness is asked a question, he/she must be allowed to answer it before another question is asked. Questions asked too rapidly will frequently destroy the answer the witness is trying to give. Also if the witness is not permitted to finish the statement, it will appear in the transcript that the Hearing Officer has cut him/her off.
  5. The control of the hearing should, at all times, rest with the Hearing Officer. Ordinarily, the Hearing Officer will conduct the examination of the witnesses.
  6. Parties and their representatives must be permitted the opportunity for reasonable examination. The Hearing Officer should control and direct the examination conducted by parties or their representatives. Such examinations should not be permitted to stray from the pertinent evidence, nor should they be allowed to degenerate into arguments or mere heckling.
  7. When offering the right of cross-examination to a party, the Hearing Officer should exercise care in the use of legal terminology. Parties not familiar with legal terminology can become unduly tense which could affect the quality of the hearing.
  8. It is also dangerous to refer to an individual who is about to testify as a "hostile witness". In legal terminology, a "hostile witness" is merely one who is called by the opposing side or who is not expected to be friendly to that side. The advantage of labeling a witness as "hostile" is that it permits the opposite side to ask leading questions. One's own witness may show by statements and actions that he/she has become hostile and when it occurs, leading questions may be asked. The danger in our practice is that the parties themselves do not understand the meaning of the word "hostile" and sometimes become incensed to the point of demanding a postponement. Consequently, it is well to avoid the use of the word "hostile" and if it is introduced by attorneys present, the witness should be instructed with respect to the significance of the term in order to avoid misunderstanding.
  9. Under no circumstances should a Hearing Officer permit "bullying" or intimidation of witnesses; nor should the Hearing Officer engage in any such practice. The dignity of the Tribunal, the decorum of a hearing, and the ordinary courtesy due the parties, their representatives and their witnesses, require that the Hearing Officer prevent haranguing, altercations, or any form of rowdiness during the hearing of an appeal.
  10. The Hearing Officer should permit only one person to speak at a time. When a witness is testifying, no one else should be permitted to break in
  11. Occasionally it is apparent that a witness' testimony will be difficult to understand because of a heavy accent, speech impediment, etc. In this situation, the Hearing Officer should repeat any unclear answers to confirm the testimony for the record.
  12. When a witness uses proper names in giving testimony, the Hearing Officer should get the identity of the individual or place with the subject matter of the appeal. (For example, when the claimant says, "Joe Smith told me there wasn't any job for me any more", ask "Who is Joe Smith?".)
  13. When a witness uses a proper name, the Hearing Officer should try to get the correct spelling of the name.
  14. The Hearing Officer should not suggest testimony or the response they anticipate. Questions should be phrased in an interrogatory manner requiring the witness to provide information from their own personal knowledge or observation.
  15. As a general rule, the shorter the question and the more narrow its scope, the greater is the comprehension and the usefulness of the answer. Complicated questions encourage unresponsive answers.
  16. Only one question should be asked at a time. The witness should be required to answer definitely the question before proceeding to the next question.
  17. Questions should be framed in language that the witness understands. Avoid asking questions containing a negative pregnant (e.g., "Did you destroy the record on Tuesday, June 15, 1993?". A negative reply to this question is said to be pregnant with an admission that the record might have been destroyed on another day.)
  18. The "controlled narrative" is the best way of developing testimony in most hearings. This method involves the Hearing Officer asking the witness to recount relevant testimony in their own words. The Hearing Officer then follows that testimony with a more focused "question and answer" format as necessary to clarify details, the source of the witness' knowledge of events, etc.
  19. The narrative question is the method most frequently used by expert examiners after a proper foundation is laid. This type of question can be defined as the asking of a witness to relate what is known about a particular situation in their own words. Care must be taken that testimony does not become unduly long, repetitious, or irrelevant.
  20. The Hearing Officer should be careful to inform an unrepresented party of the right to question an opposing party or witness. The Hearing Officer should aid the party in framing questions if necessary in the interrogation.
  21. Parties and their representatives have the right to question their own witnesses, but they should not be permitted to lead or coach or prompt their witnesses. They will be allowed to ask leading questions when examining a dull or uncooperative witness, such as on cross-examination.
  22. The Hearing Officer should maintain an impartial demeanor throughout the proceeding when addressing or questioning witnesses. Gratuitous comments or observations should not be made. Hearing Officers should never indicate their disbelief of testimony or the reasonableness of a party's actions. The Hearing Officer is charged with the responsibility of determining the credibility of witness testimony and evidence and any expressions regarding the credibility of a party or witness should be reserved for the written decision.
  23. The Hearing Officer should not argue with witnesses or parties and should not allow them to argue with each other. It is not proper for the Hearing Officer to ask leading questions unless dealing with a dull or reluctant witness.

    While Hearing Officers have the authority under Rule 18 to expel participants whose intentional and repeated disruptions of the hearing preclude a fair hearing, this action should be taken as a last resort and after consultation with a supervisor. The Hearing Officer should handle unruly parties by first instructing them that such behavior will not be tolerated and that you will expect all parties and witnesses to show the same courtesy of not interrupting one another or disrupting the proceedings.

    Any disruptive individual should be first given a warning on the record, of the possibility of their expulsion from the hearing, should their behavior persist. If the problem continues, you may consider taking a brief recess (five minutes), to allow the participant to calm down and reflect on their behavior. If these measures are not successful, the disruptive individual may be expelled under Rule 18, with the concurrence of a supervisor.
  24. The Hearing Officer should not ask questions that call for conclusions, such as: "Was claimant intoxicated?". Rather, the Hearing Officer should ask detailed questions which will allow him/her to decide whether the claimant was intoxicated or not. Examples are: "Was claimant staggering at the time?". "Did his breath smell of liquor?" "Was his speech thick or incoherent?"
  25. The fact that most hearings are conducted via the telephone makes it particularly important for the Hearing Officer to identify to whom he/she is addressing a question and to ensure that the parties are identified when speaking.
  26. The examination of persons should proceed in an orderly manner. It is the duty of the Hearing Officer to see that testimony of each witness is exhausted as nearly as possible before the next witness is questioned. The examination of witnesses should not skip from one to another. If questions are suggested by a witness himself, the Hearing Officer should make appropriate notes for the further interrogation of that or other witnesses.
  27. When dates are mentioned, the day, month, and year should be given.
  28. If the testimony refers to form numbers, code numbers, symbols, abbreviations, or technical terms, the Hearing Officer should have these spelled out and explained in language simple enough for any ordinary individual to understand.
  29. The Hearing Officer is in charge of the hearing and should not permit the parties to use profane or vulgar language indiscriminately in giving their testimony. If the alleged profane or vulgar language is a part of the separation itself, it must be allowed to come in. If the claimant resigned because the foreman called the claimant a profane name, the Hearing Officer could state in the decision that the claimant resigned with good cause connected with the work because the foreman called him/her a profane name. Unless the actual name the claimant was called is in the evidence the Hearing Officer or others reviewing the file would have no basis to judge whether the name was profane or not
  30. In the spouse-leaving provision of Section 207.045 of the Texas Unemployment Compensation Act, the Hearing Officer should consider whether:

    1. claimant gave the customary notice of leaving generally observed at the claimant's place of employment or generally observed in the claimant's trade or profession; and worked until the end of the notice period.
    2. the claimant, in fact, left the area of employment to accompany their spouse; i.e., was the claimant's quitting proximate in time to leaving the area of employment?
    3. the spouse had a compelling reason to leave the claimant's area of employment, i.e. spouse's job opportunities or health; and
    4. the claimant offered and/or agreed to train a replacement during the notice period.
  31. In cases involving substitute teachers, the Hearing Officer should obtain information from the school districts that the relationship was expected to resume at the beginning of the following year. Written statements which provide facts that the substitute teacher had been asked to continue in a similar capacity are required rather than merely placing the substitute teacher on a list for the following year.
  32. When relevant and material documents necessary to decide a case have not been provided to the Hearing Officer or the opposing side, the Hearing Officer may schedule a continuance to obtain the evidence if other measures described in Section 316 have been unsuccessful. The record of the claimant's answers on continued claims should be made an exhibit in hearings involving eligibility issues.

    See Section 316 and 412 for proper procedures with exhibits.
  33. Some principles of good listening are as follows:

    1. Stop Talking. You cannot listen if you are talking.
    2. Put the witness at ease. Help them feel comfortable to relate their testimony.
    3. Let the talker know you are interested in what they have to say.
    4. Be patient. Do not interrupt, except to maintain control.
    5. Do not put the talker on the defensive. Encourage their candor.
    6. Ask questions that indicate you have been listening to what they have said.
    7. Stop talking! This is the first and last principle of good listening.
  34. Section 301.073 of the Texas Unemployment Compensation Act grants immunity from prosecution for any criminal matter, if a party or witness is compelled to testify after having invoked their 5th Amendment privilege against self incrimination.

    If the hearing involves a potential criminal matter and the party or witness expresses reluctance to testify concerning a matter for which they could be criminally prosecuted, the Hearing Officer should make them aware that their failure to present testimony in the U.I. hearing may result in their failure to present the preponderance of credible testimony and the loss of the case, however, they will not be compelled to testify if they wish to invoke their 5th Amendment rights against self incrimination. The Hearing Officer should never compel a person to answer a question who has invoked Fifth Admendment rights.

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312 Commission Personnel as Witnesses

  1. Commission personnel should be called as expert witnesses when their testimony would be relevant and material to the issue. For example, when there is an allegation of misinformation on behalf of a commission representative, an attempt should be made to determine the name of the commission employee and arrange for them to offer testimony on that issue.

    Expert testimony should be obtained on such issues as availability for work, where the issue hinges on whether a claimant is demanding a wage in excess of that most commonly occurring for the type of work they are seeking and qualified to perform. Likewise expert testimony should also be obtained for issues related to restrictions on the hours of work an individual is willing to accept. The record of the claimant's answers on the continued claims screen (BPRD screen in the Benefits System), should be entered as an exhibit for the Commission in hearings involving eligibility issues.

    The Tax Department will be sent notice of wage credit hearings in which an employing unit's liability for taxes is at issue. Any tax representative who participates in the hearing should be identified as a Commission witness.
  2. A TWC representative should be given adequate notice that they are needed as a witness in order not to disrupt the representative's work schedule any more than necessary. To avoid misunderstandings, the matter should be cleared with the immediate supervisor of the proposed witness.
  3. Although it is rare, there have been cases in which TWC representatives have refused to testify. If this occurs, it should be pointed out to the representative the necessity of having his/her testimony. If the representative still refuses to testify after the matter has been fully explained and the testimony is essential, the hearing should be postponed and the Chief of Appeals notified. The case will be reset and steps taken to secure the testimony of the needed witness.
  4. The Hearing Officer must administer the oath to the TWC representative and inquire as to his/her credentials as an "expert witness". Both parties have the right to cross-examine the TWC representative. However, a Commission representative is not a party to the proceeding and should not be accorded party rights such as the opportunity to question witnesses.
  5. An appeal evolving from an investigation of the Benefit Accuracy Measurement (BAM) Unit may require a member of that unit to be present at the hearing. The auditor should be treated as a Commission witness and questioned thoroughly as to the basis for the determination. After the hearing, a courtesy copy of the decision should be mailed to the BAM Unit.

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313 Adjournments, Continuances, and Postponements

(Commission Rule 16, 40 TAC §815.16, (4)(A) and (B))

  1. The Hearing Officer will use his/her best judgment as to when to adjourn, continue, or postpone hearings in order to secure all the evidence that is necessary and to be fair to all parties. The Hearing Officer should always continue if the allotted time is used and the parties have not finished presenting their evidence. If a party requests a continuance or postponement, the Hearing Officer should ask the reason for the request for the record. If the reason falls within those outlined in Commission Rule 16, the Hearing Officer should grant the request. If the reason is not one of those stated in Commission Rule 16, the Hearing Officer should not grant the request without the concurrence of a supervisor. Party conversations should be properly documented in the case folder. Postponements to comply with the Gutierrez settlement are covered in Section 300.19.
  2. The state office will attempt to anticipate the length of time required for each hearing. At times, however, more time than that allotted will be needed to complete the hearing. If this occurs, and the parties for the next scheduled hearing have called in to participate, the prior hearing must be continued and the next scheduled hearing begun on time. Hearing Officers should not proceed to run a prior hearing into the time allotted for the next hearing. If the appellant for the next scheduled hearing fails to call in, the hearing officer, after calling and dismissing the appellee, may continue the hearing in progress into the time allotted for the next hearing.
  3. The Hearing Officer has the authority to order a continuance to allow parties to complete their case. The parties should never be limited to a set amount of time because the Hearing Officer has other hearings scheduled later. The Hearing Officer should not approach this issue in a manner which may discourage any party from adequately presenting their case.
  4. The Hearing Officer should make every effort to continue hearings to one of their office days. Hearing Officers are expected to schedule up to two hours of continuances, if needed, on office days. The parties should be advised that the hearing will be scheduled for one of the next two office days. If they object, due to a previously scheduled conflicting matter, the hearing should be promptly reset using the normal e-mail procedure in the regular scheduling process, after determining from the parties when they would not be able to participate. Such information should be conveyed to the scheduler in the e-mail reset message, along with any special considerations such as the anticipated time needed to complete the hearing. A separate request should be made for each claimant to prevent the disclosure of confidential information. The file should be retained by the Hearing Officer pending resetting. If documents need to be sent with the next hearing notice, those documents should be transmitted to the state office to be scanned and included in the packet. The Hearing Officer is responsible for notifying the scheduler promptly of cases needing to be reset for a hearing.
  5. It may be necessary in the case of an in-person hearing to schedule the continuance by telephone. This may be the case if the Hearing Officer is conducting in-person hearings at a location remote from his/her regular office. Potential length of the continuance, number of witnesses or possible exhibits, and the complexity of the case are all factors to be considered in converting an in-person hearing to a telephone continuance.

    With a telephone continuance, prior to adjourning the in-person hearing, you should first inquire of the parties whether they have any documents not yet taken into the record as exhibits which they may offer as exhibits later in the hearing. It is not required to take such exhibits into the record at that moment, rather it is an opportunity to make copies of possible exhibits to share with both parties. This procedure will not preclude a party from being allowed to offer an exhibit at the continuance even if the document was in their possession at the earlier hearing. There may be instances in which a new fact issue arises at the telephone continuance to which a party's document is relevant and that party could not have reasonably anticipated the issue.
  6. A memorandum should always be in the file showing the reason for any postponement or rescheduling which is requested.
  7. If the Hearing Officer finds from information in the file that the hearing should never have been scheduled (e.g., the determination was not adverse to the appellant, the document identified as the appeal was not really an appeal, etc), the Hearing Officer should cancel the hearing. Both parties should be notified as soon as possible. The file should be returned to State Office Appeals with a short memorandum concerning the cancellation in order to insure proper disposition.

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314 Concluding the Hearing

  1. The Hearing Oficer should, prior to adjourning, ask each side separately if they have any new additional relevant testimony to offer. If so, they should be allowed to present it and cross examination should be afformed immediatley afterward. This procedure should be followed until neither side wishes to add any additional relevant testimony. The Hearing Officer should not solicit a closing argument, but should a party request the opportunity to make one, it should be allowed. The Hearing Officer should not solicit questions of the parties prior to adjournment. If a party asks a question regarding the appeal procedure, the Hearing Officer should answer it, but questions regarding claims or tax matters should be referred to the appropriate departments where more knowlegable persons can respond.
  2. After final statements, the Hearing Officer should advise the parties that:

    1. The parties will receive the Hearing Officer's written findings and decision by mail.
    2. That the claimant should continue filing claims while awaiting the decision if unemployed.
    3. Finally, the Hearing Officer should note the time the hearing is concluded.
    (Note: The Hearing Officer should make no promises as to when the decision will be mailed as there are normally factors outside the control of the Hearing Officer which may affect when the decision is mailed.)
  3. The Hearing Officer should not indicate to the parties what the decision will be.
  4. The Hearing Officer should also advise the parties of their right to further appeal. There should be no discussion of the merits of the controversy with the parties after the hearing is adjourned.
  5. Where the appellee has failed to appear, the Hearing Officer should explain to the party present the provisions of Commission Rule 16, 40 TAC §815.16 in regard to the possibility of a reopening.

