In May an Executive Order signed by Governor Paul LePage established The Blue Ribbon Commission and tasked it with reviewing various complaints and concerns raised by Maine citizens about the consistency and objectivity of the unemployment insurance system. After countless grueling hours of research, testimonies, and collaboration, the commission confirmed that Maine’s appeals system has not been consistent in applying the law.
“Last year, both members of the Unemployment Insurance Commission and I raised concerns about the need for improvements and consistency in the way the unemployment system functions, especially the appeals process,” Commissioner of Labor Jeanne Paquette Paquette recounted.
“The concerns that we discussed with the hearings officers last spring, related to the admission and weighting of hearsay testimony and business records, were not only supported by the findings of the Governor’s Blue Ribbon Commission, but also are the same findings of the USDOL’s independent review. My responsibility as commissioner is to ensure that the law is applied fairly and to manage the staff of the department. The findings of both these independent and non-partisan reviews confirm that Maine’s appeals system has not been consistent in applying the law,” Commissioner Paquette stated.
In an eight-page letter to Commissioner Paquette, Holly C. O’Brien, regional administrator of the Employment and Training Administration of the U.S. Department of Labor (USDOL), reviewed the unemployment appeals process in the Bureau of Unemployment Compensation, part of the Maine Department of Labor, and the Unemployment Insurance Commission, which is an independent state agency appointed by and reporting to the governor. The letter reported finding inconsistent admission of business records, inconsistent admission of witnesses in hearings, and lack of agreement about what constitutes a precedent and how that should be applied at the lower levels.
“We are addressing this serious issue,” continued Commissioner Paquette.
According to Governor LePage, the letter from O’Brien confirmed several of his concerns. “As did the Blue Ribbon Commission report concerning the appeals process,” LePage stated. “The department is taking steps to ensure the law is fairly applied to both employers and employees, as is only just.”
The Blue Ribbon Commission report provided unified recommendations pinpointing reforms to improve the unemployment system. These recommendations include:
- Employers have lost cases because their employee handbooks were not in compliance with current State law or are over reaching in their requirements of employees. Employers should have their handbooks reviewed by a labor attorney at least every two years.
- The most significant change in the last several years has been in the area of “social media” and it’s usage by employers and employees. Five paragraphs dealing with this one area were added to our handbook and should be carefully read and understood by every employer as while employers have rights to protect their business’s good standing from unfair or false statements in the social media, actions that they take against employees who use social media may be illegal.
- The largest area that the Blue Ribbon Commission dealt with was “hearsay” evidence. Prior to our investigation, hearsay evidence (routine and ordinary business records that are used consistently in the course of business – time cards, warning notices, disciplinary notices, corroborating statements by other employees, etc.) were given little or no weight in the hearing officers decision by some hearing officers. Hearsay evidence is now to be given weight in the decision by the hearing officer. The strength of the weight that is given depends greatly on an employer’s being able to support that any such records are consistently used and are not being “manufactured” against any one single individual.
- It is the employers responsibility to follow up with the Unemployment Commission regarding information requested by the commission or any documentation provided to corroborate an employer’s position to discharge an employee for cause.
- Employers should be encouraged to not only respond to requests from the Unemployment Commission but also vigorously pursue cases where they believe they are right in the discharge of an employee for cause. Our investigation learned that the State has paid over $70,000,000 in “overpayments” to employees. These are payments to employees that should not have received financial support from the State. These payments go against the employers insurance rating if they are not contested by the employer.
Dave Walck, a Maine small business franchisee, and one of the six members of the Blue Ribbon Commission says the commission spent over six months working on their investigation and are very encouraged with the acceptance of the report by the Governor and Commissioner Paquette.
“It gave me great insight into the workings of the Unemployment Commission and we believe our recommendations, if implemented, will benefit employers and employees alike. It was well worth the time we put into the investigation, and it was a pleasure to serve with everyone on the commission.”
The Department of Labor has already begun to administer the Blue Ribbon Commission recommendations, including improving staff, increasing communication between the different parts of the system, and ensuring consistency in the application of the law– especially surrounding business records in the appeals process.
“Although this process has generated much controversy, the outcome is positive for both workers and businesses. No one benefits when either employees or employers abuse the system,” stressed Commissioner Paquette.