Missouri Code of State Regulations
Title 8 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
Division 10 - Division of Employment Security
Chapter 5 - Appeals
Section 8 CSR 10-5.015 - Appeal Hearings and Procedures
Universal Citation: 8 MO Code of State Regs 10-5.015
Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: Consistent with Executive Order 17-03, the amendment rescinds subsection (6)(B) of the rule regarding postponement requests by representatives and attorneys due to existing conflicts and renumbers the remaining subsections of section (6) of the rule.
(1) Copy of Appeal. Upon the division's receipt of an appeal, the appeal shall be acknowledged and the parties shall be provided with a copy of the division's informational pamphlet concerning hearings and copies of the documents from the appeals file upon which the determination was based.
(2) A hearing officer upon his/her own motion, or at the request of a party, in the hearing officer's discretion may direct the parties to appear at a specified time and place for a conference to consider-
(A) The simplification of the
issues;
(B) The possibility of
obtaining stipulations, admission of facts or of documents;
(C) The limitation of witnesses;
and
(D) Other matters as may aid
the disposition of the proceedings.
(3) In any proceeding pending before a hearing officer, claimants, employing units, or their representatives, shall, upon written request, be supplied with information from division records to the extent division records are available to the hearing officer, as necessary for the proper preparation and presentation of any claim for unemployment benefits or appeal of employer liability.
(4) Hearings may be conducted in-person, by telephone, or by a combination of telephone and in-person attendance referred to as a split hearing in this regulation.
(A)
Hearings shall be conducted by telephone unless:
1. A party requests an in-person hearing;
or
2. A hearing officer, on his/her
own motion, schedules an in-person hearing.
(B) Any party shall have an absolute right to
an in-person hearing.
1. A request for an
in-person hearing shall be delivered to the hearing officer as soon as possible
in the appeals process but, in any event, no later than two (2) days prior to
the date of the hearing.
2.
Requests may be made via fax, telephone, or delivered to the appeals section in
written form.
3. Requests for
in-person hearings made later than two (2) days prior to the date of the
hearing shall be referred to the chief appeals referee or his/her designee(s)
for disposition.
4. A request for
an in-person hearing may only be withdrawn upon a showing of extreme
circumstances precluding the requesting party's in-person attendance.
(C) The hearing officer may, on
the hearing officer's own motion or the motion of a party, schedule a matter
for an in-person hearing or adjourn any split or telephone hearing in progress
for an in-person hearing, if, in the hearing officer's opinion, conducting any
part of the hearing by telephone is unsatisfactory.
(D) A split hearing, with the parties present
at different locations at the same time, may be scheduled only if an in-person
or telephone hearing is not possible or the parties agree to or request a split
hearing.
(5) Notices of Hearing.
(A) Notice of Hearing shall be
mailed, by regular United States mail, to the address of record in the appeal
file of each party, attorney who has entered an appearance, and others
appearing in a representative capacity who have filed notice of intent to
represent. Notices shall be mailed at least seven (7) days prior to the date of
the hearing. These notices shall specify the date, time and place or method of
hearing and shall set forth the address of the office to which all requests or
other correspondence concerning the hearing should be directed.
(B) The hearing officer or the designated
appeals' clerk shall complete a certification that the Notice of Hearing was
mailed to each of the parties and representatives of record at the addresses
listed in the official file.
(6) Postponements.
(A) The hearing officer, upon request of a
party or upon his/her own motion, may postpone a hearing. Postponements may be
granted if-
1. The request is promptly made
after the party receives the Notice of Hearing or after the circumstance
requiring postponement arises; and
2. The party has good cause for not attending
the hearing at the time and date set. Good cause exists when the circumstances
causing the request are beyond the reasonable control of the requesting party
and failure to grant the postponement would result in undue hardship for the
requesting party.
(B) No party may
presume that a postponement is granted unless duly notified of the granting by
the appeals tribunal.
(C) Any further
requests for a postponement by a party will be denied except in extraordinary
circumstances.
(7) Continuances and Additional Evidence.
(A) Any
hearing may be continued from time-to-time or place-to-place at the discretion
of the hearing officer.
(B) All
parties shall be prepared to introduce all of their evidence when the case is
set for hearing as continuances for additional evidence will be granted only
when the hearing officer is satisfied that the additional evidence is necessary
to a full and complete hearing and was unavailable at the original setting
because of surprise or because the party was unable to obtain the evidence
after diligent and good faith efforts to obtain such evidence.
(C) Hearings rescheduled as a result of
insufficient time to complete the hearing at the first setting will not
include, at the second or subsequent setting, any witnesses or evidence not
available at the original setting subject to subsection (B) of this
section.
(D) If subsequent to
hearing, but prior to mailing of the decision, the hearing officer decides that
an additional hearing is necessary, the parties shall be advised in
writing.
(8) Subpoenas.