    It should further be explained that if the case is scheduled as a reopening, the party who has offered testimony at the first hearing will be requested to again appear in order that they may refute any new testimony which might be offered. However, they should also be assured that all testimony offered at the first hearing will be given due consideration even though they may not appear at the second hearing.
  6. The hearing should not be adjourned until each side has had a distinct opportunity to add any additional relevant testimony. The opportunity for both parties to add testimony should not be combined in one question. Nor should the Hearing Officer indicate the hearing will be adjourned unless any one has anything else to add. The time the hearing is adjourned should be noted on the tape and the parties should be advised of their appeal rights. Finally, the tape should remain on, until the hearing has been adjourned.
  7. After a decision is rendered, the Hearing Officer should be careful about discussing the merits of the case or the reasons for the decision with the parties. If a party disagrees, they should again be given information concerning further appeal rights. If a party contacts the Hearing Officer and states the party didnot receive the decision, the Hearing Officer should have a copy mailed to the party by the state office. The Hearing Officer should not mail duplicate decision copies to parties.
  8. If claimant gives the Hearing Officer a change of address, it is the responsibility of the Hearing Officer to enter the new address into the benefits system.
  9. If an issue came up during the hearing that has not been adjudicated, it is the responsbility of the Hearing Officer to create a case in the benefits system. The Hearing Officer should exercise caution and make sure there is a real issue to be investigated before creating a case. For example, an investigation should not be set up for unreported earnings if the claimant never filed continued claims for the period he worked.

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315 Supplying Parties Information from the Record

  1. Commission Rule 18(2), 40 TAC §815.18(2) provides that orders for supplying information from the records of the Commission to a party to the appeal, or their representative, to the extent necessary for the proper presentation of a claim, shall issue only upon application of a party to the appeal which specifies as nearly as possible the exact nature of the information desired. It is the basis of a fair hearing that the parties are entitled to know allegations made against them in order that they may prepare an adequate defense.
  2. Either party has the right to copies of any documents in a file that pertains to them. One or both parties may also request a copy of the cassette tape of the hearing. No charge will be made for either request. Certification of tapes is optional. All such requests must be made in writing by the party and sent to Texas Workforce Commission, Tape\Document Duplication, TWC Bldg., Austin, TX 78778.
  3. The parties have the right to examine documents introduced into the record. It is permissible to allow parties to examine the file prior to the hearing if they request to do so. Attorneys will often make such a request.
  4. Statements taken by an investigator during the initial investigation of the claim, documenting the prior decision-making process, will be included in the information packet mailed to the parties with the hearing notice. Administrative notice should be taken by the Hearing Officer of the fact that the packet containing the hearing notice and related agency records and relevant documents in our possession were mailed to the parties.

    Although the responses to the fact-finding documents are technically hearsay, they may have evidentiary value (e.g. prior inconsistent statements). In this case the fact-finding statements should be marked as evidence in accordance with the proper procedure for admission of documentary evidence. The fact-finding statements should also be examined by the Hearing Officer in advance of the hearing, as they often will assist in alerting the Hearing Officer to questions that should be asked during the hearing.
  5. Requests for information from individuals not a party to an appeal should be referred to the Open Records Department in the state office.

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316 Telephone Hearings

  1. On the whole, telephone hearings are conducted in the same manner as in-person hearings. Any differences pertain to the technical aspects rather than procedural aspects. The Appeal Tribunal may schedule the hearing to be conducted by telephone if one or more parties are out of state, the parties are at different intrastate locations, both parties are at a location infrequently served by itinerant Hearing Officers, the Commission is required by Section 301.064 of the Act to provide language interpreters, or if in-person hearings have been determined by the Administrator to be impractical because of the large volume of appeals and/or limited funding resources.
  2. Requests for in-person hearings rather than telephone hearings will not be granted except under the most compelling circumstances. A party's desire to confront the opposing party or their witnesses will not warrant the scheduling of an in-person hearing in a case which would otherwise be scheduled as a telephone hearing unless the opposing party is located in an area in which in-person hearings are routinely conducted and the request for in-person scheduling is made prior to the hearing being scheduled by the Appeals Department.
  3. Telephone hearings are conducted through telephone conference equipment. The Clear2There website should be used for any hearing involving more than one telephone location. If Clear2There is not available, the appropriate conferencing system should be used and the hearing recorded on tape.
  4. If the parties have difficulty hearing each other because of a poor conference connection, it may be necessary to replace the call to improve the quality of sound. If the parties continue to have difficulty, sometimes having the Commission switchboard operator place the calls will improve the quality. If there is continuing difficulty, the Hearing Officer has the following options:

    1. Reset the hearing on another day if convenient to both parties
    2. Postpone the hearing until it can be reset from a different location.
  5. Both parties should be advised to speak up and speak distinctly. The Hearing Officer should caution the parties at the beginning of the hearing to notify the Hearing Officer immediately if they are having difficulty hearing the other party.
  6. Each party, or each party's primary representative, must have their witnesses ready to participate in the hearing at the scheduled time and must be prepared to provide the Hearing Officer, at the outset of the hearing, with the telephone numbers from which all their witnesses will be participating in the hearing.
  7. Parties to a telephone hearing are directed by the hearing notice to call in to a designated number during the 30 minute period prior to the scheduled hearing time. It is the parties' responsibility to place the initial call to the number designated on the hearing notice during the appropriate 30 minute time period. A party's failure to call in as instructed prior to the hearing time may result in the party not being allowed to participate in the hearing.
  8. It is the responsibility of each party, or their representative, to initiate contact for the hearing as indicated on the notice of hearing. Every effort should be made to insure that the correct number was received; however, if the wrong number was given, the Hearing Officer should wait as long as reasonably possible before starting the hearing with the other party. The Hearing Officer should attempt to locate a correct number through file records. Pay telephones can pose a particular problem in that some pay phones cannot receive calls.
  9. Added care is required in telephone hearings to identify different voices. Proper names should be used whenever possible. When given the oath, each party should be asked to answer separately. The Hearing Officer shall ask all persons giving testimony to identity themselves by name and date of birth and afford the parties the opportunity to challenge the identity of a witness.
  10. The hearing should be identified on record as a telephone conference hearing.
  11. The actual conducting of the hearing will follow the same procedures as in-person hearings.
  12. The Hearing Officer shall grant any party's request to "invoke the rule".
  13. The Hearing Officer shall instruct each party and witness not to prompt testimony and not to refer to previously undisclosed documents.
  14. Any party wishing to introduce a document for admission as an exhibit for the record in a telephone hearing must, prior to the hearing, fax or mail copies of the document to the Hearing Officer and the opposing party. If such copies have not been received by the opposing party prior to the hearing, and should a party, nevertheless, attempt to offer the previously disclosed document during the hearing, the Hearing Officer shall first determine the relevance of the document and then shall attempt to have the document faxed to the other party, ask for a waiver, or postpone the hearing.

    If the hearing is not postponed and the document is not faxed, then the Hearing Officer shall determine the length of the document. If the document is three pages or less and relevant, the witness shall be instructed to read the entire document into the record.

    If the document is more than three pages and relevant, then the Hearing Officer shall require the witness to read all relevant portions of the document or shall postpone the hearing. In those situations where the document or a portion of it was read into the record, then the Hearing Officer shall instruct the party presenting the evidence to send within five calendar days a copy of the entire document to the Hearing Officer and the other party.

    The Hearing Officer shall label all proposed exhibits and consider objections regarding admissibility from any party. The Hearing Officer shall not consider evidence not admitted and shall make all proffered evidence available for Commission review. Any document read into the record shall be read in, or contemporaneously translated into, a language that each party can understand.
  15. At an in-person hearing, a party may elect to have its primary representative and/or one or more of its witnesses participate by telephone from some other location. This will be permitted only if that party has at least one representative present in-person with the Hearing Officer. This in-person representative will have the responsibility for reviewing and possibly objecting to documents introduced as exhibits for the record. It will not be required that such in-person representative also perform the other functions of a hearing representative such as the examination of witnesses, the making of closing arguments and otherwise acting on behalf of the party.

    These functions may be performed by a representative participating by telephone. It will be the responsibility of the party representative appearing in-person to be prepared to provide the Hearing Officer with the names and telephone numbers of each witness who is to testify by telephone.

    Also at an in-person hearing, testimony may be taken by telephone from a witness who is a Commission employee or a disinterested witness (such as an expert witness) who has been summoned on the Hearing Officer's initiative; such witness will be deemed a Commission witness. An interpreter may also participate by telephone in an in-person hearing.

    An interpreter or a Commission witness, as described above, may be permitted, at a telephone hearing, to give testimony or provide language services to parties or witnesses while physically present with the Hearing Officer conducting the hearing. However, parties or party witnesses will not be permitted to be in the presence of the Hearing Officer during a telephone hearing unless at least one representative of each party is present.
  16. Telephone Problems - The following provide some general guidelines for handling telephone hearing problems. These guidelines are not hard and fast rules and the Hearing Officer should always consult with management if the Hearing Officer is uncertain about a situation.
  17. Cell Phone. When the Hearing Officer detects a party is using a cellular phone, it is a good idea to ask if the party has a land line available. If so, ask the party for the number and switch to it if possible. If not, advise the party you will do the best you can and proceed. If it is the appellant, tell that party it may result in the hearing not being completed if the call drops and the call cannot be reconnected. If it is the non-appellant or a non-party witness, advise that person if the call drops and you cannot reconnect the call, you will have to finish the hearing without that person.

    If you lose a party or participant on a cell phone during the hearing, make a diligent effort to call that participant back and reconnect the call. If you cannot reach the person and the disconnected party is the appellant, do not issue a non-appearance decision. If the appellant calls back that day, you may be able to reconvene the hearing and finish it. Otherwise, you should continue the hearing and reset it. If the disconnected participant is the non-appellant or a non-party witness, go ahead and finish the hearing without that person and render the decision. Any phone problems should always be promptly entered in Clear2There notes.
  18. Some parties will attempt to participate in a hearing while driving in a car. The Hearing Officer should always request that the participant pull off the road and park before proceeding. The person should be given a couple of minutes to do so if necessary. In the interest of a fair hearing, a participant needs to be able to give full attention to the proceeding without the distraction of driving a car. In the event the particpant cannot or will not to pull over, the Hearing Officer should proceed with the hearing.
  19. Cordless phone. Cordless phones can create problems as the signal is not as strong and the recording is frequently not as clear. Also, some parties have been lost during the hearing because the batteries were exhausted. Whenever the Hearing Officer detects a cordless phone is being used, the Hearing Officer should ask if the party has a corded phone available and give the party an opportunity to switch to a corded phone. If the Hearing Officer is unable to keep a party on the line due to failure of a cordless phone, the situation should be handled in the same manner as a cellular phone. Parties should be instructed to go to a TWC office or obtain access to a better telephone if a hearing is continued due to phone problems. In the event the party does not have a corded phone or cannot or will not switch to a corded phone, the Hearing Officer should proceed with the hearing.
  20. Unable to reach a party. Sometimes a Hearing Officer is not able to reach a party due to line busy, no answer, or party not available. If the telphone circuits are busy, the Hearing Officer will hear a "fast busy signal." The Hearing Officer should continue to try and contact the party. The Hearing Officer should reset the hearing if the Hearing Officer continues to get a "fast busy signal" after diligent efforts.
  21. In some cases, the person answering the phone tells the Hearing Officer that the party is not available. The Hearing Officer should always clearly identify themselves, the Hearing Officer's affiliation with the Texas Workforce Commission, and the purpose of the call. The Hearing Officer should request that the party be notified of the call. Any effort to contact a party who is unreachable should be immediately documented in C2T. In the event the party calls back to the 1-800 number, the receptionists can inform the caller of your attempts to contact the caller.

    The Hearing Officer should always wait several hours before issuing a decision after situation where a party could not be reached. This gives that party an opportunity to call us back. If the party calls us back and we learn the party was not reached because of our error, then the case should be reset.
  22. Speaker phone problems. Most speaker phones have one-way transmission, and if the party speaks over the Hearing Officer, the party cannot hear the Hearing Officer. The Hearing Officer may need to explain this to the parties and rquest that they be careful not to start answering a question before it is finished or talk at the same time as others. Also, the Hearing officer is responsible for obtaining the best recording possible. Each witness should be instructed to move up close to the speaker when each testifies.
  23. The guidelines stated in this section are intended for parties, not individual witnesses. If a witness is not available by phone after repeated efforts, the Hearing Officer normally should proceed without the witness. However, if the opposing party presents a surprise issue, the Hearing Officer should consider a continuance if the witness is not available. A party may decide to present additional witnesses at any time during the hearing, and this must be allowed. Even though prior arrangements might not have been made for that witness to participate, the Hearing officer should make a good faith effort to call the witness before moving on. Sometimes the names of persons come up during the hearing who are not among the witnesses, but could have significant testimony. Under these circumstances, the Hearing Officer should take the initiative to ask the party if that witness is available at that time to testify. The Hearing officer should not delay the hearing excessively to run down the witness. If the witness is not available, the party should be asked whether the party tried to arrange for the witness' participation and why the witness is not available. This information could be important if there were a future request for a rehearing.

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317 Summary Judgment Authority in Timeliness Cases

  1. In any hearing in which the threshold issue is timeliness of protest/appeal/petition to reopen, the Hearing Officer may terminate the hearing upon the conclusion of all testimony on the jurisdictional issue alone if he or she is certain that the decision clearly required by the evidence in the record is that of dismissing the appeal or petition to reopen for lack of jurisdiction or affirming the determination that the employer had filed a late protest. It is imperative that the special authority granted by this policy be judiciously exercised.
  2. If the appellant alleges the timely filing of a protest/appeal/petition which the TWC has never received, but does not offer corroborative testimony of a disinterested party or physical evidence specifically linked to the filing of the document in question, Commission Rule 32(f) requires a finding of untimeliness. If you choose to exercise summary judgment in this situation, be certain to check and make sure that the hearing notice properly apprised the parties of the testimony/evidence which the Commission rule requires.
  3. Should anyone challenge your authority to render summary judgments as discussed here, you should identify this Section of the Handbook as the source of your authority in this area.
  4. Parties may be less likely to complain of what they may perceive as arbitrary conduct, and you may save yourself some hearing time, if you have somewhat prepared the ground by your order of proceeding. You should explain to the party(ies) during your opening statement that you reserve the right to exercise summary judgement if the evidence clearly indicates your lack of jurisdiction due to an untimely protest, appeal or petition to reopen. Caution the party(ies) that even though you may proceed to cover the underlying merits of the case, you may ultimately conclude that the protest, appeal, or petition was untimely and that you lack jurisdiction to rule on the underlying merits in your decision.
  5. If at the close of all jurisdictional testimony and conceding the credibility of all that the appellant or petitioner has testified to, the appellant's appeal (or the petitioner's petition) should nonetheless be dismissed for lack of jurisdiction, this is a clear-cut case for summary judgment. For one example, if an employer-appellant testifies that the employer's appeal was delayed in filing because the person who routinely handles such matters was out of the office on vacation, the hearing should be terminated and summary judgment rendered. Of course, any hearing of a jurisdictional issue must address itself to proper mailing addresses.

    The Hearing Officer should take care to consider all of the timeliness rule exceptions incorporated in Commission Rule 32(i) prior to making summary judgment. The Hearing Officer should not make summary judgment if the appeal would be timely due to the deadline being tolled to the next business day. "Optional Holidays" should not be treated as "state holidays" for purposes of extending deadlines. However, skeleton crew days are considered "Official Holidays" and the deadline would be tolled if it fell on a skeleton crew day.
  6. The summary judgment authority described here will be among a Hearing Officer's discretionary powers. No Hearing Officer will be required to exercise such authority even in cases in which, from hindsight, it appears that summary judgment should have been rendered.
  7. Summary judgment authority does not extend to good cause to reopen issues under Commission Rule 16(5)(B) (see subchapter 318 of this handbook).
  8. The Hearing Officer also has authority to make summary judgment in work separation cases where the ruling was made on an incorrect last employing unit.

