SUBPOENA & EVIDENCE PROFFER WORKSHOP

2023 NAUIAP CONFERENCE

PRESENTERS

OBJECTIVES

• Explain the requirements for issuing a subpoena
• Walk through the technical aspects of issuing a subpoena
• Outline a framework for considering novel forms of evidence
• Application of these concepts to example cases

ET Handbook No. 382, 3^rd Edition: Handbook for Measuring UI Lower Authority Appeals Quality

• Appendix B to the handbook is A Guide to Unemployment Insurance Benefit Appeals Principles and Procedures.
• The guide contains information regarding the totality of the appeals process, from when and where appeals should be conducted to what information should be contained in decisions.
• The guide also contains information such as admitting certain evidence, proper weight to give evidence, and other evidentiary issues.

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Subpoenas

• Agencies have the authority to issue subpoenas in order to compel a party to produce evidence or a witness for a hearing.
• A subpoena ad testificandum compels testimony; a subpoena ducus tecum compels documentary evidence.
• Typically, a subpoena is requested by an interested party in order to compel the other party to produce evidence or a witness to appear at a hearing. However, the guide also states that the appeal tribunal should issue subpoena requests on its own motion when necessary to secure best available evidence.

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Subpoenas

• The guide provides that “[a] party’s request for issuance of a subpoena should be granted freely, unless it is clear that such a request is unreasonable, frivolous, made for the purpose of harassment, or is not needed to secure attendance of a witness or production of documents.”
• It’s not uncommon for parties to subpoena their own witnesses, or documentation that they already have.
• Parties should have sufficient information to allow them to submit a subpoena in advance of a hearing, so that they can be processed and (if necessary) issued with sufficient time for a response.
• However, according to the guide, “parties must be free to request and have subpoenas issued at any time before the close of the hearing.”

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Subpoenas

• From the hearing notice issued to parties in South Carolina:
• SUBPOENAS: A subpoena is a legal document issued by the Department that orders an essential witness to testify or produce certain documents for the hearing. You may apply for a subpoena of witnesses and/or documents by downloading a form APP -107 under the Appeal Hearings heading at www.dew.sc.gov/individuals/tools/forms. The form must be completed, signed and sent to the Appeal Tribunal. It may be sent by mail to "Appeal Tribunal, P.O. Box 995, Columbia SC, 29202;" or by fax to 803-737-0287. SUBPOENA APPLICATIONS MUST BE RECEIVED SIX (6) BUSINESS DAYS PRIOR TO THE HEARING DATE OR THE REQUEST MAY NOT BE CONSIDERED.

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Subpoenas

• How does your state review and approve or deny subpoenas?
• In South Carolina, a senior hearing officer is assigned to review all subpoenas that are submitted and rule on them.
• A copy of the subpoena request with the senior hearing officer’s notes is provided to staff, who then issues the approved subpoenas. A copy of any subpoenas, as well as the request (which includes a note as to why any requests were denied) is then sent to the hearing officer holding the hearing in question.

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Subpoenas

• Possible reasons to deny subpoenas:
• Duplicative
• Irrelevant
• Request is too broad
• Not enough information provided
• Request is unnecessary

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• Should claimants or employers be provided with an opportunity to cure defects or issues with their requests? I.e., to narrow the scope of an overly broad request, or provide additional information?

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Subpoenas

• Handling noncompliance
• Parties will occasionally not appear in response to a subpoena, or will not produce the requested documentation.
• How to handle this can depend on whether both the employer and the claimant have appeared for the hearing.
• The parties may need to provide the witness or evidence during the course of the hearing, or the hearing may need to be reconvened.
• In an instance where the party who requested the subpoena is the only person to appear, their testimony would be uncontested.
• In some cases, particularly where documents are requested, this may not solve the issue.

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Subpoenas

• Example:
• The claimant is discharged for sleeping on the job; the employer’s general manager is allegedly the person who observed the claimant sleeping, and discharged him. Claimant requests a subpoena for the general manager to appear and testify. The employer’s HR manager and HR generalist are the only witnesses to appear, and state that the general manager is not available.
• How should this be handled?

Subpoenas

• Example:
• The claimant is discharged for failing to meet monthly sales quotas. In advance of the hearing, a subpoena is issued for the claimant’s sales records throughout his employment. The employer fails to respond, and does not appear for the hearing. The claimant testifies during the hearing that he does not know what his sales numbers were.
• How should this be handled?
• Does the method of handling change if the employer DOES appear for the hearing?

Proffers of Evidence

• Appeals bodies are not generally bound by formal rules of evidence or procedure. This simplifies hearings by avoiding the question of what should or should not be admitted.
• Per the guide, “[a]ny evidence pertaining to the issues in a case should be received as a matter of course.”
• “The much more important and practical question is the weight that should be given to particular evidence. The liberal practice in admitting evidence, however, imposes upon the appeal tribunal a greater responsibility in weighing the evidence received.”

