Saturday, March 3, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

More from the "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - which sets forth the guiding rule the DOL bases its determinations - and I have emphasised certain passages:



"CREDIBILTIY IN SEPARATION ISSUES

The Java decision brought about revisions in federally mandated procedures for obtaining information and issuing determinations in disputed claims: “The Court’s stress on speeding benefit payments to unemployed workers suggests this factor appropriately is the key criterion to be used in choosing among alternative procedures for implementing the requirements stated in the decision. This objective of prompt payment seems clearly, in the Court’s view, to suffuse the entire unemployment insurance program.” (U.I.P.L. No. 1145, Section I, Promptness of Payment, para. 5 November 12, 1971)

Everything should be done to avoid delays in the issuance of benefit payments due to uncertainties about claimant or employer credibility. Although the Department’s fact-finding processes are consistent with federal standards and are designed to ease the resolution of factual disputes, the information may still be incomplete. Although there is no such thing as a perfect case, nevertheless decisions must be made expeditiously: “Determinations on issues arising in connection with new claims may be considered on time within the meaning of the Court’s requirement for promptness if accomplished no later than the second week after the week in which the claim is effective” (UIPL No. 1145, Section IV, Promptness of the Determination Process, para. 1 November 12, 1971). The Federal timeliness standards mandate that non-monetary determinations be made in twenty-one days upon the detection of an issue.

When an employer’s statement consists entirely of repeated general accusations that the claimant violated a “known policy” and despite requests for details or clarification, none is forthcoming, there is no information to overcome the statement provided by the claimant. If the claimant denies the accusations, the determination is made in the claimant’s favor since there is an insufficient basis for denying benefits. As previously discussed in Field Memo 5-85, which dealt specifically with “Fact Finding and Employer Service Companies,” when an allegation is made against a claimant by an employer representative or agent, and that allegation is directly denied by the claimant, the rules of evidence permit us to give greater weight to the claimant’s statement. Undocumented contentions conveyed to the department by someone who does not possess first hand knowledge of the pertinent facts should not be given greater weight than a claimant’s first-hand denial. However, employers should first be told that their failure to provide the requested details or clarification and/or access to individuals with first-hand knowledge of the relevant circumstances may result in greater weight being given to the claimant’s first-hand statement.

The Appellate Division of the NY State Supreme Court, describing the philosophical basis of the Unemployment Law, has written: “This is a remedial statute, a humanitarian statute, and should be construed accordingly. It is the general rule that a liberal construction is accorded statutes which are regarded by courts as humanitarian and which are grounded on a humane public policy” (Matter of Machcinski, 277 AD 634). If it appears, despite reasonable attempts to obtain information from both parties, that each party’s position is equally believable or equally supported by evidence, the matter should simply be resolved in the claimant’s favor. There may be extraordinary situations that might justify further investigation. But when the claimant and the employer are equally believable, our determination should result in claimant eligibility. As applied to matters of credibility, a “liberal construction” means: when both parties are equally believable, pay the claimant.

Resolving such situations in the claimant’s favor is consistent with the overall purpose of the unemployment insurance program. After reasonable fact-finding, the claimant should be given the benefit of a doubt whenever credibility or the weight of evidence seems evenly balanced. In this way, benefits can be paid promptly, and the state as a whole benefits from the additional funds put in circulation. Such determinations are completely proper, provided they are supported by substantial evidence. It is important to remember that parties have hearing rights and that the initial determination is not the final word on the question of a claimant’s eligibility. Additional discussion of the topic of credibility may be found in REVIEW LETTER 2-84, Attendance Related Separation Issues, Section VII, CREDIBILITY."

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