6 PROPOSED ADMINISTRATIVE RULES

 

SOAHR 2006-008

 

DEPARTMENT OF LABOR & ECONOMIC GROWTH DIRECTOR’S OFFICE

EMPLOYMENT SECURITY BOARD OF REVIEW

 

Filed with the Secretary of State on

These rules take effect 7 days after filing with the Secretary of State.

 

(By authority conferred on the director of the department of labor and economic growth by section 36(1) of 1936 (Ex. Sess.) PA 1 and Executive Reorganization Order Nos. 1996-2 and 2003-1, being MCL 421.36(1), 445.2001, and 445.2011)

 

Draft March 13, 2006

 

R 421.1101, R 421.1103, R 421.1104, R 421.1108, R 421.1109, R 421.1110, R 421.1111, R 421.1201, R

421.1202, R 421.1203, R 421.1204, R 421.1211, R 421.1212, R 421.1213, R 421.1214, R 421.1301, R

421.1302, R 421.1304, R 421.1305, R 421.1307, R 421.1314, R 421.1315, and R 421.1316 of the

Michigan Administrative Code are amended, as follows: PART 1. GENERAL PROVISIONS

R 421.1101  Definitions.

Rule 101. As used in these rules:

(a)    “Act” means 1936 Extra Session (Ex. Sess.) PA 1, MCL 421.1 et. seq.

(b)     “Agent office” means an unemployment insurance office outside the state of Michigan serving as agent of the bureau agency.

(c)    “Board of review” or “board” means the Michigan employment security board of review.

(d)    "Bureau" and “commission” both mean the bureau  of  workers'  &

unemployment compensation “Agency” means the unemployment insurance agency as created in Executive Reorganization Order No. 2003-1, MCL 445.2011.

(e)     Unless the context otherwise requires, the word “party” means the bureau agency, the employing unit, and the claimant, and includes an agent or attorney of the bureau agency, the employing unit, or the claimant.

(f) “Referee” means a hearing officer or administrative law judge with the state office of administrative hearings and rules (SOAHR) as created in Executive Reorganization Order No. 2005-1, MCL 445.2021.

(g) “Rehearing” means a request for review of a decision of a referee or the board of review received within 30 days after the date of mailing of the decision.

“Reopening” means a request for review of a decision of a referee or the board of review received after the 30th day, but within one year, after the date of mailing of the decision.

 

 

March 13, 2006

 

 

R 421.1103  Principal office of commission agency and board; location.

Rule 103. (1) For unemployment compensation purposes, the The principal office of the Bureau of  Workers' & Unemployment Compensation unemployment insurance agency is Cadillac Place, 3024

W. Grand Blvd., Detroit, Michigan 48202.

(2)   The principal office of the Michigan Employment Security Board of Review is 105 West Allegan,

Ottawa Bldg., Fourth Floor, 611 Ottawa St., Lansing, Michigan 48909-7975.

 

R 421.1104  Service of decisions, notices, and orders; "principal office" defined.

Rule 104. (1) A decision, notice, or order shall be served on each party and on the agent or attorney of record of for each party by any of the following methods:

(a)   Personal service. ;by

(b)   Depositing copies, which are enclosed in an envelope that is properly sealed, addressed, and posted to such person at his or her address appearing on the record of the appeal proceedings, in a United States mail receptacle. ; or by

(c)   Certified or registered mail.

An affidavit or certification of the person making such service shall be prima facie proof of service which is rebuttable by a preponderance of the credible evidence.

(2)   If a written request for a notice of a referee hearing or a specific referee decision is received by the commission agency before the date of mailing of such notice or decision from a claimant's collective bargaining representative who is not the claimant's agent of record or from a claimant's employer who is not a party, each such notice of hearing or referee decision shall be served by any of the methods in subrule (1) of this rule on the principal office of the claimant's collective bargaining representative, if any, or of the employer, where the claim involves any of the following:

(a)    Whether a claimant is disqualified under section 29(1)(g), 29(8), or 29(9) of the act.

(b)      Whether money paid a claimant is vacation or holiday pay within the meaning of a collective bargaining agreement under section 48 of the act.

(c)      Whether a claimant is on a leave of absence within the meaning of a collective bargaining agreement under section 48 of the act.

(d)    The impact of a collective bargaining agreement on the issue of suitable work under section 28 or 29 of the act, including, but not limited to, the claimant's prior training, prior earnings, experience, and possible loss of recall or seniority rights.

(e)    A claim for federal unemployment benefits where the employer is not a party.

(3)     For purposes of subrule (2) of this rule, "principal office" means a collective bargaining representative address filed with the commission agency by the representative or the claimant or an employer address filed with the commission agency by the employer.