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318 Single-Issue "Good Cause" Hearings

  1. Cases involving the threshold issue of good cause to reopen under Commission Rule 16 will be scheduled for a preliminary hearing on that issue alone. These hearings normally will be conducted by telephone.
  2. If the Hearing Officer's review of the testimony/evidence in the record on the good cause issue leads to a conclusion that there was good cause for non-appearance, the case should be set for further hearing by the same Hearing Officer on the merits of the underlying issues on appeal.
  3. Where good cause for the prior non-appearance is found and the case is reset, the Hearing Officer should wait until the underlying issue(s) has been heard and then rule on all issues, including the Rule 16 petition, in one decision.
  4. If the Hearing Officer's review of the evidence in the record from the single-issue good cause hearing leads to a conclusion of no good cause to reopen, the Hearing Officer should issue a written decision on that issue alone and no hearing on the underlying issue itself should be set.
  5. The term "single-issue" hearing will include cases in which there may be two issues, the timeliness of the petition to reopen and whether there was good cause to reopen. If there is an original timeliness issue involved, that issue should also be covered in the single-issue hearing. In effect, the object of the single-issue hearing is to adjudicate all jurisdictional issues before the underlying issue on appeal.
  6. Keep in mind that the parties to the underlying issue will also be parties to the threshold issue of good cause. Accordingly, the nonpetitioning party will be invited to the "single-issue" hearing on the petitioner's petition to reopen and will be entitled to present and examine witnesses, etc. However, as many nonpetitioners have an interest in the underlying issue only, and not the good cause issue as such, the new hearing notice will make it clear that, if good cause to reopen is found, a further hearing will be set to address the merits of the underlying issue(s).
  7. To promote the end of expeditiousness, the Hearing Officer should abbreviate his/her introductory remarks in such hearings. It will still be necessary to identify the case and Hearing Officer, the time and place of the hearing, and the appearances by the parties. The Rule 16 issue should also be briefly described. It will not be necessary to include introductory remarks regarding the underlying issues in the case nor to offer any detailed description of hearing procedure other than simply to state that both parties will have an opportunity to offer testimony and evidence or ask questions of witnesses during the hearing.
  8. The Hearing Officer should not announce the decision on the good cause issue at the conclusion of the special hearing on that issue. He or she should simply advise the parties that he/she will review the evidence in the record and if it is concluded that the petitioner did not have good cause for nonappearance, a written decision so ruling will be issued to the parties. On the other hand, if it is concluded that there was good cause for nonappearance, the next notice the parties will receive will be a notice of hearing for the hearing on the underlying issue in the case. In such a situation, the decision on the good cause issue will be included in the written decision ultimately issued by the Hearing Officer.
  9. When there has been more than one previous non-appearance, the Hearing Officer should address this problem differently depending on whether the case involves consecutive nonappearances by the present petitioner or alternating nonappearances by the parties. If the case involves consecutive nonappearances by the present petitioner, the written decision should address the cause for each such nonappearance, working backward in time from the most recent nonappearance, until the Hearing Officer encounters a nonappearance by the petitioner which is without good cause. If this occurs, the Hearing Officer should question the petitioner regarding earlier nonappearances but there will be no need to address the merits of any earlier nonappearance in the written denial decision.

    If, on the other hand, the case involves alternating nonappearances by the parties, the Hearing Officer should address only the most recent nonappearance. As to the nonpetitioner's nonappearance immediately preceding the petitioner's most recent nonappearance, the Hearing Officer should regard the issue of good cause for that nonappearance as being a closed issue already ruled on by another Hearing Officer which will not be disturbed. The only exceptions to this latter directive will be instances in which (1) the petitioner specifically indicates a desire to challenge the prior reopening in the case based on firsthand testimony or evidence contradicting that previously offered by the other party as reflected in the earlier Hearing Officer's FINDINGS OF FACT on good cause or (2) the petitioner establishes that the prior ruling on good cause is directly contrary to a specific Commission precedent on good cause. There should be relatively few instances in which either of these occurs.
  10. There may be cases where good cause has been established, but the non-petitioner failed to appear at the single-issue good cause hearing and now wishes to contest the good cause ruling. The tape from the good cause hearing will not be replayed; however, the non-petitioning party may have a copy of that tape. It should be explained that good cause is not an issue at the present hearing, and that all issues will be addressed in the appeal decision. If the party disagrees with the decision, they may file for further review by the Commission.
  11. Good cause to reopen issues under Commission Rule 16(5)(B) are not subject to the exercise of summary judgment, described in subchapter 317 of this handbook.

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319 Sample Questions for Certain Hearing Fact Patterns

  1. Discharge As A Result Of Cancellation Of Insurance.

    Fact Pattern: Commercial Truck Driver discharged when employer is notified by insurance carrier that claimant is no longer insurable.

    Law: Section 207.044

    Precedents: see MC 490.20

    what are the DOT regulations
    was there a change in the insurance carrier
    was insurance required to perform his job
    was other work available and made known to the claimant
    was the claimant given the opportunity to get his own insurance
    did the employer check into paying premium rates
    what was the claimant's most recent ticket and what was the disposition
    when did the violation occur
    was the claimant required to inform the employer of any violations (on or off the job)
    did claimant notify employer of event
    when did employer find out about event
    when did employer find out about the non-insurability
    was the denial of insurability due to an on the job violation
    what are the facts and circumstances of the violation
    who was at fault in any violation
    was a citation issued
    were there 3 occurrences of no-fault accident
    does the employer have an accident review committee
    was claimant advised to maintain insurability
    was the claimant told off duty violations could jeopardize his job
    was claimant aware that failure to contest tickets could jeopardize his job
    what are the particulars of the insurance policy
    were there any prior warnings by the employer to the claimant
    did the employer check the claimant's driving record before hiring him
    did the claimant reveal his driving record at the time of hire

  2. Discharge For Manner Of Performing Work/Carelessness Or Negligence/Mere Inability.

    Fact Pattern: Claimant, a convenience store cashier, was discharged for violation of employer policy re: acceptable register shortages/overages during a 6 month period.

    Law: Section 207.044

    Precedents: MC 300.05; MC 300.25; MC 300.40

    what was employer's policy
    was claimant aware of policy
    progressive disciplinary policy (was it followed)
    did employer have cash control procedures
    was claimant given training by employer
    did claimant follow employer's cash control procedures
    prior incidents with claimant/prior warnings
    was there a demonstrated prior ability to meet standards
    anyone else have access to register
    what steps were taken to determination it was claimant's fault
    does the register compute change or sales tax
    was the register checked to see if it was malfunctioning
    how often are audits made
    was claimant allowed to observe audit
    was it a shortage or an overage
    how much short/over
    was the shortage/overage ever discovered
    what was opening amount
    was claimant given opportunity to explain discrepancy
    frequency of customer transactions with claimant (customer volume)
    what were the other responsibilities of claimant at the time
    had those duties recently been increased or changed
    were other workers present to help claimant
    did employer accept credit cards, checks, food stamps, different currencies etc.
    date of last incident
    details of last incident
    when and how did employer discover last violation
    admissions or witnesses
    was there improvement after claimant left

  3. Discharge For Altercation With Co-Worker.

    Fact Pattern: Claimant discharged for fighting with co-worker.

    Law: Section 207.044

    Precedents: see MC 390.20PDF

    Was claimant aware fighting could lead to discharge?
    who started the fight
    was it with a coworker or supervisor
    when did the fight occur
    where did the fight occur
    were there any witnesses (if so, who)
    did claimant attempt to avoid the conflict
    what was the nature of the conflict
    was any weapon used
    what action did the employer take toward the other participant
    were criminal charges filed
    was anyone injured or any property damage
    prior incidents and warnings
    events leading to the conflict
    did the claimant escalate the conflict
    did claimant try to resolve conflict in any other way
    physical description of the participants in the conflict
    was the claimant's action in self defense

  4. Discharge For Violation Of Law/Discharge For Notoriety Of Conduct.

    Fact Pattern: Claimant discharged when employer learned claimant had pleaded guilty to criminal charges for off-duty conduct

    Law: Section 207.044

    Precedents: MC 490.00 et.seq.;

    what was company policy regarding criminal convictions
    what was the charge
    when did incident occur
    did the claimant plead guilty and when
    what was the sentence
    was the sentence deferred adjudication
    did claimant inform employer
    was claimant required to divulge the information
    what was claimant's job
    could charges relate to claimant's job duties
    was discharge required by law (licensing requirements)
    was crime connected to claimant's job
    was claimant arrested at work
    was claimant absent
    how did conviction affect claimant's job
    why was claimant discharged
    adverse publicity to employer (small town/large city)
    prior occurrences
    was employer aware of charge at time of hire
    Did the claimant do what he is accused of doing?
    What were the events that lead to the charges?

  5. Discharge For Failure Of Drug Test.

    Fact Pattern: Employer summarily discharged claimant upon learning claimant failed a drug test.

    Law: Section 207.044

    Precedents: MC 485.46

    What was claimant's job?
    What was the employer's drug policy?
    Was the policy in writing?
    Was claimant aware of the policy?
    Is there documented evidence of the claimant's knowledge of
    the policy?
    Was the test random?
    Did the claimant consent to the test?
    Is there documented evidence of the claimant's consent?
    Was it the claimant's sample?
    Was the chain of custody maintained?
    Was the laboratory certified?
    Was the initial positive conformed with a GC/MS test?
    Was the claimant confronted with the test results?
    Did the claimant admit drug use to the employer?
    Has the claimant used illegal drugs since coming to work for the employer?
    If the claimant was taking controlled substance, did he have a prescription?

  6. Discharge For Inability To Meet Standards.

    Fact Pattern: Claimant was discharged at the end of her 90-day probationary period because her work did not satisfy the employer's performance expectations.

    Law: Section 207.044

    Precedents: MC 300.05; MC 300.25

    was claimant informed she was on probation
    what were the terms of the probation
    is progressive discipline required
    had the claimant ever been warned that she was not meeting expectations
    did performance improve
    was she advised of the standards or expectations when hired
    how is performance measured
    was this disciplinary probation or initial hiring probation
    how did she not meet standards
    what were the standards or expectations
    did the claimant's job change
    were other employees with like duties meeting standards and expectations
    was there a last incident or just the end of the probationary period
    did her work ever meet the employer's expectations
    did claimant perform to best of her ability (if so, was work acceptable: if not, why not)
    did the claimant misrepresent her capabilities
    did she refuse to do the job
    were there other reasons that prevented her from doing her job (attendance, training)
    how difficult was the task
    what reason did the claimant give the employer for not meeting standards?

  7. Discharge For Falsification Of Record.

    Fact Pattern: Claimant discharged because, several weeks earlier, he had incorrectly listed his out-of-pocket expenses on a company travel voucher.

    Law: Section 207.044

    Precedents: MC 140.05; MC 140.15; MC 140.20; MC 140.25; MC 140.30

    what is company policy regarding documents/vouchers
    what is employer's disciplinary policy and was it followed
    was claimant aware of employer policies
    when did employer learn of incorrect voucher
    why did employer wait several weeks before discharge
    what was incorrect
    when were the incorrect expenses listed
    how was it discovered
    was voucher approved originally (if so, why and by whom)
    why did the claimant list expenses wrong (intent)
    how incorrect was the reporting (and who benefited and to what extent)
    had claimant filled out vouchers before
    had claimant received instruction on filling out vouchers
    prior occurrences (and action taken)
    any admissions
    are the vouchers present
    did employer ask for explanation by claimant
    was the voucher paid by employer (if so, when)
    did claimant reimburse employer for any losses

  8. Discharge For Absence.

    Fact Pattern: Claimant discharged for excessive absenteeism.

    Law: Section 207.044

    Precedents: MC 15.05; MC 15.10

    what was the reason for the last absence
    did the claimant know job was in jeopardy due to attendance?
    did the claimant know the last absence would put job at risk?
    could the claimant have come to work?
    would the claimant have come to work if knew would be fired?
    did the claimant notify the employer?
    was the notification according to accepted practice?
    If claimant did not notify, why not?
    why did claimant not personally notify employer (if applicable)
    was it acceptable for others to notify employer (if applicable)
    prior absences and/or warnings (if not, why was last incident excessive)
    employer policy on absenteeism and notification
    was claimant required to notify a specific person
    was progressive disciplinary policy, if any, followed
    was claimant aware of policy (if applicable)

  9. Discharge For Refusal To Transfer To Another Location.

    Fact Pattern: Claimant discharged when she refused to transfer to one of employer's other branch offices.

    Law: Section 207.044

    Precedents: MC 255.302

    where was she currently working
    where was new location
    where did claimant live
    what would be the change in commuting distance
    employer's policy on relocation
    was claimant aware of policy
    when hired, was claimant told she might be relocated
    was claimant advised of risk of discharge for refusal to transfer
    had claimant ever relocated for employer in past
    how long had she been at present location
    was it for the same type work, hours pay, benefits, etc.
    any extra compensation for relocating
    would employer cover relocation costs
    reason for transfer
    when was transfer to take effect
    were there other options to transfer
    why did claimant refuse

  10. Relations With Co-Workers/Ability To Meet Standards/ Working Condition Quit/Quit In Anticipation Of Discharge.

    Fact Pattern: Claimant quits due to conflict with co-workers and verbal harassment by co-workers.

    Law: Section 207.045

    Precedents: See VL 135.35 ; VL 210.00; VL 515.05; possibly MC 390.20; possibly MC 300.05; possibly MC 300.25

    Was there any specific event that provoked the quit?
    what was the final incident that caused claimant to quit
    Did claimant tell the employer about this event?
    Did the employer offer to do something about it?
    How long had the harassment/conflict been going on?
    how long did claimant work under these conditions (if long, why did claimant stay)
    had claimant complained to employer previously (if so, when)
    did employer take corrective action
    was there any improvement
    who were the co-workers (was it a supervisor)
    did claimant ask for a transfer
    could claimant work without interacting with the co-workers
    any prior discipline for conflict with or harassment of co-workers?

  11. Working Conditions Quit/Medically Verified Quit.

    Fact Pattern: Claimant quit because her work was adversely affecting her health.

    Law: Section 207.045; Section 207.045(d); Section 204.022(a)(5)

    Precedents: VL 235.05; VL 235.25; VL 505.15

    what were the conditions affecting her health
    how was her health affected
    how long was the claimant's health affected
    how long had she worked under those conditions before quitting
    was it a preexisting condition
    did the claimant consult a physician
    was physician's treatment plan followed
    was the claimant placed under any restrictions by her physician
    advised by a doctor to quit
    did claimant complain to the employer
    did claimant ask for transfer or light duty
    was a leave of absence available
    was alternative work available
    any doctor's statement/medical verification (at time of separation or at time of hearing)
    was claimant given a choice of quitting or being discharged
    were there possible alternate causes of the claimant's deteriorating health
    has claimant been released by doctor? What date?
    Any restrictions on release?
    Did claimant reapply when released?
    If not, why not?

  12. Quit Due To Reduction In Pay.

    Fact Pattern: Claimant quit when notified her pay would be reduced effective her next pay period.

    Law: Section 207.45

    Precedents: VL 500.35

    how much was claimant earning before reduction
    how much was claimant to be earning after reduction (greater than 20 % reduction)
    was there also going to be a reduction or addition of benefits
    was claimant guaranteed a specific wage
    when was next pay period
    how much longer could claimant have worked before reduction
    any change in workload, hours, responsibilities
    why was pay being reduced
    was reduction effective for all employees
    did claimant request reduction
    was other work available
    if reduced as discipline, what was disciplinary policy
    was reduction permanent/temporary (how long)
    had claimant been advised previously that pay might be reduced in future
    had claimant's pay been reduced in the past
    did claimant complain to employer
    did claimant agree to the reduction
    Did the claimant work after the reduction and for how long?

  13. Wage Reduction Quit/Proximity Of Incident To Resignation.

    Fact Pattern: As an economy measure, employer reduces claimant's weekly salary; 3 weeks later claimant quits, alleging wage reduction as motive.

    Law: Section 207.045

    Precedents: VL 500.35; VL 385.00

    what was the claimant's prior wage
    what was the reduced wage
    why work for 3 weeks
    were there any past reductions
    what was claimant told about the reduction
    what did claimant say when told of reduction
    when was claimant told of reduction
    when was reduction effective
    any other workers' pay reduced
    temporary or permanent reduction (if temp., how long)
    were hours or duties also reduced
    did claimant request reduction
    change in hiring agreement
    was other work available

  14. Temporary Placement Agency Separations.

    Fact Pattern: Claimant, an employee of a temporary help agency, was told by client company that his services were no longer needed.

