10. What Happens If Benefits Are Denied, Either Initially or After the Claimant Has Begun Receiving Them and When Can the Denial Be Reconsidered?
Claimants who are disqualified from receiving benefits remain disqualified indefinitely and until they have had 8 weeks of work and have earned a total amount “equivalent to or in excess of 8 times the weekly benefit amount." Claimants who are disqualified from receiving benefits remain disqualified indefinitely and until they have had eight weeks of work and have earned a total amount "equivalent to or in excess of eight times the weekly benefit amount.” G.L. c. 151A, §25(e), as amended by St. 2014, c. 144, § 62.
Note: If the claimants are initially disqualified, it is extremely important that they keep certifying their claim for UI and work search via UI Online or TeleCert. Doing so establishes that she has met job-search requirements are met. (See Question 6). Failure to keep certifying may jeopardize the right to receive retroactive UI in the event of a subsequent determination of eligibility. According to DUA, it informs all applicants of this certification requirement initially, but many claimants do not know that they are supposed to continue certifying even after disqualification. Additionally, DUA may have failed to inform claimants of this requirement in their primary language. G.L. c. 151A, § 62A. If that is the case, the claimant should be permitted to file the weekly certifications late, without penalty. 430 CMR 4.13(4).
Reconsideration of a Claim after the Claimant Has Begun Receiving UI
G.L. c. 151A, § 71 allows for reconsideration of any DUA determination, within certain time frames and conditions. The criteria and procedures for a party to request a reconsideration, or for the Director to reconsider on her own initiative, are set out in DUA regulations. 430 CMR 4.30 – 4.35; 11.00 – 11.10. See Peterson v. Seltzer, Suffolk Superior Court (July 13, 1988) (class action seeking declaratory relief against DUA practice of making redeterminations and stopping benefits without notice and hearing resulting in “due process” protections in DUA regulations). Under § 71, the Director can reconsider any determination within one year of the original determination where there has been a non-fraud error (an accidental act or failure on the part of DUA, claimant, agent, or employer) or where there are newly discovered claimant wages from the benefit year. See BR-0018 5314 44 (7/31/17 Where the claimant told DUA that she had been “laid off” because she confused the word with “resigned,” the error was due to the claimant’s confusion and not fraud, with the result that DUA’s redetermination made after 1 year was time-barred); BR-0018 8929 07 (2/28/17) (finding disqualification made after 1 year time-barred); BR-0018 5163 61 (12/19/16) (same); BR-0018 0382 50 (6/14/16) (same).
One way that DUA circumvented this one-year limitation on redeterminations was to re-label a redetermination as a “new” determination and claim that—despite the claimant being paid benefits—no determination subject to § 71’s limitations had actually been made because no written decision was issued. However, in Marrero v. Jeffers, No. 2085-CV-00937, Worcester Superior Court (March 2, 2021), the court rejected DUA’s argument that it could issue initial payments without issuing an initial decision under G.L. c. 151A, § 39.
DUA has accordingly recognized that a payment of benefits constitutes a “determination” of a claimant’s eligibility subject to the limitations of § 71. See UIPP # 2021-12, Redeterminations under Section 71 (December 15, 2021); see also BR-0024 4652 34 (9/10/20) (Review Examiner’s August 2020 hearing decision imposing a disqualification effective beginning December 2017 was time-barred under § 71. Initial date of determination for purposes of § 71 statute of limitations deemed to be first date benefits were paid, on week ending January 13, 2018) BR - 0018 8929 07 (2/28/17) (finding that DUA's notice of disqualification in September 2016 pertaining to a disqualification of benefits from June through August 2015 was time barred) barred). ); BR-N6-H8DJ-9DV7
(10/20/22) (DUA’s redetermination of a PUA claimant’s eligibility was time- barred under Section 71 where benefits were paid on May 15, 2020, representing an initial determination that the claimant was in total or partial unemployment, and disqualification notice was issued on July 12, 2021); BR-N6-H9JR-35N9 (10/12/22) (Redetermination of PUA claimant’s COVID-19 eligibility was time-barred where DUA’s payment of benefits beginning May 4, 2020 represented a determination that the claimant satisfied COVID-19 eligibility requirements and then issued subsequent notice of disqualification regarding same issue on July 14, 2021).
In some cases, DUA issued claimants a “Notice of Approval” regarding eligibility issues it already determined in their favor more than one year prior to that notice by beginning to pay their UI benefits. These notices mistakenly afforded employers appeal rights, despite being untimely redeterminations under § 71. Further, because the Notice of Approval represents DUA’s decision not to redetermine a claimant’s eligibility, they carry no appeal rights under M.G.L. c. 151A, § 71. BR-0060 3067 04 (2/1/23) (Employer had no standing to file appeal of a separation issue where DUA’s failure to take any action to redetermine a claimant’s initial award of benefits within one year of payment of benefits was effectively a decision not to reconsider eligibility under § 71, a decision which is final and not subject to appeal).
If DUA finds that it allowed or denied benefits based on a misrepresentation of facts, the reconsideration period is extended to four years. If DUA finds that the misrepresentation resulted from a knowing failure to furnish accurate information, then any overpayment that has resulted is also subject to 12% interest under § 69(a). Also, under § 69(c), DUA may not waive recovery of any overpayment if there is a finding of fraud. It is therefore critical to dispute an erroneous fraud finding. (See Questions 55 and 62.)
Advocates should ensure that DUA has conducted an independent analysis of whether there was a knowing misrepresentation; in the past, DUA issued fraud determinations without doing the necessary factual inquiry. (See
When DUA commences a reconsideration of a claim, it notifies the claimant of a Claim Discrepancy. If the claimant is already receiving UI, benefits are continued to the Saturday prior to the date of the notification. The claimant has 14 days to rebut the new evidence or allegations before DUA terminates benefits. Following this fact-finding, DUA issues a Notice of Redetermination and Overpayment. 430 CMR 11.01–11.10.
At one time DUA provided a procedure to ensure that UI benefit payments would not be interrupted pending a redetermination of eligibility in cases where receipt of a late protest from an interested-party employer creates new issues. However, DUA no longer follows that procedure. An argument still exists in these cases that for DUA not to provide an opportunity to be heard before interrupting benefits violates the claimant’s right to due process (secured in DUA’s regulations as a result of the Peterson case described above and through numerous federal decisions interpreting the due process protections under the Social Security Act that govern the administration of a state's UI program.) Goldberg v. Kelly, 397 U.S. 254,262 (1970)("Relevant constitutional restraints apply as much to the withdrawal of public assistance as to the disqualification for unemployment compensation ..."); Comm'r of Labor of the State of Conn. v. Steinberg, 419 U.S. 397, 388 (1971).
Any party may request a reconsideration. The request must: be in writing, be addressed to the DUA Director, be served on all parties to the original determination, and state the reasons for the reconsideration.430 CMR 4.33 (2), (3) ; 430 CMR 11.01, et seq. Claimants may request reconsideration due to (1) newly discovered evidence that suggests the previous decision may be in error; or (2) errors of law or other procedural irregularities underlying the original decision. 430 CMR 4.34 (1).
DUA will consider a request for reconsideration only if no appeal is pending taken under G.L. c. 151A, § 12 (determination of whether employer is a covered employer) or § 40 (appeals to the Board of Review). 430 CMR 4.33(1). The reconsideration does not stay any appeal periods and the decision of the Director shall be considered final. 430 CMR 433 (6); 4.35(1).