(4)    The provision, pursuant to subrule (2) of this rule, of either a notice of a referee hearing or a referee decision, or both, to a collective bargaining representative or to an employer who is not a party does not serve to make such collective bargaining  representative or employer a party under these rules.

 

R 421.1108  Witness fee vouchers; processing.

Rule 108. At the conclusion of a testimonial hearing by the referee or the board of review, witness fee vouchers shall be processed by the commission agency for payment for those witnesses who satisfy all of the following conditions:

 

 

(b)     Appeared in person at the hearing, and.

(c)    Verified their mileage and proper mailing addresses.

 

R 421.1109  "Good cause" defined.

Rule 109. As used in these rules, "good cause" includes, but is not limited to, any of the following:

(a)    Newly discovered material evidence.

(b)    A legitimate inability to act sooner.

(c)    A failure to receive a reasonable and timely notice, order, or decision.

(d)     Untimely delivery of a protest, appeal, or a commission an agency document by a business or governmental agency entrusted with delivery of mail.

(e)     Having been misled by incorrect information from the commission agency, referee, or board of review.

 

R 421.1110  Employer or claimant fraud; hearing procedure.

Rule 110. (1) A hearing of employer or claimant fraud under section 54, 54a,

54b, 54c, or 62(b), (c), or (d) of the act shall be preceded by a written notice of the penalties and issues involved.

(2) Where one party, including the bureau agency, has documentary evidence or

witnesses  concerning  another  party’s  alleged  fraud;  the  party  shall  make  a  witness  list  and  the documentary evidence available to the other party or parties not less than 10 days before a fraud hearing.

 

R 421.1111  Decisions of board and courts; subject matter index; copies.

Rule 111. Copies of Michigan court decisions involving the act where the bureau agency is a party shall be kept on file by the bureau agency at Cadillac Place, 3024 W. Grand Blvd., Detroit, Michigan 48202. To the extent practicable, the board of review shall maintain a digest, indexed by subject, of selected board of review and related court decisions. The subject matter index and copies of the decisions shall be available to the public for reference purposes.

 

PART 2. APPEALS TO REFEREES

 

R 421.1201 Appeal; form.

Rule 201. (1) An appeal to a referee shall be in writing and shall be signed by the appealing party or his agent.

(2) Appeal forms for referee hearings and rehearings shall be available at all commission agency

offices that are open to the public.

 

R 421.1202  Appeal; deadline; statements on redetermination; procedure on appeal of denial of redetermination.

Rule 202. (1) An appeal to a referee shall be received by the principal office or any branch office of the commission agency, or by any agent office of the commission agency, outside the state of Michigan, within 30 days after the date of mailing or personal service of the commission’s agency’s redetermination.

(2)   A party who receives a denial of redetermination because his or her the request for review was not filed with the commission agency within 30 days after the date of mailing or personal service of the underlying determination or redetermination may appeal the denial of redetermination to a referee. The referee shall take evidence on whether there was good cause for issuing a redetermination. If the referee

 

 

finds good cause, the referee    shall inform the parties of that fact and shall then proceed to take testimony on, and

decide the underlying issue or issues, in accordance with R 421.1206.

 

R 421.1203  Notice of hearing.

Rule 203. (1) Except as required by subrule (4) of this rule, notice of the time and place of any hearing before a referee, and a short and plain statement of the issues involved, shall be mailed to, or personally served upon, each party by mail or personal service not less than10 days before the date of the hearing.  (2) The notice shall be deemed mailed on its date of mailing.

(3)   (2) When a referee adjourns a hearing for which notice has been given, notice to the parties of the new hearing date may be given orally if the new hearing date is within 10 days of the old hearing date. Otherwise, the new notice shall be mailed.

(4)   (3) When a hearing involves employer or claimant fraud under section 54, 54a, 54b, 54c, or 62(b), (c), or (d) of the act, the notice of hearing shall be mailed to, or personally

served upon, each party by mail or personal service not less than 20 days before the date of the hearing.

 

R 421.1204  Subpoenas.

Rule 204. (1) A party may request subpoenas to compel witnesses to testify at a referee hearing or to compel persons to produce books, records, and papers at a referee hearing.

(2)   Requests for subpoenas shall be made to a branch an agency office that is open to the public or the referee division of the commission.

(3)   The subpoenas shall be issued promptly, unless the commission referee decides that the request is unreasonable.

(4)   A party denied a subpoena may apply to the board of review for issuance of the subpoena, and the proceedings before the referee shall be stayed until the board decides whether the subpoena should be issued.

 

R 421.1211  Rehearing of referee's decision.

Rule 211. (1) A request for a rehearing of a referee's previous decision shall be received by the referee or by an office or agent office of the commission agency or an office of the agency within 30 days after the date of mailing of the decision.