    Law: Section 207.044; Section 207.45; amended but not recodified Section 5(a)

    Precedents: MC 135.30; VL 135.05; VL 495.00

    reason services were no longer needed
    who told claimant that services were no longer needed
    dates of assignment
    how much notice (more than 2 weeks)
    with whom did the claimant get the job
    when was claimant hired by temp. agency
    who did he think employer was (was claimant being payrolled only)
    was there a policy to contact employer for reassignment
    how was claimant made aware of the policy
    did employer advise claimant that failure to report could jeopardize right to benefits
    how often did claimant have to report
    did he report for reassignment
    when did claimant report for reassignment?
    To whom did the claimant speak when reported?
    Was the claimant offered further work when he reported?
    If so, what was the claimant offered?
    If declined, why did the claimant not accept the new assignment?
    does employer have a record of claimant contact
    was further work available

  15. Early Acceptance Of Resignation Separations/School Quit.

    Fact Pattern: Claimant tells employer he would be quitting to return to college and employer effectuates separation immediately by telling claimant to clock out and remove his personal belongings.

    Law: Section 207.044; Section 207.045; Section 207.052

    Precedents: VL and MC 135.25

    how much notice was given (greater than two weeks)
    did claimant give a specific date as last date of work
    when did school start
    is claimant in school presently (available for work)
    why did employer accept notice early
    any other reason for quitting
    could claimant have continued working on a part time basis
    did claimant check about possibility of part time work

  16. Quit Or Discharge/What Constitutes Discharge.

    Fact Pattern: Claimant failed to return to work after 3 day disciplinary suspension. She filed an initial claim instead.

    Law: Section 207.044; Section 207.045

    Precedents: MC 135.45

    why was she placed on suspension
    was it with/without pay and/or benefits
    why did claimant fail to report back
    what was claimant told about terms of suspension
    was she told when to report back
    were proper progressive disciplinary procedures followed
    was claimant going to be discharged (if so, what incident)
    prior warnings
    was there a union contract
    was there a grievance procedure to recover the 3 days suspension

  17. Quit Versus Discharge/Was Claimant Unemployed When Initial Claim Was Filed.

    Fact Pattern: At time of employer's annual two week shutdown, claimant and other similar workers are placed on vacation status, performing no work and with a recall date two weeks thereafter, and were issued vacation pay equivalent to two weeks pay for the period. Claimant filed an initial claim during the two week period.

    Law: Section 207.044; Section 207.045; Section 208.001

    Precedents: VL 495.00; TPU 80.20

    was there a continuation of benefits
    why did the claimant think he was unemployed
    had claimant been placed on vacation status with pay on other shutdowns
    common practice
    what was employer's policy regarding vacation
    was there a union contract providing for the vacation while shut down
    did claimant indicate the pay on his continued claims
    did claimant have right to take the vacation at another time
    was it accrued vacation
    did claimant go back to work (if not, why not)
    how much was the vacation pay
    were other benefits affected
    why was there a shut down (for whose benefit)

  18. Refusal To Accept or Apply For Suitable Work.

    Issue: whether the claimant failed without good cause to apply for or accept suitable work.

    Law Cite: Section 207.047 of the Act provides that an individual is disqualified for benefits if during the individual's current benefit year the individual failed, without good cause, to apply for available, suitable work when directed to do so by the Commission, or to accept suitable work offered to the individual, or to return to the individual's customary self-employment, if any, when directed to do so by the Commission. The disqualification continues until the individual has returned to employment and worked for six weeks, or earned wages equal to six times the individual's benefit amount.

    Section 207.008 of the Act provides that in determining whether work is suitable for an individual, the Commission shall consider the degree of risk involved to the individual's health, safety and morals at the place of performance of the work, the individual's physical fitness and previous training, the individual's experience and previous earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the work from the individual's residence.

    Notwithstanding any other provision of this Act, work is not suitable and benefits may not be denied under this Act to an otherwise eligible individual for refusing to accept new work if: (1) the position offered is vacant directly because of a strike, lockout, or other labor dispute; (2) the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or (3) as a condition of being employed, the individual is required to join a company union or to resign from or refrain from joining a bona fide labor organization.

    Questions:

    When did the claimant file his initial claim for benefits?
    What was the claimant told about job referrals and work refusal when he filed the initial claim?
    (You may need to get information from the claimstaking script or TWC website format. Claimants who file on-line or through the Tele-center are specifically told about their responsibilities regarding work refusals.)

    What was the claimant told would happen if he didn't apply for or accept suitable work?

    Commission records reflect we mailed the claimant a booklet from the TWC entitled, "Unemployment Insurance Benefits Information" on _______________.
    Did the claimant read that booklet?
    What did the booklet say about the claimant applying for or accepting suitable work? (Different sections in the booklet address this issue. You can find the booklet on the agency's web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and then admit the pages into evidence during the hearing.)

    What type of work has the claimant done in the past?
    What type of work is he qualified to perform?
    What are the types of jobs the claimant will accept?
    What types of jobs is the claimant seeking?
    What is the salary he would accept?
    What are the hours the claimant is willing to work?
    Has the claimant had these hours, pay, and type of work in the past?
    What is the claimant's education?
    What is the length of the claimant's unemployment?

    (If the claimant was offered work) Was the claimant offered a job by ______ (company) on ________ (date)?
    What was the type of job offered?
    How long was the job supposed to last?
    Had the claimant done that type of work before?

    What were the hours offered?
    What was the salary offered?
    Where was the job site located?
    Where does the claimant live?
    Where was his last job located?
    Did the claimant accept it?
    If no, why not? Did the claimant notify the claims office/indicate on his claim certification for that week that he had refused work?
    What was the reason he gave the company for not accepting the offer?

    (If the claimant was given a referral to work) Was the claimant given a referral by the TWC to contact ______ (company)?
    When?
    What was the referral for?
    Did the claimant contact the company?
    If yes, when? How did he contact the company? To whom did he speak? What was the outcome of the discussion? Did he complete a job application?
    If no, why not?

    (For suitable work referrals, you may need to obtain testimony from the person who gave the claimant the referral or from someone from the Tele-center or UI Policy and Support Services Department who can testify about the referral.)

    (For both situations, make sure you familiarize yourself with the fact-finding statements in the file, and if the claimant's testimony in the hearing conflicts with those statements, ask him about them and admit them into evidence.)

  19. Severance Pay Versus Wages In Lieu Of Notice.

    Fact Pattern: On the day prior to filing an initial claim, claimant was discharged and issued a check in an amount equal to two weeks pay.

    Issue: whether the claimant should be disqualified for the receipt of wages in lieu of notice.

    Law Cite: Section 207.049(a)(1) of the Act provides that an individual is disqualified for benefits for any benefit period for which the individual received remuneration in the form of wages in lieu of notice.

    Questions:

    Where did the claimant last work before filing for benefits?
    How long did he work there?
    What was his salary or pay rate?
    Was he discharged from his work there or did he quit?
    On what date was the claimant told he was being discharged?
    What was the claimant's last day of work?
    Was claimant given advance notice he was to be terminated on THAT day.
    Did the claimant receive any payments from the employer for any period after his last day?
    How much did he receive?
    What period did the payments cover?
    Were the payments based on length of service?
    Were the payments part of a contractual agreement between the claimant and the employer?
    Did the claimant sign a contract/release/agreement not to sue?
    What would the claimant have received had he not signed the contract/release/agreement not to sue?
    Were the payments for prior services?
    What did the employer say was the purpose of the payments?
    Was anything written on the payments themselves saying for what purpose they were being given?
    What was the employer's intent in giving this money to the claimant?
    Were the payments made to satisfy the WARN Act?

  20. Timeliness Of Appeal and Petition to Reopen.

    Issue: Whether the party filed a timely appeal/petition to reopen to an adverse determination/decision.

    IMPORTANT NOTE: You must enter the determination/decision appealed and the party's appeal/petition to reopen into evidence during the hearing.

    Law Cites: (Timeliness of Appeal) Section 212.053 of the Act provides that an examiner's determination is final for all purposes unless the claimant or the person, branch, or division for which the claimant last worked files an appeal from the determination not later than the 14th calendar day after the date such determination was mailed to the claimant's, person's, or branch's last known address as shown by Commission records.

    (Timeliness of Appeal for Chargeback Decisions) Section 204.025 of the Act provides that an examiner promptly shall decide the issues involved in a timely protest and shall mail a notice of the amount of the decision to the protesting employer. The examiner's decision becomes final 14 days from the date the examiner mails the notice unless before that date the employer mails to the Commission at Austin a written appeal from the examiner's decision.

    (Timeliness of Petition to Reopen) Commission Rule 16, 40 TAC 815.16, provides, in part, that if a party to an appeal shall fail to appear at the time and place designated for the hearing, the Appeal Tribunal may hear and record the evidence of the party present and the witnesses, if any, and shall proceed to decide the appeal on the basis of the record. Any party to the appeal who fails to appear at a hearing may, within fourteen days of the date the decision is mailed, petition for a new hearing before the Appeal Tribunal. Such petition shall be granted if it appears to the Appeal Tribunal that the petitioner showed good cause for his failure to appear at the hearing. In the event that an appeal to the Commission is filed before the filing of the petition for rehearing by the Appeal Tribunal, such appeal shall be referred to the Commission for review.

    See also Rule 32PDF on Timeliness.

    See also Rule 3PDF on Proper Addresses.

    Questions:

    State to what address the determination/decision was mailed. (You can obtain this information from the copy of the determination/decision in the file. If the determination is not in the file, you can order it during your pre-hearing review of the case by going to the CMCL screen in the mainframe Benefits system, selecting the determination you want to order by typing an S in the Action column and pressing enter, and then pressing the F2 key on the next screen. You must admit the determination/decision into evidence during the hearing.)

    Was that address the party's correct mailing address at the time the determination/decision was mailed?
    If yes, is that still the correct mailing address?
    If no, what was the correct mailing address at the time? Had the party notified the TWC that the address had changed? When? How? (If the claimant is the appealing party, you will need to check the CTAH screen in the mainframe Benefits system (or Claimant Info in the Appeals Benefits system) during your pre-hearing review of the case to see if the claimant filed any address changes. If the employer is the appealing party, you will need to check the CMDA screen in the mainframe Benefits system to see if the employer had a designated address for claims filing purposes. You will also need to check the employer's protest if it's in the file to see if the employer wrote in the address where it wanted the determination to be mailed. You may need to send these screen print-outs to the parties for the hearing, and you may need to admit into evidence the print-outs and the employer's protest during the hearing.)

    Did the party normally receive mail at the address to which the determination/decision was mailed?

    Did the party receive the determination/decision within a few days of the mailed date?
    If no, was the party having any trouble receiving its mail during that time? What kind of trouble? If the party didn't receive the determination/decision, how did it learn that an adverse determination/decision had been issued?

    If yes, did the party receive the determination/decision at the address to which it was mailed? If the party received the determination/decision at a different address, at what address was it received?

    When did the party receive the determination/decision? (If the party is alleging delayed delivery.)

    Did the party read the determination/decision?

    Did the party understand it?

    How many days did the party think it had to appeal/petition to reopen?

    When did the party prepare the appeal/petition to reopen?

    Did the party fax the appeal/petition to reopen? Who faxed it? When? Did anyone else observe this person faxing the appeal/petition? To what number was the appeal/petition faxed? Did the party keep a fax confirmation sheet? (You may need to obtain the confirmation sheet and admit it into evidence.)

    Did the party mail the appeal/petition? When?
    Where did the party mail it? At a mailbox or a post office?
    Was it mailed on the postmark date?
    Where did the party mail it? At a mailbox or a post office?
    Did the party see the postal worker hand date the envelope?
    Did the witness testifying mail it himself/herself or did someone else mail it?
    Is the mail stamped out of that particular city or does it go to another city to be stamped?

    (If the party appealing/petitioning is an employer/business) Establish the employer's mailing routine:
    Find out what time the employer generally mails correspondence.
    How does the employer mail: Does the person testifying mail correspondence or does he/she give it to someone else, like a secretary, to mail?
    How is the mail picked up? Does the USPS pick it up or does a company employee mail it?
    When is the mail picked up?

    Does the person testifying know when the mail was picked up on the particular day the appeal/petition was mailed? When? Did the person see it being picked up?

    If the appeal/petition was hand delivered, on what date was it delivered? To what address? To whom was it delivered?
    If party is alleging non-receipt:

    Who received the mail at that location
    Who opens the mail
    How is the mail handled
    If claimant, how many persons get mail there?
    Did claimant ask others if they saw the correspondence?
    If employer, how is the mail routed?
    Could it have been misdirected to another company department?

    Note: The AT can take jurisdiction on an untimely appeal to an open period ineligibility fourteen days prior to the date of the appeal. However, if this applies, the ineligibility cannot be closed any earlier than the Saturday of the week in which the AT has jurisdiction.

  21. Timeliness of Protest.

    Issues: Whether the employer filed a timely protest to the notice of the initial claim
    or
    Whether the employer filed a timely protest to the Notice of Maximum Potential Chargeback.

    IMPORTANT NOTE: You must enter the employer's protest into evidence during the hearing.

    Law Cites: (Timeliness of Protest to the IC) Section 208.004 of the Act provides that a person who receives notice of the filing of an initial claim for benefits shall notify the Commission promptly of any facts known to the person that may adversely affect the claimant's right to benefits, or affect a charge to the person's account. If such person does not mail or otherwise deliver the notification to the Commission within 14 days (prior to September 1, 1997, 12 days) after the date notice of claim was mailed by the Commission, such person waives all rights in connection with the claim, including rights under Subchapter B, Chapter 204, other than rights relating to a clerical or machine error as to the amount of the person's chargeback or maximum potential chargeback in connection with the claim for benefits.

    (Timeliness of Protest to the Notice of Maximum Potential Chargeback) Section 204.023 of the Act provides that the Commission shall mail to an employer a notice of the employer's maximum potential chargebacks when benefits are first paid if notice of an initial claim has not already been mailed to the employer under Section 208.002; and the employer's account is potentially chargeable with benefits as a result of the initial claim and payment of benefits.

    Section 204.024 of the Act provides that an employer must mail to the Commission at Austin a protest no later than the 30th day after the date the notice was mailed (prior to September 1, 1999, no later than the 14th day) or the right to protest the chargeback is waived. The protest must include a statement of the facts supporting the grounds of the protest.

    Section 204.025 of the Act provides that an examiner promptly shall decide the issues involved in a timely protest and shall mail a notice of the amount of the decision to the protesting employer. The examiner's decision becomes final 14 days from the date the examiner mails the notice unless before that date the employer mails to the Commission at Austin a written appeal from the examiner's decision.

    Questions:

    State to what address the notice (of initial claim or Maximum Potential Chargeback) was mailed to the employer. (You can obtain this information from the copy of the notice if it's in the file. If it's not in the file, you will need to print the address from either the mainframe Benefits system or the Appeals Benefits system and send that print-out to the parties for the hearing. You must admit into evidence whatever you read from.)

    Was that the correct mailing address for the employer at the time the notice was mailed?
    If yes, is that still the employer's correct mailing address?
    If no, what was the employer's correct mailing address at the time? (During your pre-hearing review of the case, you will need to check to see if the employer had a designated address for claims filing/chargeback purposes. The mainframe Benefits screen to see if the employer had a designated address for claims filing purposes is CMDA. All chargeback notices will be mailed to the employer address shown in the Employer Master File (unless the employer has a SPECIAL ADDRESS - SPS.) The print-out of either of those screens may be another document you may need to send to the parties for the hearing and admit into evidence during the hearing.)

    Did the employer normally receive mail at the address to which the notice was mailed?
    Was that address the physical location of where the claimant last worked for the employer?

    Did the employer receive the notice?
    If no, was the employer having any trouble receiving its mail during that time? What kind of trouble? If the employer didn't receive the notice, how did the employer learn that a claim had been filed?

    If yes, did the employer receive the notice at the address to which it was mailed? If the employer received the notice at a different address, at what address did the employer receive the notice?

    When did the employer receive the notice? (Try to establish a specific date to see if the employer received it prior to the protest deadline.)

    Did the employer read the notice?
    Did the employer understand the notice?
    How many days did the employer think it had to protest?
    When did the employer prepare the protest?

    Did the employer fax the protest? Who faxed it? When? Did anyone else observe this person faxing the protest? To what number was the protest faxed? Did the employer keep a fax confirmation sheet? (You may need to obtain the confirmation sheet and admit it into evidence.)
    Did the employer mail the protest? When?
    Where did the employer mail it? At a mailbox or a post office?
    Did the employer see the postal worker hand date the envelope?
    Did the witness testifying mail it himself/herself or did someone else mail it?
    Is the mail stamped out of that particular city or does it go to another city to be stamped?