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Proffers of Evidence

• Parties will often offer sworn affidavits, or even unsworn written statements written by other individuals, as evidence.
• While this is generally something that would be admitted, the ultimate question is how much weight should be attributed to the document.
• “The more material such evidence is to the issues in the hearing, the more important it is to obtain oral, sworn testimony. In addition, where the facts are material and the issue is in dispute, procedural fairness may require that the party or witness be called before the tribunal for the purpose of cross examination.”

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Proffers of Evidence

• Authentication
• Fed. R. Evid. 901(a) - To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
• Fed. R. Evid. 901(b) provides a non-exhaustive list of evidence that satisfies the requirement, including testimony of a witness that an item is what it claims to be.
• It is important to remember that just because evidence is authentic, it may not be accurate. For example, screenshots of text messages may conveniently leave out messages which would be important to the issue.
• The authenticity of a document may also be the purpose of proffering the evidence; for example, a falsified doctor’s note may not be “authentic” per se, but it may still be authenticated as relevant evidence in a case where it was material.

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Proffers of Evidence

• From South Carolina hearing notices:
• EVIDENCE: Written evidence or documents such as letters timecards, or doctors' statements may help your case. Photos, maps, or charts may also help explain what happened. Be ready to tell who prepared the evidence and how it helps your case. Send legible copies of the documents to the hearing officer and the other side before the hearing. Do this even if you believe the Department or the other side already has them. EVIDENCE MUST BE SUBMITTED TO THE APPEAL TRIBUNAL AND PROVIDED TO THE OPPOSING PARTY AT LEAST 24 HOURS PRIOR TO THE HEARING. If you don't, the documents may not be considered as evidence. Include only evidence that relates directly to issues listed on the hearing notice.

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Proffers of Evidence

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• Questions to ask about evidence:
• Is it relevant?
• Does it help to establish the facts?
• Is it the best available evidence?
• Is the information already part of the record? (i.e. testified to and undisputed by the parties)?
• Does the opposing party have the documentation?
• Can it be sent, or otherwise communicated to them?

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• For short documents that aren’t likely to be disputed (i.e. medical excuses), it can often be read and described to the party, prior to asking for any objections

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EVIDENTIARY�HYPOTHETICALS

How would you rule?

SUBPOENA FOR �DOCUMENTS

CL worked for ER as a plumber for 6 months and was discharged because ER received reports that CL had harassed Coworker F, including yelling and making threatening gestures with a hammer. CL denies that the incident occurred, appeals the disqualification, and requests:

1. Timecards for Coworkers A, B, C, D, E, and F to corroborate the timeline of CL’s version of events and to show poor morale and staffing shortages.
2. Employee files for CL, Coworker B, and Coworker F to show job experience and any disciplinary history for each.
3. Subpoena for Coworkers G, H, and I to provide testimony on the problems faced by ER’s foremen.� �

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Potential issues to consider:

• Do the requested materials/witnesses further CL’s theory of the case?
• What is the factual issue you’ll decide in the hearing? Are these materials/witnesses necessary for that decision?
• What witness subpoena request did CL not make that you might have granted?

SUBPOENA�FOR�E-EVIDENCE

CL worked for ER for 6 months as a sales rep and was discharged for not meeting ER’s weekly quotas for client sales meetings.

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1. All documentation from ER’s CRM software of the CL’s communications with clients, including notes input by the CL.
2. All Zoom messenger conversations from Supervisor X and Supervisor Y.

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• Prior to the hearing: ER requests modification of subpoena to permit omission of client/contact names and proprietary details from CRM software documentation. Do you grant the modification?
• At the hearing: Assume you grant the modification, and the claimant objects- how should you proceed?

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Case Study

• Claimant is employed by a school district as a bus driver. At the start of the COVID-19 pandemic, the claimant is furloughed. The claimant files a claim for UI and FPUC benefits, and is held eligible. The claimant is also receiving his regular pay from the employer.
• The claimant does not report his gross earnings during the weekly certification process. As a result of a wage audit, the claimant is held non-fraudulently overpaid. The claimant appeals.
• A hearing is scheduled on the overpayment issue. The claimant submits multiple motions and pleadings, including subpoena requests for the following documents and testimony:

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Case Study

• Claimant’s direct supervisor
• Testimony regarding when the claimant last worked, and when he was furloughed due to the COVID-19 pandemic;
• Payroll records showing the claimant’s gross pay;
• Time cards showing when the claimant did and did not work; and
• Any documentation that the employer has which show that the employer was aware of the claimant’s claim for benefits, and did not dispute or appeal it.

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Case Study

• Auditor who adjudicated the initial claim
• Testimony regarding how the audit was conducted, how the determination of overpayment was made, and why she did not accept his legal arguments during the adjudication process;
• Department policies showing how audits are completed, why the claim was selected for an audit, and a history of how audits have been adjudicated when the employer was aware of the claim but did not object; and
• Any Department policies related to conducting audits, specifically when severance or furlough pay is involved.

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Case Study

• Director of SC DEW
• Documentation related to any policies and procedures related to PUA claims, and any communication between the Director and the Governor’s Office on how to adjudicate them;
• Any communication between the Director and the Governor’s Office regarding executive order 2020-22 that may indicate how the Governor intended the Department to administer the order.