(2)   Reasons for requesting a rehearing include, but are not limited to, good and valid reasons for not appearing at a referee hearing which resulted in a dismissal for lack of prosecution or the discovery of material evidence after the date of the referee hearing.

(3)   A rehearing may also be granted on the referee's own motion.

(4)   Granting a rehearing is within the discretion of the referee. The referee shall state in the order or decision allowing rehearing the reasons for granting the rehearing.

(5)   If a timely request for rehearing is denied, both the denial and the referee's previous decision may be appealed to the board of review.

(6) A rehearing request received after the 30th day shall be treated by the referee as a request for reopening pursuant to R 421.1212.

 

R 421.1212  Reopening and review of referee's decision.

Rule 212. (1) A request for reopening and review of a referee's previous decision shall be received by the referee or by an office or agent office of the commission agency within 1 year, but more than 30 days, after the date of mailing of the decision.

 

 

(2)    There shall be a showing of Reopening will be granted only if good cause for reopening is established. If the referee grants a reopening, the order or decision allowing such reopening shall contain a statement of the basis for the good cause finding. If the referee denies a reopening, the order denying reopening shall contain a statement of the basis for the denial.

(3)   A rReopening and review may also be granted on the referee's own motion if the review is initiated by the referee, with notice to the interested parties, within 1 year after the date of mailing of the previous decision.

(4)   Granting a reopening is within the discretion of the referee. If good cause is established, the referee shall issue an order allowing reopening. The referee shall thereafter decide the underlying issues of the case based on the evidence already submitted and any additional evidence the referee may enter into the record.

(5)   If a request for reopening is denied, both the denial of reopening and the referee’s decision may be appealed to the board of review. However, the board of review will not cannot review the referee's previous decision unless it first decides finds there was, in fact, good cause for a reopening.

 

R 421.1213  Notice of rights of appeal.

Rule 213. (1) Each referee decision or final order shall notify the parties of all of the following:

A party has the right to have a decision or a denial of a motion for rehearing reviewed by the board of review by making a timely appeal.

A party may make a timely request to the board of review for an oral argument or to present additional evidence in connection with his or her the appeal.

Absent a hearing before it, the board of review shall consider a party’s written argument to the board of review only if all parties are represented or by agreement of the parties.

A referee decision or final order may be appealed directly to a circuit court if the claimant and the employer or their respective authorized agents or attorneys sign a written stipulation and file it in a timely manner.

A party may make a timely request to a referee to rehear a previous decision.

A party may make a timely request to a referee, for good cause only, to reopen and review a previous decision.

(2) Each referee decision or final order shall state the deadline and places of receipt of the above alternatives. It shall also state in boldface type: “TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME.”

 

R 421.1214  Stipulations.

Rule 214. (1) The claimant and the employer or their authorized agents or attorneys may sign a written agreement to appeal a referee decision or order directly to a circuit court rather than to the board of review.

(a)     Where a party is unrepresented, the agreement shall recite that the parties are thereby waiving the right to have their case appealed to and reviewed by the board of review.

(b)    The stipulation shall be received by the referee within 30 days after the date of mailing, or personal service, of the referee's decision or order.

(c)      Seeking, obtaining, or filing a stipulation does not extend any time period. However, when all parties have signed the stipulation, it shall be deemed an appeal to the board of review until such time as the appeal to the court is perfected.

(2)   The parties to an appeal before a referee may stipulate the facts in issue.

(3)   Stipulations shall not be in any sense in derogation of the act and shall not involve an interpretation of the act.

 

 

 

PART 3. APPEALS TO BOARD OF REVIEW

R 421.1301  Appeal; form.

Rule 301. (1) An appeal to the board of review shall be in writing and shall be signed by the party appealing or his agent.

(2) Forms for appeals to the board of review and for rehearing by the board of review shall be available at the office of the board of review and all commission agency offices that are open to the public.

 

R 421.1302  Appeal; deadline; statements on referee's decision or order; procedure for late appeal.

Rule 302. (1) An appeal to the board of review shall may be received by at the office of the board of review, the principal office or any branch office of the commission agency, or by any agent office of the commission agency outside the state of Michigan within 30 days after the date of mailing of the referee’s decision or order denying rehearing or reopening.

(2) The referee’s decision or order shall state the deadline and places for receipt of the appeal. It shall also state in boldface type: “TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME.”

(2) To be received on time, an appeal to the board of review must be received within 30 days after the date of mailing of the referee's decision or the referee’s order denying rehearing or the referee’s order denying reopening.

(3) The board of review is without jurisdiction to consider the merits of any appeal received after the 30-day appeal period. A party who wishes to appeal a referee decision to the board of review, but whose appeal is not received by the board of review