    (If a business) Establish the employer's mailing routine:
    Find out what time the employer generally mails correspondence.
    How does the employer mail: Does the person testifying mail correspondence or does he/she give it to someone else, like a secretary, to mail?
    How is the mail picked up? Does the USPS pick it up or does a company employee mail it?

    When is the mail picked up?
    Does the person testifying know when the mail was picked up on the particular day the protest was mailed? When? Did the person see it being picked up?

    If the protest was hand delivered, on what date was it delivered? To what address? To whom was it delivered?

    If the employer filed an oral protest, on what date did the employer protest?
    What number did the employer call?
    To whom did the employer speak?
    Did the employer get a confirmation number?
    What was the number?

    If the employer protested via the Internet, to what Web site address did the employer go?
    What did the employer do to access the system? (The Notice of UI Application would have contained an Access Key number the employer would have had to enter to access the internet response screens.)
    What information about this claimant did the employer provide?
    How did the employer submit its protest? (It would have had to click on "Submit.")
    On what date did the employer submit its protest?
    Did the employer receive a confirmation number?
    Did the employer print out the confirmation page (which would show the confirmation number and the date of the response)? (If the employer printed out the confirmation page and still has it, you may have to have the employer fax or mail you a copy. If the employer can fax you a copy during the hearing, try to obtain waiver from the claimant if the claimant doesn't have a fax machine and admit it as evidence. If the employer can't fax it to you, have him mail it to you and the claimant, continue the hearing, and admit it as evidence during the next hearing.)

    IMPORTANT NOTE: Timeliness of protest will not be an issue if an employer appeals a determination shown in either the NMDL screen of the mainframe Benefits system or in the Overview tab of the Appeals Benefits system that states "No Protest From Employer to Notice of Application for UI Benefits - Not Disqualified." This determination is issued when the employer timely protests the claim but does not raise any issue about whether the claimant should be entitled to receive unemployment benefits.

  22. Ability.

    Issue: whether the claimant was able to work.

    Law Cite: Section 207.021(a)(3) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual is able to work.

    Questions:

    At the time the claimant filed his claim for benefits, was he able to work?

    At any time after he filed the claim for benefits, did he get injured or become sick?

    When did the injury occur or the illness begin?

    What was the injury or illness?

    Did the claimant see a doctor?
    If no, why didn't he see a doctor?
    If yes, did the doctor ever say the claimant couldn't work?
    When could the claimant not work? Has the doctor released the claimant to work? As of when? Did the claimant obtain a doctor's statement saying he could work? Did he submit the doctor's statement for the hearing? (If the claimant has a statement that says he can work but hasn't sent it in for the hearing, you may need to continue the hearing in order to obtain it and admit it into evidence.)

  23. Alternate Base Period.

    Issue: Whether a claimant is entitled to use an alternate base period to determine his monetary eligibility for benefits.

    (The claimant's request to use an alternate base period will be disallowed if the claimant filed his/her initial claim more than 24 months after the date the illness, injury, disability, or pregnancy began or occurred.)

    Law Cite: Section 201.011(1) of the Act provides that "Base period" means:

    1. the four consecutive completed calendar quarters, prescribed by the commission, in the five consecutive completed calendar quarters preceding the first day of an individual's benefit year; or

    2. for an individual precluded because of a medically verifiable injury or illness from working during a major part of a calendar quarter of the period that would otherwise be the individual's base period under Paragraph A, the first four calendar quarters of the five consecutive calendar quarters preceding the calendar quarter in which the illness began or the injury occurred if the individual files an initial claim for benefits not later than 24 months after the date on which the individual's injury or illness began or occurred.

    Questions:

    Prior to filing the initial claim, had the claimant suffered/experienced an injury, illness, disability, or pregnancy?
    When did the injury, etc. begin?
    If it was an injury, was it an on-the-job injury?
    What type of injury was it?
    If it was an illness or other disability, what type of illness or disability was it?
    How did it affect the claimant from working?
    Did the claimant see a doctor?
    Was the claimant under a doctor's care? If yes, how long?
    Was the claimant receiving worker's compensation? If yes, from when to when?
    What was the effective date of the claimant's initial claim?
    Why did the claimant wait so long to file the initial claim (between the date of the injury, illness, etc. and the actual date he/she filed the initial claim)?
    Did the claimant's medical condition keep the claimant from working during any part of the base period?
    If so, what part?

  24. Attending School Availability.

    Issue: whether the claimant was available for full-time work.

    Law Cite: Section 207.021(a)(4) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual is available for work.

    Questions: (These questions can also be adapted for a hearing on the issue of whether the claimant is restricting his availability by demanding a higher wage than that available in his labor market.)

    When did the claimant file his initial claim for benefits?
    Was he told at that time that in order to be eligible for benefits, he would be required to be available for full-time work?
    Was he told what might happen if he was not available for full-time work? What was he told?

    Did he receive in the mail a booklet from the TWC entitled "Unemployment Insurance Benefits Information"?

    When did he receive it? (You may need to check to see when the booklet was mailed to the claimant and to what address it was mailed. You can find this information by checking the CMCL screen in the mainframe Benefits system or by checking the Correspondence tab in the Appeals Benefits system.)

    Did the claimant read that booklet?
    What did the booklet say about the claimant's availability for work?

    What did the booklet say would happen if the claimant was not available for full-time work? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and then admit the pages into evidence during the hearing.)

    Fact finding statements should be entered and claimant questioned about the answers (was this information accurate at the time of the statement.)
    The claimant may have changed his mind since then.

    Is the claimant or was the claimant attending school while filing for benefits?
    When did the claimant start school?
    When does school end?
    When is/was the claimant attending school? (hours of the day and days of the week)
    What school?
    Can the claimant change his schedule?
    If yes, to what days and hours?
    Is the claimant willing to change his schedule?
    If yes, how long has he been willing to change it?
    If no, why not?
    Is the claimant willing to quit school in order to accept a full-time job?
    If yes, how long has he been willing to do this? (If the fact-finding statement the claimant gave during the initial investigation conflicts with the testimony he's giving in the hearing, remember to ask the claimant about the prior statement and admit it into evidence during the hearing.)
    If no, why not?

    What types of jobs is the claimant qualified to perform?
    Does the claimant have any experience or training for those types of jobs?
    What are the usual days and hours of work for those types of jobs?

    For what types of jobs is the claimant looking?
    When is the claimant available for work? (hours of the day and days of the week)

    (If the claimant is restricting the days or hours he is available for work, you will need to make arrangements in advance of the hearing to obtain testimony during your hearing from an expert in the claimant's labor market. To find someone in the claimant's labor market, you can check the BPCF screen in the mainframe Benefits system. In the lower right corner, you will find the telephone number to the employment services office the system thinks is the closest to the claimant. Call that number to see if you can arrange for someone there to provide labor market information in your hearing. This person will need to present testimony about:

    - his or her qualifications to present testimony about the claimant's labor market (if he or she is familiar with the labor market and how he or she became familiar)
    - the usual days and hours of work for the types of jobs the claimant is seeking
    - whether those types of jobs are available in the claimant's labor market area
    - whether, given the days and hours the claimant is attending school, the claimant would be likely to find a full-time job in the area.)

  25. Child Support.

    Issue: whether the claimant has child support obligations which are being enforced pursuant to a plan described by Section 454 of the Social Security Act that has been approved by the Secretary of Health and Human Services under Part D, Title IV, of the Security Act and are properly deductible from unemployment insurance benefits.

    Law Cite: Section 207.093(a) of the Act provides that the commission shall withhold from the benefits payable to an individual that owes a child support obligation (1) an amount equal to any amount required to be withheld under legal process properly served on the commission; if Subdivision (1) does not apply, the amount determined under an agreement submitted to the commission under Section 454(20)(B)(I) of the Social Security Act (42 U.S.C. Section 654) by the state or local child support enforcement agency; or (3) if neither Subdivision (1) or (2) applies, the amount the individual specifies to the commission to be withheld.

    Questions:

    Has the claimant been instructed by court order to pay child support?
    When was that court order made/entered?
    When was the claimant supposed to begin paying the child support?
    How much was he instructed to pay?
    How often was he supposed to pay?
    Have there been any subsequent court orders which have changed the amount of child support the claimant was ordered to pay?
    When was each subsequent court order made/entered?
    What was the amount he was required to pay?
    When did those changes go into effect?

    (Make sure you have a copy of the court order. You will need to admit this as evidence during the hearing.

  26. Excessive Earnings.

    Issue: whether the claimant was totally or partially unemployed.

    Law Cites: Section 201.091(a) of the Act provides that an individual is totally unemployed in a benefit period during which the individual does not perform services for wages in excess of the greater of: (1) $5.00; or (2) 25 percent of the benefit amount.

    Section 201.091(b) of the Act provides that an individual is partially unemployed in a benefit period of less than full-time work if the individual's wages payable for that benefit period are less than the sum of the benefit amount the individual would be entitled to receive if the individual was totally unemployed; and the greater of (1) $5.00; or (2) 25 percent of the benefit amount.

    Section 201.091(d) of the Act provides that, notwithstanding Subsection (b), an individual is not partially unemployed for a benefit period in which the individual's working hours are reduced by the individual's employer as a result of misconduct connected with the work on the part of the individual. Such limitation will be effective for a maximum of four (4) weeks from the effective date of such a reduction in hours. (Section 201.091(d) of the Act applies only in case where the initial claim is filed on or after September 1, 1997.)

    Questions:

    When did the claimant file his claim for benefits?
    Since filing his claim, has the claimant worked anywhere else?
    Where has he worked?
    When did he begin working there?
    What did he do there?
    How long did he work there?

    Is he still currently working there? (If not, why is he no longer working there? You may need to create a case for the tele-center to adjudicate if the claimant is no longer working there and the tele-center has not adjudicated the separation.)

    How much was the claimant paid?
    When was the claimant paid? (per week, per month, etc.)
    How was he paid? (check, cash, etc.)
    For what period of time did each paycheck cover?

    What did the claimant earn during each week in question?

    What is the claimant's weekly benefit amount? (You can obtain this information by looking at the MDCW screen in the Benefits system or by looking at the Monetary tab in the Appeals Benefits system. You might want to send a print-out of one of these screens to the claimant prior to the hearing and admit it as evidence during the hearing if the claimant does not remember his weekly benefit amount since you'll need to make a fact-finding about the WBA in your decision.)

    IMPORTANT NOTES: A claimant can earn up to 125% of his weekly benefit amount during a claim week and still be eligible to receive partial benefits for that claim week. Take 25% of the weekly benefit amount and add it to the weekly benefit amount. You can also arrive at this figure by multiplying the weekly benefit amount by 1.25. If the claimant earned more than that amount during each week in question, he will not be eligible to receive any benefits for those weeks. Please note that you should not use either of these sections of law to invalidate an initial or additional claim solely on the basis that the claimant earned more than 125% of his weekly benefit amount the same week he filed for benefits (See Appeal No. 80-2881-CA-0781 in TPU 20.10 and Appeal No. 853-CA-73 in TPU 80.15). For example, let's say you have a claimant who worked full-time shifts Monday through Thursday of his last week of employment and was told at the end of the day on Thursday that he was being laid off that day. The following day he filed his initial claim for benefits. Even if the claimant earned more than 125% of his weekly benefit amount that week, he still filed a valid initial claim since he was unemployed on the day he actually filed his claim. He'll just receive a determination saying he had excessive earnings and is not eligible to receive any benefits for that week.

  27. Failure To Register For Work.

    Issue: whether the claimant registered for work.

    Law Cite: Section 207.021(a)(1) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual has registered for work at an employment office and has continued to report to the employment office as required by rules adopted by the Commission.

    IMPORTANT NOTES: These determinations are misnamed. What you will see on the mainframe Benefits and Appeals Benefits screens is "Availability - Failed to Register for Work." These determinations did not rule on the claimant's availability. They ruled only on whether or not the claimant registered for work with the Commission and if he did so in a timely manner. The section of law used in the determination is 207.021(a)(1), which is the section of law for reporting to the claims office and registering for work. The section of law which rules on a claimant's availability for full-time work is 207.021(a)(4); this section is not used in a registering for work determination so availability should not be covered in the hearing or in your decision. If the hearing notice shows availability as an issue to be covered, double check the NMDL screen in the mainframe Benefits system or the Overview tab in the Appeals Benefits system to see if there is another determination correctly ruling on availability. If there is not, let the parties know that issue was erroneously included on the hearing notice and that it will not be covered in the hearing or in the decision.

    Generally, a person who files an IC must also register for work so the Commission can help them find a job unless they are exempted by Commission Rule 28. Currently, any claimant who files a new IC is also registered in Work In Texas by the system and no determination is issued holding the claimant ineligible. The registration issue only comes up when the claimant lives out of state or if there is an appeal on an older claim prior to the time when work registration was automatic.

    If the hearing officer gets an older case, the hearing officer may need to check and see if the claimant registered. Before duel system filing/registering, each claimant had to complete their own work registration by going to a Workforce office or registering with Work In Texas on line. Claimants were told to register at the time they filed their initial claim and it is in the Unemployment Insurance Benefits Information booklet they receive in the mail. When the claimant did not register within three business days, the system put an open period ineligibility on their claim. If the claimant registered after the ineligibility was imposed, the ineligibility was closed.

    The hearing officer will need to check the computer system to determine what date the claimant registered for work (if they have). Sometimes the claims examiner will include the date in their notes; sometimes they don't. To find the registration date, use the following steps:

    Go to internet, www.twc.state.tx.us, website. Click on work in Texas icon. Click workforce staff log-on, then enter userid (generally 3-digit id) and password. Click job seeker at top of next page. Then enter claimant SSN, and click search. Under Job Seeker Summary, you will see date registered for work. If you don't have SSN, can enter claimant's name, but several choices may come up. Then you can search for address or phone number of your specific claimant.

    On another note, you need to check to see if the Tele-center has issued any reversal determination. If a reversal is mailed within fourteen days from the date the original determination was mailed and prior to the appeal date, you don't have to take testimony on the issue. You should explain to the party that the issue has already been reversed, and you should issue a "moot" decision for that determination.

    You should also see whether a redetermination has been issued that closed the ineligibility. If it has been closed, this would need to be taken into account in developing the record and writing the decision.

    For a case in which Texas is the liable state but claimant now resides in another state, you should e-mail UI Central to inquire whether the claimant has registered for work in that state. You cannot access this information on the CMF or Benefits Inquiry, and it is not sufficient to merely accept the claimant's testimony. Unless subject to one of the work search exceptions under Commission Rule 28, such claimants must register for work with the employment security agency of the state in which they reside in order to meet the eligibility requirements of 207.021(a)(1).

    Questions:

    How did the claimant file his initial claim for benefits?
    (over phone, through website)
    The format advises claimant he/she must register for work.
    Does the claimant remeber reading to register for work? (if filed on web)
    What was the deadline by which he had to register?
    We mailed the claimant a blue book of UI information on _______.
    Did the claimant read that booklet?

    (The claimant would also have received a coversheet with that booklet that would have told him he had 7 days from the date the booklet was mailed to him to register for work.)
    Did the claimant read the coversheet? What did it say about registering for work?
    What did the booklet say about the claimant registering for work with the Commission? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and admit those pages into evidence during the hearing.)

    Did the claimant register for work?
    When?
    How did he register (in person or on-line)?
    If he registered in person, where did he register?
    Did he speak to someone? What was the person's name?
    Did he receive any confirmation showing he had registered?
    If he registered on-line, did he get a confirmation that his registration had been accepted?
    Did the Web site tell him to check back the next day to confirm that his registration had been processed/accepted?
    Did he check back the next day? If no, why not?
    Why didn't the claimant register by the deadline he was given?

  28. Failure To Participate In Reemployment Services.

    Issue: whether or not the claimant should be held ineligible for benefits for failure to participate in or complete reemployment services when referred.

    Law Cite: Section 207.021(a)(8) provides, in part, that an unemployed individual is eligible to receive benefits for a benefit period if the individual participates in reemployment services, such as a job search assistance service, if the individual has been determined, according to a profiling system established by the commission, to be likely to exhaust eligibility for regular benefits and to need those services to obtain new employment, unless (A) the individual has completed participation in such a service; or (B) there is reasonable cause, as determined by the commission, for the individual's failure to participate in those services.

    During your pre-hearing prep of the case, you will need to check the computer system to determine what date the profiling letter was mailed to the claimant, and the date he was supposed to report.

