58. Have You Obtained All Documents?
Consider the documentary evidence you will want to present. Although difficult to enforce, discovery is available. 801 CMR 1.02(8). In addition, you may want to issue a subpoena duces tecum to obtain the needed documents. It may be important to build a complete record for future appeal, if necessary.
Ask the claimant to bring you all relevant documents in her possession—for example, notices from the DUA; copies of online submissions, such as the initial application; any documents from the employer that could be related to the separation, such as relevant rules or policies, evaluations, warnings, and/or a termination letter. Obtain any employment contracts, personnel manuals, information on grievance procedures, medical evidence of illness and treatment, claims filed against the employer in other forums such as the Massachusetts Commission Against Discrimination (MCAD), and so forth.
Most importantly, review the DUA hearings file, a right secured under G.L. c. 151A, § 39(b)(5), in order to review the employer’s initial reason given for separation, the claimant and employer statements, the Notice of Disqualification, claimant and employer responses to questionnaires and any other documents submitted by either party.
Employers must keep personnel records for at least three years after the entry date of the record. G.L. c. 151, § 15. An employee has the right to obtain a copy of her personnel file. G.L. c. 149, § 52C (and further discussion below).
DUA Hearings Case File
Even if the claimant has copies of DUA forms, obtain a copy of the entire DUA file by contacting the DUA Hearings Department. With the exception of documents for telephonic hearings, many of the file materials relevant to the hearing are not available on the client’s UI Online account.
Always check if the employer returned the UI Request for Information within the 10‑day period; if the employer failed to do so without good cause, it no longer has party status—i.e., it has no right of cross‑examination and may not appeal an adverse hearing decision, and the employer representative is present at proceedings only as a witness. G.L. c. 151A, § 38(a), (b).
Personnel Records
Section 52C of G.L. c. 149 has two functions. First, it allows employees and their counsel access to all personnel records kept by the employer; second, it allows the employee to submit a written statement explaining her position as to any adverse information contained in those records, thus making her explanation a part of the personnel records.
For purposes of representing a UI claimant, the first function is more significant, as it may be the only formal discovery tool available. However, on the rare occasion when you see the employee before her separation from work occurs, it may be useful to have her obtain the file and place her explanations of adverse material in it.
The personnel file maintenance practices of employers vary greatly. Some keep only payroll, tax, and benefit information in a personnel file and maintain other information elsewhere. No matter how an employer maintains the information, employees are entitled to see their own personnel records.
The statute defines a “personnel record” functionally as any record that identifies the employee and “is used, or has been used, or may affect or be used” relative to the employee’s “qualification for employment, promotion, transfer, additional compensation or disciplinary action.” For employers with 20 or more employees, the file must contain a specific listing of documents to be included in the personnel file and the documents must be retained during the pendency of certain actions. If an employer with 20 or more employees has a written personnel policy, it must make it available for inspection.
For UI purposes, often the documents of most value are the employee’s attendance record, evaluations, and warnings and other records of disciplinary action or of any reasons the employer has given for termination. All these are within the scope of G.L. c. 149, § 52C, as is any document that the employer relied on in taking an action that led to the termination, as long as the document identifies the employee. Under G.L. c. 149, § 52C, any employer receiving a written request from an employee shall, within five business days, provide the employee both an opportunity to review his personnel record and a copy of the record.
An employee is entitled to review his record twice in a calendar year. The employer is required to notify the employee within 10 days of placing information in the employee’s record that may be detrimental to his employment status. Employee review of this potentially detrimental information does not count as one of the two annual opportunities to review the record. St. 2010, c. 240, § 148, amending G.L. c. 149, § 52C. (See sample Request for Personnel Records, Appendix I.)
Using a Subpoena to Obtain Documents and Compel the Attendance of Witnesses
Another useful way for a party to acquire information needed for his case is to issue a subpoena. A party may issue a subpoena to order a witness to attend a hearing. A party may also issue a subpoena duces tecum, which compels the attendance of a witness and also requires that she produce, at the hearing, specific documents that the issuing party requests.
Particularly for pro se claimants who need DUA’s assistance, DUA advises that the claimant contact the Regional Hearings Manager at the local hearing office at least four days before the hearing. G.L. c. 30A, § 12; 801 CMR 1.02 (10)(i). However, as many of these positions are currently vacant, best bet is to call the Hearings Office (Boston: 617-626-5200; Lawrence: 978-738-4400; Brockton: 508-894-4777; Springfield: 413-452-4700). The party has the responsibility to serve the subpoena and pay the fees for travel and attendance, in accordance with the rules for witnesses in civil cases. G.L. c. 30A, § 12 (2). Similarly, petitions to vacate or modify the subpoena follow the procedures in G.L. c. 30A, § 12(3), (4).
Subpoenas are particularly useful when you believe that a witness whose attendance is necessary to prove your client's case is unlikely to be present voluntarily at the hearing. Similarly, a subpoena duces tecum is a valuable tool to ensure that certain documents be available at the hearing. Advocates may also use subpoenas in advance of the hearing for discovery purposes; on rare occasions, they have been successful in using subpoenas to obtain documents prior to the hearing and then, depending on their content, deciding whether or not to introduce some or all of the documents as evidence. Some employers require 10 days’ notice to any individual whose records are involved so that they have an opportunity to quash, so it is important to serve the subpoena as early as possible.
Subpoenas are enforceable in Superior Court. If the opposing party does not comply with the subpoena, be sure to bring to the hearing the return of service and the subpoena listing the documents requested.
A request can be made to continue a hearing if the subpoena is not complied with, but the hearing officer will not grant the request without a showing that the evidence is relevant.
(See Appendix J for a copy of the DUA subpoena form.)
Note: Witness employees are protected against retaliation for their participation in a claim for UI benefits. A notice of termination of employment or of any substantial alteration in the terms of employment within six months after an employee has provided evidence or testified in connection with a claim for UI creates a rebuttable presumption that such notice or other action is a reprisal against the employee for providing evidence, the proof of which warrants a rescission of any adverse alteration in the terms of employment, an offer of reinstatement, and liability for damages, the cost of the suit and attorney’s fees. G.L. c. 151A, § 47, as amended by St. 2014, c. 144, § 67.