57. How Should You Prepare for a Hearing?
If DUA has already scheduled a hearing, you may have to act quickly to prepare, as postponements are often difficult to obtain, even if the time period stated on the notice of hearing for requesting a postponement has not yet expired. DUA’s Hearings Department may reject postponements for some conflicting engagements of the claimant and her representative, although consideration is given if the failure to postpone will cause a hardship. DUA regulations require that the Notice of Hearing be posted online and mailed to the claimant and to his authorized representative, at least 10 days before the hearing. 430 CMR 4.11 (regulation promulgated in response to Bocchino v. Demong, Dir. of the Div. of Emp't Sec., Suffolk Superior Court CA 78731 (circa 1980)(challenging the inadequacy of short hearing notices).
The standard notice of hearing simply replicates the technical language of the UI statute and states almost every possible separation issue that could arise at the hearing, including voluntary quit, leaving for urgent and compelling personal reasons, deliberate misconduct, and rule violation. It also states that “able and available” may be an issue to be determined at the hearing. The notice departs from the federal Department of Labor guidelines. See ET Handbook No. 382, Handbook for Measuring UI Lower Authority Appeals Quality, 3rd edition, 2011 at 63, available at . Also, a due process notice issue is raised whenever the review examiner delves into issues other than the separation issue that is the subject of the appeal. Additionally, a due process challenge may lie where a pro se claimant is not sufficiently apprised about what issue will be heard at the hearing as a result of the notice’s technical language.
For proper representation, plan on at least three meetings with the claimant: the first to allow ample time to hear the story, the second to prepare the client’s direct examination and to do a mock cross‑examination, and a final meeting before the hearing to review the direct. Always remind your client that a photo ID is required otherwise your client will not be able to enter DUA (nor will you without your ID) and your client may be defaulted if more than 10 minutes late. (See Appendix H for a checklist of steps to prepare a UI case.)
Other initial actions include:
- getting the client’s Social Security number, DUA Docket No., and Issue ID No.;
- obtaining all facts from the client about the separation, stressing the importance of knowing any harmful facts, prior warnings, witnesses to events, and so forth;
- getting the employer’s and witnesses’ names, addresses, and phone numbers;
- finding out everything about the place of work—the chain of command, the way information is communicated, the nature of working relationships, and the details of the job;
- having the client sign releases for access to DUA case files, personnel files, medical documents if necessary, and information in other forums;
- requesting a client to provide a copy of documents on her online file, or reviewing the documents at the computer with a client when the client is in your office. To view appeal case documents on UI Online:
- click View and Maintain Account Information;
- click Monetary and Issue Summary;
- click the applicable link on the Monetary and Issue Summary page;
- at the bottom of the Monetary Determination (or Eligibility Determination) page, select View Appeal Case Documents and click Next;
- the Appeal Case Folder page displays.
View a PDF version of any case document by clicking its Title link. (Although DUA has long committed to providing claimant advocates with a separate portal to review claimants’ information with their permission, this change has yet to happen (this opportunity is already available to employer agents and greatly facilitates representation);
- obtaining and reviewing all relevant documents and materials your client may have from the job and from your clients' hearing file at DUA; and
- determining whether it is strategically wise to contact the employer to obtain the employee’s personnel and other records; or, alternatively, to ask your client to retrieve personnel records and other records from the employer.
Advocacy Tip for Separation Cases
Follow the steps outlined in Appendix H. By the time of the hearing, you and your client should be able to summarize in a concise manner why your client is eligible for UI. You should know the theory of your case, the facts that support your theory, and how to address any facts that may not support the theory. The majority of UI hearings are scheduled for one hour. You need to prepare your client to tell their story in as concise a manner as possible, with a laser focus on those facts that are relevant in light of the statutory requirements described throughout this Guide. Simply put, your client’s story must explain the reason for separation and must demonstrate why, under Massachusetts UI law, the separation qualifies your client for UI benefits.