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Case Study

• SC Governor
• The claimant submitted, but later withdrew, a request to subpoena the Governor’s office for documentation related to his claim.

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In addition to subpoena requests, the claimant also submitted multiple written motions ranging from requests to have the hearing officer disqualified due to a conflict of interest, or in the alternative to have the opportunity to conduct voir dire of the hearing officer, and to requesting that the hearing officer rule on the constitutionality of the Department regulation concerning fees that can be charged for representation.

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Case Study

• What should have been granted, and what should have been denied?
• Does the answer change if the parties are in agreement over the claimant’s wages and time worked, and the only dispute is whether the wages are “reportable wages” for UI benefit purposes?
• Should the Department be required to produce a witness to explain a previous adjudication when the issue is non-fraud, and the hearing is de novo?

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LIGHTNING ROUND

How would you rule?

SUBPOENA

ER is CL's father. ER requests a subpoena for CL to appear in person at the hearing "so that CL can take accountability for his actions.”

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Do you grant the subpoena?

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Witness Testimony

Written Statement

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To support her position on an eligibility issue, CL submits a typed and signed statement from a person that CL says was her former ER’s CFO. The statement is dated a few days before the hearing.

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You search for ER in your state’s public business license records and discover that the company recently closed. The records do not have the CFO’s name in them. You Google the CFO’s name and find their LinkedIn page, which does list them as the former ER’s CFO. However, the CFO’s name is spelled differently than in the letter CL submitted.

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• Was it appropriate to do the business license and Google searches?
• Do you admit the letter into evidence?
• What questions could you ask CL to elicit information that would support admission/denial?
• What other steps could you take?

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Public Records

During the initial claim filing, the claimant indicates he was laid off due to a lack of work or slowdown in business. The employer’s response is that the claimant was discharged under the employer’s attendance policy due to multiple consecutive absences without notice, which is considered abandonment. Claimant subsequently told the employer that he had been incarcerated and the employer refused to rehire him or allow him to return to work.

Claimant appeals, and the employer does not appear for the hearing. Claimant testifies that he was separated due to a lack of work. Hearing officer searches the public index and finds the claimant was in fact incarcerated at the time of separation. When confronted with this, the claimant admits to being incarcerated and to being told that he was considered to have abandoned his job. When asked why he did not report the true reason for his separation the claimant testified that he did not want to provide information that he believed would prevent him from receiving benefits.

• Is it appropriate to use the conflicting information provided to the Department to impugn his credibility?
• Was it improper for the hearing officer to conduct a public records search considering the employer did not participate in the hearing?
• Is it appropriate to consider the nature of the criminal charges against the claimant?

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Questions?

Additional Hypotheticals

Chronic funerals

ER discharged CL for falsifying death certificate which the CL submitted to support a bereavement leave request. CL denies fabricating the document.

Both parties appear for the hearing, and right before testimony begins, CL requests a continuance. CL claims they thought the hearing would be brief, and they have to attend a funeral.

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• Do you grant the request?
• What questions could you ask to help you make your decision?

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Internal communications

CL worked for ER as a sales rep for 2 years and resigned because CL claimed ER failed to timely pay CL agreed-upon commissions and failed to timely communicate about the amount of disputed commissions. UI benefits were initially denied based on the finding that CL resigned due dissatisfaction with standard working conditions. CL requests:

1. All communications between HR & supervisor for 2 months prior to job separation regarding the ER’s decision to deem CL to have resigned.
2. CL’s employee file
3. All docs related to CL’s requests for compensation
4. All communications between supervisor & CL regarding CL’s ability to access ER’s software
5. All docs concerning CL’s won/lost status for jobs performed during employment, including docs related to CL’s commissions.
6. Employee handbook, and/or other written policy pertaining to ER’s claimed reason for deeming CL to have resigned.

CL’s Reason for Requests: ER contends CL resigned because CL could not access data and wage systems which ER claims did not exist. The requested material will help establish that CL resigned because ER locked CL out of data systems which CL needed to perform their job duties in retaliation for CL’s demands for unpaid wages.

How would you rule?

• Are the docs requested sufficiently specific? What modifications, could narrow the scope?
• What if ER submits a motion to quash because the requested information contains trade secrets? What steps, if any, would you take in anticipation of ER’s request?

Social Media�

Workers at one store of a national chain create a private Facebook group for employees, called “Confessions of a Big-Box Retail Worker.” Outside work hours, CL posts derogatory statements in the group about ER and co-workers, including a comment that Co-Worker A had not been discharged because they were having sex with Store Manager B. ER discharged CL because it believed the posts violated the ER’s policies for treatment of co-workers; the policy explicitly extended to social media platforms.��Should CL be disqualified from benefits due to a violation of ER’s policy?

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CONTACT US

STARLA DOYAL

Colorado Department of Labor

Starla.Doyal@state.co.us

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DEAN FREEMAN

South Carolina Dept. of Employment & Workforce

DFreeman@dew.sc.gov

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LYNELL GWALTNEY

South Carolina Dept. of Employment & Workforce

LGwaltney@dew.sc.gov

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ANA MARIA PRICE

Mississippi Dept. of Employment Security

APrice@mdes.ms.gov

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