    These claimants are selected to participate in reemployment services because they meet a profile that indicates they may be unemployed long term. Usually, they are mailed a letter to report to the service center for reemployment services. This is a one day session where they receive helpful information about finding work. Some service centers allow claimants to participate by phone or on the internet. A claimant cannot refuse to go because the claimant does not think he needs it. If the claimant does not go, the claimant is held ineligible for the week of the appointment.

    If a claimant does not report for their session, this information is transmitted from Work in Texas to the claims system and it generates a fact finding statement. The "incident date" in the fact finding statement is the date of the claimant's appointment.

    To access more information in Work in Texas, pull up the claimant in the Job Seeker section.
    Click the ACCOUNT MAINTENANCE tab in the yellow to nav bar.
    Click the PROGRAM INFORMATION in the left nav bar.
    Click the VIEW RRES HISTORY link on the right-hand bottom corner of the page. The "Respond by date" is the date of the profiling appointment. The "Profiling date" is the date the letter was mailed to the claimant. The letter is mailed to the claimant address on his work application in Work in Texas. This address may be different from the address listed on his claim record. Prior to November, 2010, there was a record of the call-in on the mainframe in the correspondence list, but this is no longer the case.

    Questions:

    Did the claimant receive a letter from the TWC dated _____ telling him he needed to report for reemployment services?
    If yes, when did the claimant receive the letter?
    Did the claimant read the letter?
    What did the letter say?
    What date was he to report?
    Did he report as instructed?
    If yes, when? To whom did he speak? What did they discuss?
    If no, why not?
    If the claimant did not receive the letter, was the address to which the letter was mailed his correct mailing address? NOTE: The letter is mailed to the Work in Texas address rather than the claimant master file address.

    If the claimant moved, did he notify the TWC that he had moved?
    If yes, when? If no, why not?
    Was the claimant having any problems receiving his mail at that time? What kinds of problems?

    If the claimant was unable to report as instructed, did he call the number on the letter to try to reschedule?
    If yes, when? To whom did he speak?
    Was the activity rescheduled? For what date?
    If the activity was not rescheduled, why not?

    The reason for non-attendance of the profiling session should be addressed in the hearing and included in the decision. The written decision should state the reason for non-attendance and whether you are finding the claimant had "reasonable cause" or not for failure to participate.

  29. Filing Claim Certifications Late.

    Issue: Whether claims were filed in accordance with the regulations prescribed by the Commission.

    Law Cite: Section 207.021(a)(2) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual has made a claim for a benefit under Section 208.001.

    Section 208.001 of the Act provides, in part, that claims for benefits shall be made in accordance with rules adopted by the Commission.

    Commission Rule 22, 40 TAC 815.22, states, in part: (a) For adequate cause shown, the Commission may permit retroactive or backdated work registrations and may permit the filing of retroactive or backdated claims in order to prevent hardship or injustice. Such work registrations and claims shall have the same effect as though prepared and filed on the earlier date. In the event a request for backdating a claim is approved prior to the filing of such claim, a claimant must file the backdated claim within 60 days of the date the backdating was authorized in order for the claim to be valid.

    Questions:

    When did the claimant file his initial claim for benefits?
    Was he told at that time that he would be required to file claim certifications?
    How often was he told he would have to file his CCs?
    How was he told he was to file his CCs? (by phone, by mail)
    Was he told what might happen if he did not file his claims as instructed? What was he told?
    We mailed the claimant filing instructions on _______.
    (You may need to check to see when the instructions were mailed to the claimant and to what address they were mailed. You can find this information by checking the CMCL screen in the mainframe Benefits system or by checking the Correspondence tab in the Appeals Benefits system.)

    Did the claimant read those instructions?
    What did the instructions tell him he was to do? (You can't order the instructions that were sent to your particular claimant, but you can send a blank form to him for the hearing, have someone from the UI Policy and Support Services Department testify in the hearing about it, and then admit it into evidence. The instructions actually tell the claimant to call the Tele-Serv phone number listed every two weeks from a touch-tone telephone on his filing day to file his claim certifications. They also tell him that if he misses his scheduled day, he can still file his certification through Friday of the same week. They also warn the claimant that failure to file within the scheduled week may cause a delay or denial of benefits.)

    What was the claimant's filing day?
    Was he given information on what to do if he didn't file on his filing day? Could he file on other days?

    (TWC mails with the VRU Filing Instructions the Personal Identification Number (PIN) Guidelines. The guidelines tell the claimant how to set up his PIN number so that he can access the Tele-Serv system.)

    Did the claimant receive the PIN Guidelines?
    Did he set up his PIN number? (You can check the BPCH screen in the mainframe Benefits system or the Call History tab in the Appeals Benefits system to see all the calls the claimant made to the Tele-Serv system. PIN Update shows when the claimant set up his PIN.)

    Did he receive in the mail a booklet from the TWC entitled "Unemployment Insurance Benefits Information"?

    When did he receive it? (You may need to check to see when the booklet was mailed to the claimant and to what address it was mailed. You can find this information by checking the CMCL screen in the mainframe Benefits system or by checking the Correspondence tab in the Appeals Benefits system.)

    Did the claimant read that booklet?
    What did the booklet say about the filing claim certifications? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and then admit the pages into evidence during the hearing.)

    Did the claimant file his claim certification for the period from _____ through _____?
    If yes, when? (You can check the BPCH screen in the mainframe Benefits system or the Call History tab in the Appeals Benefits system to see all the calls the claimant made to the Tele-Serv system. CERTN SUCC - A means the certification was successfully filed. Since many times claimants cannot remember the exact dates they filed their CCs, it is always helpful to print off the applicable screens for the CCs at issue, send them to the claimant prior to the hearing, and admit them into evidence during the hearing.)

    (If the CC was not timely filed) When was the claimant supposed to have filed that CC?
    Why didn't he file it then?
    Had the claimant properly filed on time in the past?

  30. Fraud.

    Issues: Whether the claimant or someone on the claimant's behalf willfully failed to disclose, or misrepresented, material facts
    and
    Whether the claimant received benefits to which the claimant was not entitled.

    Law Cite: Section 214.003 of the Act provides that if, by willful nondisclosure or misrepresentation of a material fact, by the person or for the person by another, a person receives a benefit when a condition imposed for qualifying for the benefit is not fulfilled or the person is disqualified from receiving the benefit, the person forfeits the benefit received and right to a benefit that remains in the benefit year in which the nondisclosure or misrepresentation occurred. If a person attempts to obtain or increase a benefit by a nondisclosure or misrepresentation, the Commission may cancel the person's right to benefits that remain in the benefit year. A forfeiture or cancellation is effective only after the person has been afforded an opportunity for a fair hearing before the Commission or its duly designated representative.

    Section 214.002 of the Act provides that a person who has received an improper benefit is liable for the amount of the improper benefit. The commission may recover an improper benefit by deducting the amount of an improper benefit from any future benefits payable to the person, or collecting the amount of an improper benefit for the compensation fund. "Improper benefit" means the benefit obtained by a person because of the nondisclosure or misrepresentation by the person or by another of a material fact, without regard to whether the nondisclosure or misrepresentation was known or fraudulent; and while any condition for the person's qualifying was not fulfilled in the person's case; or the person was disqualified from receiving benefits.

    Questions:

    You will need to take some background information about the claimant:
    How old is he?
    What is his level of education?
    If he attended college, which college?
    Did he receive his degree?
    If yes, what type of degree?
    If no, how many years did he complete?
    Can he read and write?

    When did the claimant file his initial claim?
    Did he receive the Tele-Serv Filing Instructions that were mailed to him on ________?
    When did he receive them?

    Did he read them?
    Did he understand what the instructions said?
    What did those instructions say about reporting earnings when filing continued claims?

    Did the claimant receive the "Unemployment Insurance Benefits Information" booklet the TWC mailed to him on _______?
    When did he receive it?
    Did he read the booklet?
    Did he understand what it said?
    What does it say about reporting earnings when filing continued claims?
    What does the booklet say will happen if a claimant does not report his earnings?

    (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. It's always helpful to make copies of these pages and send them to the parties before the hearing and then admit the pages into evidence during the hearing.)

    Did the claimant work during the time he filed for unemployment from ______ through ______?
    Where did he work?
    How much was he paid during that time? Per hour? Per week?
    How many hours per week did he work?

    Do not ask the claimant if they want a postponement to hire an attorney. Do not ask the claimant if they are willing to pay the money back. Never advise a claimant they should ignore an overpayment as legal action may be taken if they fail to make restitution. Always check PCOL (overpayment list) on the mainframe to see if a Notice of Assessment has been served. The designations A06 or A11 indicate the NOA has been served. Once the Notice of Assessment has been served, the Appeal Tribunal no longer has jurisdiction and the appeal must be dismissed.

    Did he report his earnings on his continued claims? (Send to the parties copies of the earnings the claimant reported for the CCs in question. From the mainframe Benefits system, you can print off the BPCS screen or you can print off the responses for the individual claims by typing an R in the Action column to the left of the CC from the list on the BPCS screen and pressing enter. From the Appeals Benefits system, you can print the screen under the Certifications tab. Discuss these print outs with the claimant during the hearing and admit them into evidence to show what wage amounts he actually reported.)
    If the claimant did not report his earnings, why didn't he?
    If he was confused about what he should report, did he contact the TWC for clarification?
    If yes, when? To whom did he speak? What was he told?
    If no, why not?

    The question states, "Did you work or have earnings..." Since the claimant had worked those weeks, why did the claimant answer that question, "no??" ((There will be some fact-finding in the file from both the claimant and the employer, and there will be some wage information that our Fraud Prevention, Collections and Detection Department obtained from the employer during its investigation. Make sure you familiarize yourself with these statements so you can question the parties about any inconsistencies between the statements and what their testimony is in the hearing. You will need to admit the employer's wage information, and if you discuss the fact-finding statements, you will need to admit those into evidence as well.)

    Did the claimant receive benefits during the period of time from _____ through _____? (The BPCS and Certifications tab screens mentioned above will show how much in benefits he was paid for each claim week. Make sure you admit this into evidence.)
    How much did the claimant receive?
    Did he know he might not be entitled to receive those benefits?

    Recently, benefits have been paid through a debit account or by direct deposit. If the claimant contends that the claimant did not receive the benefits in the debit account, continue and get the debit records from the state office. Copies of the records should be mailed to the parties for a continuance, and the claimant should be confronted with the records. If the claimant is using direct deposit, continue and advise the claimant to submit his bank records as evidence. For older cases, the claimant might have been paid benefits by state warrants. Copies of those may be obtained from the state office.

  31. Incorrect Last Work.

    Issue: whether the claimant named his correct last work on his claim.

    Law Cite: Section 208.002 of the Act provides that the Commission shall mail a notice of the filing of an initial claim for benefits to the person for whom the claimant last worked before the effective date of the initial claim. If the person for whom the claimant last worked has more than one branch or division operating at different locations, the Commission shall mail the notice to the branch or division at which the claimant last worked. Mailing of a notice under this section to the correct address of the person, branch, or division for which the claimant last worked is notice of the claim to the person.

    Questions:

    When did the claimant file his claim for benefits? (Establish both the actual date of filing and the effective date of the claim. In the Appeals Benefits system, you can look under the Claim History tab to find the file dates for all the claims the claimant has filed.)

    Was he told at that time he needed to provide the name of the place where he last worked?
    What name/company did the claimant give at that time as the place where he last worked?
    When was the last day the claimant worked for that person/company?

    In between the last day the claimant worked for that person/company and the actual date he filed his claim, did he work anywhere else?
    Where did he work?
    When did he start working there?
    Is he still working there?
    If yes, how often does he work (days of the week)? What are his hours?
    If no, when was his last day?

    (If the claimant is still working at this job or was not separated from it until after he filed his claim, you will need to find out if the job was a regular full-time job to establish whether or not the claimant was even unemployed at the time he filed his claim. If the job was part-time work, you will need to establish whether it was regular part-time work or part-time, as-needed work. If the job was a regular part-time job where the claimant worked consistently from week to week and he worked there until after he filed his claim, it would not be his last work prior to filing his claim. However, if the job was an on-call, as needed job, the claimant would have been separated from work at the completion of every shift, and it would be his last work prior to filing his claim.)

    Why didn't the claimant name this person/company as the last place he worked when he filed his claim for benefits?

    You must get a statement regarding the reason so you can determine if the claimant's reason for giving the wrong last work is fraudulent. If you decide that the claimant was not intentionally misrepresenting where he last worked, you can authorize a backdated corrected claim. You should NOT tell the claimant to contact the tele-center and file a new claim. If you have the correct name and address of the last work, you should NOT void the claim. In that case, instruct UISS to change the name of the LEU and mail a new claim notice to the correct employer. The determination on separation and/or chargeback should be voided. You should make a ruling on the merits of any other ineligibilities associated with the appeal. If the information about the correct LEU is not available, the initial claim should be disallowed, and the determination on separation and/or chargeback should be voided. You should direct UISS to contact the claimant and take a backdated initial claim.

    However, if you decide that the claimant intentionally misrepresented where he last worked, don't tell him anything about backdating the claim. Your decision should disallow the initial claim, void the determination, and state why you are not authorizing a backdated claim. You should send an e-mail to our Fraud Prevention, Collections and Detection Department and explain the facts of your case and that the claimant may have intentionally misrepresented his last work so that that department can conduct a possible fraud investigation.

    If the claimant named the incorrect LEU on an AC or CC, the claim is voided under Section 207.021(a)(2) of the Act.

    In some cases, work as an independent contractor may be named as the last work on an initial claim. Care should be taken in these cases to carefully explain to parties (if appropriate) that the last work does not necessarily have to be in "employment". A few extra minutes of courteous explanation will help alleviate the employer's concerns about potental tax liability, may reduce stress levels at the hearing, and may prevent unnecessary future appeals.

  32. Non-Fraud Overpayment.

    Issues: Whether the claimant received benefits to which the claimant was not entitled.

    Law Cite: Section 214.002 of the Act provides that a person who has received an improper benefit is liable for the amount of the improper benefit. The commission may recover an improper benefit by deducting the amount of an improper benefit from any future benefits payable to the person, or collecting the amount of an improper benefit for the compensation fund. "Improper benefit" means the benefit obtained by a person because of the nondisclosure or misrepresentation by the person or by another of a material fact, without regard to whether the nondisclosure or misrepresentation was known or fraudulent; and while any condition for the person's qualifying was not fulfilled in the person's case; or the person was disqualified from receiving benefits.

    Questions:

    Did the claimant work during the time he filed for unemployment from _____ through ______?
    Where did he work?
    What type of work die he do there?
    How much was he paid during that time? Per hour? Per week?
    How many hours per week did he work?

    Did he report his earnings on his continued claims? (Send to the parties copies of the earnings the claimant reported for the CCs in question. From the mainframe Benefits system, you can print off the BPCS screen or you can print off the responses for the individual claims by typing an R in the Action column to the left of the CC from the list on the BPCS screen and pressing enter. From the Appeals Benefits system, you can print the screen under the Certifications tab. Discuss these print outs with the claimant during the hearing and admit them into evidence to show what wage amounts he actually reported.)

    If the claimant reported some earnings, ask him if the reported earnings are correct for the specific CCs in question. (If the employer's statement/wage information shows more earnings than the claimant reported, you will need to question the claimant and the employer about the employer's statement/wage information and admit it into evidence.)

    If there are earnings from more than one employer, a separate hearing is set for each employer. Most employer earning reports are made on-line. You can see the earnings reported by the employer by accessing the Benefit Payment control Earnings Audit screen (PCEA) on the mainframe.

    (There will be some fact-finding in the file from both the claimant and the employer, and there will be some wage information that our Fraud Prevention, Collections and Detection Department obtained from the employer during its investigation. Make sure you familiarize yourself with these statements so you can question the parties about any inconsistencies between the statements and what their testimony is in the hearing. You will need to admit the employer's wage information, and if you discuss the fact-finding statements, you will need to admit those into evidence as well.)

    Did the claimant receive benefits during the period of time from _____ through _____? (The BPCS and Certifications tab screens mentioned above will show how much in benefits he was paid for each claim week. Make sure you admit this into evidence.)

    Recently, benefits have been paid through a debit account or by direct deposit. If the claimant contends that the claimant did not receive the benefits in the debit account, continue and get the debit records from the state office. Copies of the records should be mailed to the parties for a continuance, and the claimant should be confronted with the records. If the claimant is using direct deposit, continue and advise the claimant to submit his bank records as evidence.

