Unemployment Hearings – No Lawyer Required
Posted on August 11th, 2009 by Tim Eavenson | 4 Comments »Filed under: ., HR Issues, The Financial Crisis |
With the recession apparently ending (I’ll believe that when I see it), I thought I’d better slip this post in quick before everyone in the world is back to work and unemployment posts are boring again.
Two recent cases decided by the 1st District Illinois Appellate Court have brought an interesting facet of our unemployment law to the fore: you don’t have to be a lawyer to represent a party in an unemployment hearing.1
In both cases (here and here), former employees appealed the Illinois Department of Employment Security’s denial of benefits, alleging that the hearing was voided because the former employer had hired a “representative” that asked questions of witnesses and made factual closing statements.
In both opinions, the First District noted that the unemployment statute is meant to create an informal process, and specifically allows for a “duly authorized agent” to represent either party at the hearing. The courts also noted that factual questioning and analysis of this one specific issue – unemployment insurance – doesn’t qualify as “practicing law”.
I’m not sure about that last point. The official definition of ”the practice of law” is:
“the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.”
I don’t quite see how summarizing facts at an unemployment hearing would be useful if the person summarizing those facts doesn’t have an understanding of the underlying law. Not saying the courts were wrong – there is obvious leeway in the statute for non-lawyer representation – and there are valid public policy reasons for allowing non-lawyers to assist companies and aggrieved employees, not the least of which is sheer cost.
But the exposition in these decisions about factual work being outside the practice of law creates a shaky precedent for me in any context. What do you think?
Finally, remember that unemployment insurance typically requires that you prove you’re still looking for work. So if you do have to go in for a hearing, ask around – you never know whose hiring these days.
~~ Footnotes ~~
- This is not only true in IL – a lot of other states have similar language in their statutes |↩|
Tim, I have been thru these hearings, I THINK the law is this way so that the parties can ‘speak plainly’ in the hearing. In the 2 cases I was involved with, both as the employer, common sense prevailed so I thought it worked out well.
12:17 pm on August 13th, 2009.
I like your blog. I just wanted to say that I’ve been hit hard by unemployment and I just wanted to chime in
Great post
8:54 am on August 18th, 2009.
Hello, nice read. I was wondering, where are these hearings held? In a court house setting or?
Thank you.
10:54 am on October 8th, 2009.
Hi, After years of contracting lay reps and attorneys across the country to represent employers at unemployment hearings, all of a sudden I come across two posts about a part of the unemployment process that I am both outraged and vehement about.
I do realize that Illinois and some other states actually require a hearing officer, referee, commissioner, ALJ, examiner or whatever title they give that person that resides over a lower level unemployment hearing, to actually be an attorney, Have you never heard of the Pennsylvania Harkness Decision? All the result of an attorney that got all bent over being beat by a lay rep at a lower level PA unemployment hearing. Pennsylvania had to change their statutes to overcome it. PA referees do not need to be attorneys.
A number of states do not even require that the person residing over the unemployment hearing be an attorney and they render decisions based on statute and precedents.
There are five states in this country that require a “paid hearing representative be an attorney. WV, KS, SC, MO, SD, and NC and AZ require that the representative only present an attorney supervisory letter.
What’s worse, and probably why this is so, is that many state statutes dissuade the representation by attorneys of unemployment claimants at hearings by regulating a limit that can be charged to the claimant.
How does a state keep their unemployment recipiency rate down? By herding us to the unemployment hearing without the proper information to prepare for the hearing that “creates the record” that all further appeals must be based upon.
We’re screwed!
I just read another post .. by another attorney which linked to yours. There was some vague reference to the behavior of these lay reps for employers at unemployment hearings. Guess what, most of them have a win/loss ratio of 75/25 percent. And you oughta hear’em talk about attorneys who show up for claimants at unemployment hearings .. resided over by a non-attorney.
The only ones hurt by all this is the unemployment claimant who is trying to figure out how to get benefits, but can’t find any information which actually explains how to win an unemployment hearing. They are unemployed. Can they afford an attorney?
It’s called a rock and a hard place.
7:37 pm on October 13th, 2009.