Sweeping changes to Maine’s unemployment benefits appeals system urged

Daniel Wathen
Seth Koenig
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By Mario Moretto, BDN Staff
Posted Sept. 12, 2013, at 5:42 p.m.

AUGUSTA, Maine — Employers and a lawyer representing state employees told an ad-hoc committee assembled by Gov. Paul LePage to study Maine’s unemployment system that the program’s appeals system must be made more fair and efficient.

The study committee, composed of representatives for workers and businesses, heard testimony from unemployment appeals officers, business owners and union representatives during a public hearing Thursday in Augusta.

The most interesting recommendation was the elimination of the politically appointed Unemployment Insurance Commission. It was through that body that LePage coordinated a lunch meeting with hearings officers in March during which the governor allegedly pressured them to resolve more cases in favor of employers, according to a Sun Journal investigation.

More than a dozen Department of Administrative Hearings employees confirmed LePage’s efforts to the Sun Journal, but asked to remain anonymous for fear of losing their jobs. A further investigation showed that the governor’s office received more than twice as many complaints about unemployment from workers than it did from businesses.

The Unemployment Insurance Commission serves as a second level of appeals in a five-level system. Workers and employers first go through fact-finding adjudicators, who make an initial decision. If either side is unhappy, they can appeal to hearings officers, then the Maine Department of Labor’s commission. Further, appeals can be made to Superior Court and ultimately the Maine Supreme Judicial Court.

“I don’t know what the Unemployment Insurance Commission brings to the table, frankly, that the hearing officer hasn’t already done,” said Tim Belcher, an attorney for the Maine State Employees Union, which represents some hearings officers. “What you get from the commission is political appointees making decisions rather than career employees.”

Belcher was responding to a question from Dan Wathen, co-chairman of the Blue Ribbon Commission on Unemployment and former chief justice of Maine’s law court, who asked why there were so many levels of appeals and whether the entire unemployment system would be better served by less repetition.

“Taking a fresh look at the system, it strikes me as unusual that there are five separate opportunities to win or lose,” Wathen said. “It raises the question, for me, of whether we need all five levels.”

One of the department’s hearing officers, Maura Bragg, also said she doesn’t see the need for the Unemployment Insurance Commission. She defended her co-workers — most of whom are lawyers — saying they followed the letter of the law and should not have been the target of political pressure from the governor.

“Our diverse group of professionals, including our amazing chief, has one thing in common: our dedication to uphold the law,” she said.

Bragg questioned a suggestion the governor allegedly made during the lunch meeting to make hearings officers admit hearsay evidence from employers without giving the worker a chance to cross-examine.

“At hearings, every party must have the opportunity to be heard, and to cross-examine all witnesses,” she said. “This is part of the requirement of due process, that we are fair and impartial.”

LePage created the Blue Ribbon Commission on Unemployment after reports surfaced that the governor had pressured unemployment hearings officers to find more unemployment disputes in favor of businesses. The panel’s goal is to investigate the entire unemployment benefits system.

“Let’s take an in-depth look at the state’s entire unemployment compensation system to make sure that it is fair and consistent for all Mainers,” LePage said when he created the group. “We welcome the opportunity to examine the system and make sure it is doing what it is designed to do: administer unemployment compensation in a judicious way that benefits both employers and employees. The people of Maine deserve to know that their system works for everyone.”

LePage has denied trying to interfere with the process, saying he simply communicated the “hundreds” of complaints his office had received from businesses who say they didn’t get a fair shake. The governor described the meeting as cordial, and said he reminded the hearings officers to be fair and consistent in applying the law.

Jennifer Duddy, chairwoman of the Unemployment Insurance Commission, and Jean Paquette, Maine’s labor commission — both LePage political appointees — were also at the March meeting and backed up the governor’s characterization of its tone. Reports of complaints about unemployment triggered a U.S. Department of Labor audit.

The governor later told reporters he thought the appeals process was “one-sided,” and several business owners made similar complaints at Thursday’s hearing.

Bob Seavey, who manages eight Dunkin’ Donuts restaurants in the Auburn area, said that he only loses unemployment proceedings at the hearings officer level.

“Few of my cases are lost at fact-finding,” he said. “Most of these cases, I lose in appeal, and in 30 years I’ve never lost a case before the commission.”

He said that’s because hearings officers give deference to ex-workers, that “the burden of proof always falls on the employer.”

David Brooks, director of operations for a company with about 300 employees in Portland, said he has been told by an adjudicator that he couldn’t admit employee policies as evidence, even if that policy would show the company had a rule broken by the person seeking unemployment benefits.

“If you have an employee that’s swearing at customers and other employees, and we have a policy for that,” it should be admissible, he said. “The adjudicator just asked me why we had the policy.”

Jim Betts, a retired claims adjudicator, said the unemployment system never will make everyone happy.

“With each case, there’s a winner or a loser. Rarely does the loser agree with the decision,” he said.

The commission is accepting comments from the public about the unemployment system through Sept. 19. Comments can be sent to unemploymentbrc@outlook.com.

CORRECTION:

An earlier version of this story incorrectly stated that every unemployment hearings officer is a lawyer. Most, but not all, are lawyers.

http://bangordailynews.com/2013/09/12/business/sweeping-changes-to-maines-unemployment-benefits-appeals-system-urged/ printed on November 21, 2014