    For older cases, the claimant might have been paid benefits by state warrants. In such case, you should ask if the claimant cashed the benefits checks that were mailed to him? (If the claimant denies having received the checks, you will need to continue the hearing in order to obtain copies of the warrants, and you must send the copies to the parties for the continuance. At the continuance, you will need to discuss the warrants with the claimant and admit them into evidence.)

    Never advise a claimant they should ignore an overpayment as legal action may be taken if they fail to make restitution. Always check PCOL (overpayment list) on the mainframe to see if a Notice of Assessment has been served. The designations A06 or A11 indicate the NOA has been served. Once the Notice of Assessment has been served, the Appeal Tribunal no longer has jurisdiction and the appeal must be dismissed.

  33. Overpayment Due to a Monetary Redetermination.

    Issue: whether the claimant received benefits to which he was not entitled.

    Law Cite: Section 212.006 of the Act provides that benefits paid to a claimant that are not in accordance with the final determination of an examiner or decision of an Appeal Tribunal, the Commission, or a reviewing court shall be refunded by the claimant to the Commission, or in the discretion of the Commission, deducted from future benefits payable to the claimant under this Act.

    In determining whether the overpayment was the result of Commission error, please see the following precedent, which is found in Section MS 340.20 of the Appeals Policy and Precedent Manual:

    Appeal No. 90-12054-10-120190. The claimant was erroneously credited with base period wages from an employer for which the claimant never worked. The claimant immediately, and persistently thereafter, reported this error to her TEC local office. Nonetheless, the claimant continued to be issued weekly benefits in amounts reflecting the inclusion of the erroneous wage credits. These improper payments continued for more than five months until the claimant's entitlement was recalculated and an overpayment established. HELD: The Commission affirmed the deletion of the wage credits erroneously credited to the claimant's base period. However, the Commission voided the initial determination and the Appeal Tribunal decision ruling that the claimant was liable to repay the erroneously paid benefits under Section 6(b) (now codified as Section 212.006) of the Act, reasoning that Section 6(b) (now codified as Section 212.006) applies only to situations in which an overpayment arises because a determination or decision is reversed on appeal through the administrative process. There was no such reversal in this case. The Commission also held that Section 16(d) (now codified as Section 214.002) of the Act did not apply because, in this instance, there was no nondisclosure or misrepresentation by the claimant or by another and because the overpayment here was caused solely by the Texas Employment Commission. The Commission cited Martinez v. TEC and Mollinedo v. TEC in support of this holding regarding the inapplicability of Section 16(d) (now codified as 214.002) of the Act.

    These overpayments typically occur as a result of a monetary redetermination that reduced the claimant's entitlement to benefits. In some cases, duplicate wages were corrected or the employer may have filed a corrected report of wages. Since the claimant has already been paid based on the previous monetary determination, an overpayment is created. Since the change in wage credits caused the overpayment, these cases are normally set for both the overpayment and wage credit issues. Generally, if the monetary redetermination is correct, then the resulting overpayment would be affirmed. However, if the claimant presents evidence to establish that the claimant had properly reported the error to the Commission, then the precedent in Appeal No. 90-12054-10-120190 might be applicable.

    Questions:

    After the claimant filed his claim, did he receive a Statement of Regular UI Benefits dated ____ in the mail? (This statement will show the wages the claimant had in his base period when he filed his IC and that were used to calculate what his weekly benefit amount and maximum benefit amount would be. The monetary determination is found in history on the mainframe through MDMH. Select the initial determination by entering "S" and pressing enter. It's helpful to send it to the claimant prior to hearing so you can discuss it with him during the hearing and admit it into evidence.)

    Did the claimant read the statement when he received it?
    Did he agree with the wages shown?
    If he disagreed with some wages, what did he disagree with?
    If the print-out showed an employer the claimant never worked for or showed wages the claimant never earned, did he notify the TWC of the error?
    If yes, when? To whom did he speak? What did he tell the person? What did the TWC person say he would do?
    If no, why not? (The back of the Statement states, "If any wages are missing, are wrong, or if any of the wages listed are not yours, contact us immediately at the phone number on the front of this form and request a review of this information." It also states, "TO HAVE WAGES DELETED - If any wages listed are not yours, contact us immediately at the phone number on the front. You may receive benefits in error if you do not report incorrect wages. You must repay any benefits paid to you in error." The "Unemployment Insurance Benefits Information" booklet that is mailed to the claimants also addresses this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. It might be helpful to copy the applicable pages from the booklet, send it to the claimant prior to the hearing, and admit it into evidence during the hearing.)

    A subsequent Statement of Regular UI Benefits would have been mailed to the claimant. This statement would have deleted the wage credits that should not have been in the claimant's base period, and the deletion of the wage credits would have caused the overpayment.

    Did the claimant receive the benefits for all of the claim weeks at issue?

    If the claimant denies receiving the benefits at issue, this situation should be handled in the same manner as outlined in Section 319.32.

  34. Reasonable Assurance.

    Issue: whether the claimant is between school terms and has reasonable assurance that services will be performed in the upcoming school term.

    Law Cite: Section 207.041(a) of the Act provides that benefits are not payable to an individual based on services performed in an instructional, research, or principal administrative capacity for an educational institution for a week beginning during the period between two successive academic years or terms, or under an agreement providing for a similar period between two regular but not successive terms if the individual performed the services in the first of the academic years or terms, and there is a contract or reasonable assurance that the individual will perform the services in that capacity for any educational institution in the second of the academic years or terms.

    Section 207.041(b) of the Act provides that benefits are not payable to an individual based on services performed for an educational institution in a capacity other than a capacity described by Subsection (a) for a week that begins during a period between two successive academic years or terms if the individual performed the services in the first of the academic years or terms, and there is a reasonable assurance that the individual will perform the services in the second of the academic years or terms.

    See also Sections 207.041(c), 207.041(d) and 207.041(e).

    Questions:

    When did the claimant file his initial claim for benefits?
    Had the claimant worked for ________ (school district) in the past? When?
    In what capacity did the claimant perform services?
    Does the claimant have wage credits from any educational institutions?
    Was the claimant between terms or semesters?
    When did the semester or term end?
    Was the claimant on a school holiday or break?
    When did the holiday or school break begin?
    Has school resumed?
    If not, when will school resume?

    Did the claimant perform services for an educational institution in the previous term or year?
    Did the claimant perform services for a governmental entity that provides services to educational institutions?
    If yes, were those serrvices performed in an educational institution?
    Did the claimant have reasonable assurance he will be performing the same services in the upcoming term?
    If the job offered for the upcoming term is different, what are the terms and conditions of the offer?
    What assurances did the claimant get about returning to work during the next school year or semester? Or after the holiday or break? (such as a letter)
    What did the letter say?
    When did the claimant get it?
    Had the school district normally sent the claimant a letter in the past?
    How was the claimant rehired from year to year?
    Did the claimant know he would resume his work relationship from year to year?
    Was there any way of knowing?
    Was work always guaranteed?
    Did the claimant get paid when he didn't work?

    If the claimant has reasonable assurance from any educational institution, ALL educational wage credits are suppressed until the claimant is no longer between terms or on a school break or holiday. If you decide to rule the claimant did not have reasonable assurance, you MUST set up an investigation by creating a case on the work separation.

  35. Reporting to the Claims Office.

    Issue: whether the claimant reported to the claims office as instructed.

    Law Cite: Section 207.021(a)(1) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual has registered for work at an employment office and has continued to report to the employment office as required by rules adopted by the Commission.

    Questions:

    When did the claimant file his initial claim for benefits?
    Was the claimant told at the time he filed his claim that he might have to report to the claims office?
    Was he told what might happen if he didn't report as instructed? What was he told?

    Did he receive in the mail a booklet from the TWC entitled "Unemployment Insurance Benefits Information"?
    Did the claimant read that booklet?
    What did the booklet say about the claimant being available to TWC? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and admit those pages into evidence during the hearing.)

    Did the claimant receive a letter from the TWC dated _________ asking him to contact the claims office?
    If yes, when did the claimant receive the letter?
    What did the letter say?
    Did he contact the claims office?
    If yes, when? To whom did he speak? What did they discuss?
    If no, why not?
    If the claimant did not receive the letter, was the address to which the letter was mailed his correct mailing address? (You can check the CTAH screen in the mainframe Benefits system (or Claimant Info in the Appeals Benefits system) to see if the claimant filed any address changes. You may need to send these screen print-outs to the parties prior to the hearing, and you may need to admit them into evidence during the hearing.)

    If the claimant moved, did he notify the TWC that he had moved? If yes, when? If no, why not?
    Was the claimant having any problems receiving his mail at that time? What kinds of problems?

    If a call-in was mailed to the claimant, it can be found in the correspondence list (CMCL) as a claimant contact request. The detail of that correspondence would indicate in issue number of the non-monetary investigation with which it is associated.

    In some cases, the examiner left a phone message for the claimant and a record of this is in notepad in the fact finding. In such case, the claimant should be asked if the claimant received the phone message.

  36. Reporting -- Filing -- Filing -- Triplets.

    Issue: whether the claimant reported to the claims office as instructed and whether claims were filed in accordance with the Regulations prescribed by the Commission.

    Law Cite: Section 207.021(a)(2) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual has made a claim for a benefit under Section 208.001.

    Section 208.001 of the Act provides, in part, that claims for benefits shall be made in accordance with rules adopted by the Commission.

    Section 207.021(a)(1) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual has registered for work at an employment office and has continued to report to the employment office as required by rules adopted by the Commission.

    IMPORTANT NOTES: The Triplets occur when a claimant files claim certifications on Tele-Serv and answers one, or more, questions with an answer that requires the Commission to get more information. For example, if the claimant answers that he was unavailable for work, unable to work, did not look for work, was separated from a job he had, was attending school, or refused an offer of work during the benefit week, the Commission will need to investigate. When that happens, Tele-Serv gives the claimant an instruction to contact his call center within 7 days to provide further information. Claimants filing on line would get a written instruction. If the claimant does not contact the Commission within the 7 day time period, the computer system automatically creates The Triplets.

    The Reporting determination rules the claimant did not report to the Commission to provide necessary information, and it imposes an open period ineligibility that may or may not have been closed by the time of the hearing. The Filing determinations rule the claim certifications are incomplete because the claimant did not provide the necessary information so they could be completed and accepted. These Filing determinations are different from the standard Filing determinations and use different canned statements, but they use the same section of law. They impose a close period ineligibility for each claim week.

    Often times, the claimant will contact the tele-center after he receives the determinations. At that time the claims examiner can simply close the Reporting determination and leave the Filing determinations alone OR the claims examiner can reverse the three determinations. If the reversals are done within fourteen days from the date the determinations were mailed, they are valid. If they are done outside the fourteen day time period, they are not valid and have to be set aside.

    When prepping these types of cases, you will need to see what the claimant answered during the applicable Tele-Serv session so you will know why he was asked to contact the claims office. First determine which weeks were affected by the determinations. To look at the answers in the mainframe Benefits system, you will need to know the Saturday ending dates of the weeks in question. These ending dates are referred to as the Benefit Week Ending date, or the BWE. Once you know all the BWE dates, go to the BPRD screen, type an "I" in the action field, type in the claimant's SSN, type in the BWE date in the BWE field, and press "enter". This will call up the questions and answers for that particular benefit week. As you read the questions and answers, you'll be able to see which questions were holding up the claim. As you will see, only parts of the questions are shown on this screen, but to see the entire question, you would place your cursor somewhere on the question you want to see and pPress the F2 key. A pop-up window will appear showing the complete question; to escape from the pop-up box, you'd press the F3 key. To see the answers for any other affected CCs, you'd type in the next BWE date, and press enter.
    It is very helpful to print these screens in advance of the hearing and mail them to the parties so you can discuss them, if necessary, and admit them into evidence during the hearing.

    If you do not see a problem with any answers, check the claim for the previous week and you will see it probably had earnings. If a claimant reports earnings the previous week, it prompts a call-in instruction as there could be a work separation issue.

    Questions:

    When did the claimant file his initial claim for benefits?
    Was the claimant told at the time he filed his claim that he might have to report to the claims office?
    Was he told what might happen if he didn't report as instructed? What was he told?

    Did he receive in the mail a booklet from the TWC entitled "Unemployment Insurance Benefits Information"?
    Did the claimant read that booklet?
    What did the booklet say about the claimant being available to TWC? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of the applicable pages and send to the claimant (and the employer if one was notified of the hearing) and admit the pages into evidence during the hearing.)

    At this point, begin discussing the print outs of the CCs in question and admit them into evidence. Specifically ask the claimant if those are the answers he provided on that claim, and ask him about any of the questionable answers he gave. (You don't need to take a lot of testimony on, for example, why the claimant didn't look for work during that claim week, but take enough testimony in case the tele-center has not adjudicated the issue and you need to create a case for someone there to investigate.)

    After the claimant had answered all the questions for the claim week, had the system instructed the claimant to call the tele-center?
    Did the claimant hear and understand instructions?
    Did the claimant read and understand the instructions? (if filing on-line)
    Did the system tell him he needed to contact the claims office?
    Was he given a number to call?
    What number?
    Was he given a deadline date to call?
    What was the deadline date?
    Was he told what would happen if he did not call as instructed?
    What was he told would happen?
    Did the claimant call the claims office?
    If no, why not?
    If yes, when? To whom did he speak? What did they discuss? (Check the system to see when the claimant actually talked to someone. If his testimony conflicts with the date of the statement in the system, you will need to admit that statement as evidence and ask the claimant about the conflict in the dates. Remember to ask the parties for objections before you admit the statement and to obtain waiver from them if you haven't sent the statement to them for the hearing.)

    (For these types of cases, you will need to make arrangements in advance of the hearing for someone from our UI Support Services Department to provide testimony during the hearing about what the Tele-Serv system is supposed to do if a questionable answer is given. The following questions should be directed toward the UIPSS witness.)

    Could you please look at the claimant's answers for BWE ________? (You would've already admitted these print-outs during the claimant's testimony; the UISS representative can look at the claim responses on her own computer screen.)
    Can you tell me what, if anything, the Tele-Serv system would have done with this claim? (At this point, the witness would tell you which answer(s) would have resulted in Tele-Serv instructing the claimant to contact the claims office and how long the claimant would have had to contact the claims office.)
    Why would Tele-Serv have instructed the claimant to call the claims office?
    Did the claimant call by the deadline date?
    Has he ever called? If yes, when?

    The Tele-serv script and filing instructions are available if needed. The script explains what happens depending on the answers to the questions. A copy of the script can be sent to the claimant and entered into evidence if needed. The claimant's answers to the questions caused the claimant to be instructed to contact the Tele-center.

    The filing issue relates to whether the claimant properly furnished the needed information to the claims department so the two claims could be completed and accepted. While the claims representative has the authority to change incorrect answers, complete, and accept the claims, the Hearing Officer does not have the authority to complete and accept claims. The claimant is to furnish the information to a claims representative, not the Hearing Officer. The Hearing Officer should not base the filing decision on how the questions were answered, but rather whether the claimant furnished the needed information to the claims department. The Hearing Officer should not attempt to adjudicate an issue that relates to the claimant's answers. If the claimant never contacted the claims department and never discussed the two claims with them, then the claimant has not filed the claims in accordance with Commission Rules as required by Commission Rule 20. See Appeal No. 257-CA-76 in AA 160.30.

    However, in some cases, the claimant may have contacted the Tele-center, but the claims representative failed to remove the contact request. If they fail to remove the contact request, the ineligibilities will be issued. Should the claimant prove that he did, in fact, contact the claims representative before the deadline, then the two filing ineligibilities should be reversed.

    The reporting issue should be treated separately. The Hearing Officer should take testimony as to whether the claimant reported as instructed, and if not, why the claimant failed to report. According to Appeal No. 3027-CF-76 in AA 160.30, the ineligibility may be reversed if the claimant had a "reasonable excuse" for failure to report. If the reporting ineligibility has never been closed and the claimant appears for the hearing, the ineligibility should be closed as of the Saturday of that week. If the Hearing Officer thinks there is some continuing issue that needs to be adjudicated, then a case should be created.

  37. Requalification.

    Issue: whether the claimant has satisfied the requalification requirements of the Act by returning to employment and working at least six weeks or earned wages equal to six times his weekly benefit amount.

    Law Cite: Section 207.044 of the Act provides that an individual who was discharged for misconduct connected with the individual's last work is disqualified for benefits until the individual has returned to employment and worked for six weeks or earned wages equal to six times the individual's benefit amount.

    Section 207.045 of the Act provides that an individual who left the individual's last work voluntarily without good cause connected with the work is disqualified until the individual has returned to employment and worked for six weeks or earned wages equal to six times the individual's benefit amount, unless the individual left work to move with a spouse from the area where the individual worked. In that case, the claimant shall be disqualified for not less than six nor more than twenty-five benefit periods following the filing of a valid claim, as determined by the Commission according to the circumstances in each case. No individual may be disqualified because the individual left work because of a medically verified illness of the claimant or claimant's minor child, injury, disability, or pregnancy if the individual is available for work. A medically verified illness of a minor child prevents disqualification under this section only if reasonable alternative care was not available to the child and the employer refused to allow the individual a reasonable amount of time off during the illness. Military personnel who do not reenlist may not be considered to have left work voluntarily without good cause connected with the work. An individual who is partially unemployed and who resigns that employment to accept other employment that the individual reasonably believes will increase the individual's weekly wage is not disqualified for benefits under this section.

    Effective September 1, 1997, Section 207.051 of the Act provides that an individual is disqualified for benefits after the sale of: (1) a corporation and the individual is an officer of the corporation; a majority or controlling shareholder in the corporation; and involved in the sale of the corporation; (2) a limited or general partnership and the individual is a limited or general partner who is involved in the sale of the partnership; or (3) a sole proprietorship and the individual is the proprietor who sells the business.

    The disqualification will continue until the individual has returned to employment and has worked for six (6) weeks or earned wages equal to six (6) times the individual's benefit amount.

    Section 207.021(a)(6) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual earned wages in an amount equal to not less than six times the individual's benefit amount after the beginning date of the individual's most recent prior benefit year.

    Section 207.053(a) of the Act provides that an individual is disqualified for a benefit if the individual (1) left the individual's last work voluntarily rather than provide services included within the course and scope of the individual's employment to an individual infected with a communicable disease; or (2) was discharged from the individual's last work because the individual refused to provide services included within the course and scope of the individual's employment to an individual infected with a communicable disease. Section 207.053(b) of the Act provides that an individual is not disqualified under this section unless the person for whom the individual last worked made available to the individual the facilities, equipment, training, and supplies necessary to permit the individual to take reasonable precautions to preclude the infection of the individual with the communicable disease. Section 207.053(c) of the Act provides that the disqualification for benefits under this section continues unttil the individual has returned to employment and (1) worked for six weeks; or (2) earned wages equal to six times the individual's weekly benefit amount.

    Commission Rule 20, 40 TAC 815.20, provides that employment used to requalify under Section 207 of the Act shall mean "employment" as defined by the Act.

    Questions:

    When did the claimant file his claim for benefits?
    Since filing his claim, has the claimant worked anywhere else?
    Where has he worked?
    When did he begin working there?
    What did he do there?
    How long did he work there?
    Is he still currently working there? (If not, why is he no longer working there? You may need to create a case for the tele-center to adjudicate if the claimant is no longer working there.)

    How much was the claimant paid?

    Did the claimant report these wages to the TWC when he filed his continued claims? If he did not, why not? Was he aware he was supposed to report his wages on his continued claims? (If the claimant did not report the wages and was filing CCs during the time he worked, you may need to send an e-mail to our Fraud Prevention, Collections and Detection Department to investigate the potential fraud.)

    What is the claimant's weekly benefit amount? (You can obtain this information by looking at the MDCW screen in the Benefits system or by looking at the Monetary tab in the Appeals Benefits system. You might want to send a print-out of one of these screens to the claimant prior to the hearing and admit it as evidence during the hearing if the claimant does not remember his weekly benefit amount since you'll need to make a fact-finding about the WBA in your decision.)

    Has the claimant submitted proof of these earnings? (The claimant's testimony is not enough to prove he has earned enough to requalify. He must submit some documentary evidence that he earned the wages so you may have to continue the hearing if he hasn't submitted any evidence but has some he can send you.)

    Check the EMF to determine whether employer has been determined to be liable. If it appears the employer should be covered under the Act, and liability has not been established, an e-mail should be sent to the tax department to investigate.

  38. Rule 16 Good Cause to Reopen.

    Issue: whether the petitioner had good cause for failing to appear at each previously scheduled hearing.

    Law Cite: Commission Rule 16, 40 TAC 815.16, provides, in part, that if a party to an appeal shall fail to appear at the time and place designated for the hearing, the Appeal Tribunal may hear and record the evidence of the party present and the witnesses, if any, and shall proceed to decide the appeal on the basis of the record. Any party to the appeal who fails to appear at a hearing may, within fourteen days of the date the decision is mailed, petition for a new hearing before the Appeal Tribunal. Such petition shall be granted if it appears to the Appeal Tribunal that the petitioner showed good cause for his failure to appear at the hearing. In the event that an appeal to the Commission is filed before the filing of the petition for rehearing by the Appeal Tribunal, such appeal shall be referred to the Commission for review.

    Questions:

    State to what address the hearing notice was mailed to the petitioner. (The prior hearing notice will be in the file. Check the front page of the hearing notice and the back of page 1 to find all addresses to which the notice was mailed. Admit the hearing notice into evidence during the hearing.)

    Was that address the party's correct mailing address at the time the hearing notice was mailed?
    If yes, is that still the correct mailing address?
    If no, what was the correct mailing address at the time? Had the party notified the TWC that the address had changed? When? How? (If the claimant is the petitioner, you will need to check the CTAH screen in the mainframe Benefits system (or Claimant Info in the Appeals Benefits system) during your pre-hearing review of the case to see if the claimant filed any address changes. If the employer is the petitioner, you will need to check the CMDA screen in the mainframe Benefits system to see if the employer had a designated address for claims filing purposes. You will also need to check the employer's protest if it's in the file to see if the employer wrote in the address where it wanted any determinations to be mailed. You may need to send these screen print-outs to the parties for the hearing, and you may need to admit into evidence the print-outs and the employer's protest during the hearing.)

    Did the party normally receive mail at the address to which the hearing notice was mailed?

    Did the party receive the hearing notice?
    If no, was the party having any trouble receiving its mail during that time? What kind of trouble? If the party didn't receive the notice, how did it learn that it had missed a hearing?
    If yes, did the party receive the notice at the address to which it was mailed? If the party received the notice at a different address, at what address was it received?

    When did the party receive the hearing notice? (Did the party receive it prior to the date of the hearing?)
    Did the party read the hearing notice?
    Did the party understand it?
    When did the party think the hearing would be conducted?
    Did the party participate in that hearing?
    Why not?
    Could anyone else have participated in the hearing on the party's behalf?
    Was it possible for anyone else with firsthand knowledge to have appeared?
    If yes, why didn't they appear?
    Could the party have rescheduled whatever prevented it from participating?
    Did the party contact the hearing officer in advance to let him/her know the party would not be participating?
    Would the party have appeared if it could have?

    Note: Good cause to reopen under Rule 16 is not a jurisdictional issue and should not be addressed as such in the hearing or in the written decision.

  39. Work Search Availability.

    Issue: whether the claimant was available for full-time work.

    Law Cite: Section 207.021(a)(4) of the Act provides that an unemployed individual is eligible to receive benefits for a benefit period if the individual is available for work.

    Questions:

    When did the claimant file his initial claim for benefits?
    Was he told at that time that he would be required to search for work?
    Was he told what might happen if he didn't look for work? What was he told?

    Did he receive in the mail a booklet from the TWC entitled "Unemployment Insurance Benefits Information"?

    When did he receive it? (You may need to check to see when the booklet was mailed to the claimant and to what address it was mailed. You can find this information by checking the CMCL screen in the mainframe Benefits system or by checking the Correspondence tab in the Appeals Benefits system.)

    Did the claimant read that booklet?
    What did the booklet say about the claimant looking for work?
    What did the booklet say would happen if the claimant did not look for work? (Different sections in the booklet address this issue. You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdfPDF. You may need to make copies of those pages, send them to the claimant (and the employer if one was notified of the hearing), and admit them into evidence during the hearing.)

    How was the claimant to look for work (ex. - resume, direct contact, phone)?
    How many contacts was he supposed to make per week? (You can find this information by looking at the CTWS screen in the mainframe Benefits system. You might need to print this screen off, send to the parties, and admit it into evidence during the hearing.)
    During the period of ______ through ______, how many contacts did the claimant make? (Go through each claim week at issue.)
    If he made none, why didn't he make any contacts?
    What type of work was he qualified to perform?
    What were his preferred hours and pay?
    What type of work was he looking for (for each claim week)?

    For each claim week, you will need to have the claimant provide testimony about:
    - who he contacted (each company and the person he actually spoke to)
    - each company's address
    - when he contacted each company
    - how he contacted each company
    - what type of work he was seeking from each employer
    - if he was qualified for the position the employer had
    - what the results of each contact were
    - whether he filed an application with or submitted his resume to each employer.

    Could the claimant have accepted full-time work for each week had an offer to him been made?
    How could a potential employer have contacted the claimant?
    If claimant is claiming he was exempt from work search requirements, get specific information (If he had found a job, did he have a specific starting date).

  40. Workers' Compensation.

    Issue: whether the claimant is receiving or has received workers' compensation.

    Law Cite: Section 207.049(a)(2) of the Act provides that an individual is disqualified for benefits for any benefit period for which the individual receives remuneration in the form of compensation for temporary partial disability, temporary total disability, or total and permanent disability under a state workers' compensation law or a similar law of the United States.

    Questions:

    When did the claimant file his claim for benefits?
    Is the claimant currently or has he been in the past disabled?
    When did his disability begin?
    How did it happen?
    What was the type of injury suffered?
    Was the claimant under a doctor's care?
    Was the claimant's separation from his last work caused by a disability that was incurred on the job?
    Has the claimant received any workers' compensation benefits?
    When did the benefits start? How long did the claimant receive them?
    Is the claimant still receiving them?
    How much does the claimant receive?
    Does the claimant receive the benefits per month or per week?
    How long will the claimant continue to receive them?
    What type of disability does the claimant have/what type did he have?

    Changes made in the Texas Workers' Compensation Act (Act) effective January 1, 1991 redefined benefits payable under that Act and replaced the former Industrial Accident Board with the Texas Workers' Compensation (TWCC). This legislation designated four types of income benefits available under the Act. They are as follows:

    Temporary Income Benefits (TIBs), total and partial temporary disability
    Impairment Income Benefits (IIBs), permanent partial disability
    Supplement Income Benefits (SIBs), temporary partial disability
    Lifetime Income Benefits (LIBs), total, permanent disability

    Since terminology has changed, it no longer matches the terminology in the . However, of these, only the Impairment Income Benefits are NOT disqualifying.

  41. Family Violence Separation.

    Issue: whether the claimant quit due to family violence or stalking.

    Law Cite: Section 207.045(d)(5) of the Act provides an individual shall not be disqualified if the individual left work because of an involuntary separation as described by Section 207.046

    Section 207.046. INVOLUNTARY SEPARATION. (a) An individual is not disqualified for benefits under this subsection if:

    1. the work-related reason for the individual's separation from employment was urgent, compelling, and necessary so as to make the separation involuntary;
    2. the individual leaves the workplace to protect the individual from family violence or stalking as evidenced by:
      (A) an active or recently issued protective order documenting family violence against, or the stalking of, the employee or the potential for family violence against, or the stalking of, the employee;
      (B) a police record documenting family violence against, or the stalking of, the employee; or
      (C) a physician's statement or other medical documentation that describes the family violence against the employee that:
      (i) is recorded in any form or medium that identifies the employee as the patient; and
      (ii) relates to the history, diagnosis, treatment, or prognosis of the patient; or
    3. the individual leaves the workplace to care for the individual's terminally ill spouse as evidenced by a physician's statement or other medical documentation, but only if no reasonable, alternative care was available.
      (b) Except as provided by law, evidence regarding an employee described by Subsection (a)(2) may not be disclosed to any person without the consent of the employee.
      (c) In this section:
      (1) "Family Violence" has the meaning assigned by Section 71.004, Family Code.
      (2) "Stalking" means conduct described by Section 42.072, Penal Code.

      Questions:
      What was the reason the claimant gave the employer for quitting?
      What was the situation that caused the claimant to quit?
      Does the claimant have a recently protective order?
      Is there a police report?
      Is there a doctor's statement?

      Note: The changed as of June 15, 2007. Claimants are no longer required to present all three items to prove the claimant left due to family violence or stalking. Now, any one of the three items (A, B, or C) is sufficient evidence of family violence or stalking.
  42. Non-monetary Overpayments.

    Issue: Whether the claimant received benefits to which the claimant was not entitled.

    Law Cite: Section 212.006 of the Act provides that benefits paid to a claimant that are not in accordance with the final determination of an examiner or decision of an Appeals Tribunal, the Commission, or a reviewing court shall be refunded by the claimant to the Commission, or in the discretion of the Commission, deducted from future benefits payable to the claimant under this Act.

    Non-monetary overpayments are created when a claimant is paid benefits and then a determination is issued ruling the claimant was either disqualified or held ineligible from the receipt of those benefits. The overpayment should normally be set with the non-monetary determination that caused the overpayment. If a non-monetary determination caused an overpayment, the overpayment must also be addressed in the decision. The overpayment determination is affirmed, reversed, or modified in accordance with the ruling on the non-monetary determination.

    The dollar amount stated on an overpayment determination always includes the total overpayment owed by the claimant, including any prior overpayments. However, the Hearing Officer should only address the overpayment caused by the non-monetary determination included in the current appeal.

    Questions:

    Did the claimant receive the benefits for the weeks in question?

    (If uncertain, the HO can refer to BPCS to help determine which weeks are involved in the non-monetary determination. Additionally, the overpayment shows on overpayment history (PCOH). The "established date" at the right on the PCOH screen should match the date of the overpayment determination. In some cases, there are multiple non-monetary determinations that cause an overpayment for the same period. In such cases, the claimant would still be overpaid unless all of the determinations for that period adverse to the claimant are reversed).

    Recently, benefits have been paid through a debit account or by direct deposit. If the claimant contends that the claimant did not receive the benefits in the debit account, continue and get the debit records from the state office. Copies of the records should be mailed to the parties for a continuances, and the claimant should be confronted with the records. If the claimant is using direct deposit, continue and advise the claimant to submit his bank records as evidence. For older cases, the claimant might have been paid benefits by state warrants. Copies of those may be obtained from the state office.

    The UISS does not issue another determination to the claimant when an overpayment is reversed. If the overpayment is reversed, the amount is entered in the "amount adjusted" column on the PCOH screen and the overpayment amount reduced accordingly for the weeks in question.

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320 The Decision

  1. Commission Rule 16(6), 40 TAC 815.16(6) provides, in part:

    "As soon as possible following the conclusion of a hearing of an appeal, the appeal tribunal shall issue its findings of fact and decision with respect to the appeal. The decision shall be in writing and shall reflect the name of the appeal tribunal who conducted the hearing and who rendered the decision. In the decision, the appeal tribunal shall set forth findings of fact and conclusions of law, with respect to the matters on appeal, and the reasons for the decision."
  2. Copies of all decisions and the reasons therefor shall be mailed by the Appeals Department to the parties. Copies of decisions will also be mailed to parties' representatives.
  3. A hearing officer's written decision serves many purposes, the most important of which is to help the parties to understand the outcome of the case, the findings of fact and the conclusions of law upon which the decision was based. It is only through such an understanding that the parties will have an adequate basis for deciding whether to initiate a further appeal.
  4. Decisions must be given in written form. Hearing officers are not allowed to issue oral decisions at the time of the hearing. Besides being required by Commission Rule, a written decision also ensures that the parties have been properly notified of the outcome of the appeal, and ensures that further appeal rights are properly protected.
  5. All appeal decisions, once mailed, are processed by the appeals staff at the State Office in Austin. Any questions concerning decision processing or the payment of benefits should be referred to the status desk in the State Office Appeals Department.
  6. The primary purpose of the hearing officer's "office day" is to give the hearing officer adequate time to issue decisions for the hearings held that week. The hearing officer should make every effort to issue all of the decisions for that week and should only carry over cases in extreme circumstances.

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Last Verified: March 21, 2013

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