(A) Subpoenas to compel the attendance of
witnesses or the production of books, papers, correspondence, memoranda and
other records or items either in-person or by telephone may be issued by a
hearing officer-
1. Upon his/her own motion;
or
2. At his/her discretion, upon
the request of a party who has-
A.
Demonstrated that the evidence sought to be procured is relevant and necessary;
and
B. Made a good faith effort to
obtain the attendance of the witness or the production of the documents but has
been unable to do so.
(B) The subpoena request shall be submitted
to the hearing officer in sufficient time before the hearing to permit
preparation and service of the subpoena before the hearing.
(C) Service of a subpoena may be by certified
mail or personal service. If service is to be by certified mail, the request
shall include a current address of the person to be served and specify that
service is being requested to be by certified mail.
(D) A subpoena shall be served by delivering
a copy of the subpoena to the person named therein no later than forty-eight
(48) hours before the time for the appearance set forth in said
subpoena.
(E) Witnesses subpoenaed
for any hearing before a hearing officer shall be paid witness and mileage fees
in the same amounts as paid in civil actions before the circuit courts of this
state, provided the witness and mileage fees are claimed within five (5) days
of the date of the hearing and certified to by the witness and approved by the
hearing officer Approved payment shall be made out of the Unemployment
Compensation Administration Fund. Under no circumstances shall parties to the
case be granted witness or mileage fees.
(F) A person served with a subpoena or a
subpoena duces tecum may object to its terms by making a
motion to quash as soon as possible after service. The hearing officer shall
resolve the objection and may make an order appropriate to protect the parties
or the witnesses from unreasonable or oppressive demands. If a party, or any
person or organization within the control of a party, fails to obey a subpoena
of a hearing officer, the hearing officer shall treat the evidence requested
but not produced as establishing an inference favorable to the position of the
party who subpoenaed the item subject to the opposing party's right to seek an
order quashing or limiting the scope of the subpoena.
(9) Participation and Representation at Hearings.
(A) A claimant may represent
him/herself or be represented by a duly authorized agent, who may not charge a
fee for the representation.
(B) A
party, which is a corporation, partnership or other business entity authorized
by law may be represented by an officer or a person employed full-time in a
managerial capacity. For purposes of this regulation, managerial capacity
includes any person who has managerial or supervisory duties as defined by the
party.
(C) An employee of a
corporation, partnership, or other business entity authorized by law who is not
an officer or full-time managerial employee may appear, testify and offer
exhibits in hearings in which the business entity is a party. The employee's
participation at the hearing is limited to testifying and offering
exhibits.
(D) Any party may be
represented by a licensed Missouri attorney, a nonresident attorney appearing
in compliance with Supreme Court Rule 9, or an eligible law student complying
with Supreme Court Rule 13.
(E) All
persons who will be acting in a representative capacity on behalf of a party
before the hearing officer shall file notice of their intent to represent the
party as soon as possible after being retained or chosen. Attorneys shall file
an entry of appearance, agents shall file an authorization signed by the
claimant, and representatives shall file a statement of intent to act on behalf
of the entity.
(F) No subsequent
entry of appearance or notice of intent to represent shall be honored absent
written withdrawal by the previous representative.
(G) In order to protect the integrity and
fairness of the appeals process, the hearing officer requires all parties and
persons acting in a representational capacity to comply with the following
rules of conduct:
1. All participants shall
appear for the hearing and be ready to proceed no later than the starting time
listed on the notice of hearing;
2.
All participants shall comply with all directions given by a hearing officer
during a hearing;
3. Participants
may not use dilatory tactics prior to or during a hearing;
4. Participants may not engage in abusive
conduct, harass, intimidate, threaten or cause physical harm to any hearing
officer, party, witness or member of the public in attendance;
5. Participants may not act in a manner
disruptive or disrespectful to the operations of the appeals'
process;
6. All participants shall
act in good faith and with integrity during the representation of a party and
shall adhere to reasonable standards of orderly and ethical conduct;
7. The representative shall, to the extent
reasonably possible, restrain the party represented by that individual from
improprieties in connection with the hearing; and
8. Any individual who fails to follow these
rules will be excluded from the hearing.
(10) Conduct of Hearings.
(A) All hearings shall be open public
hearings and shall be conducted in an orderly manner. The hearing officer shall
review the issues presented and set forth the procedures to be followed during
the hearing. Persons whose presence would be detrimental to the proper conduct
of the hearing may be excluded from the hearing by the hearing officer. The
hearing officer may examine all parties and witnesses and shall determine the
order of testimony and procedure for each hearing. Upon the motion of any party
or the hearing officer, witnesses may be sequestered.
(B) In any hearing before a hearing officer,
the following shall be the applicable rules of evidence and procedure:
1. Oral evidence shall only be taken by oath
or affirmation;
2. Subject to this
chapter's restrictions regarding representation, each party has the right to
call and examine witnesses, to introduce exhibits, to cross-examine opposing
witnesses on any matter relevant to the issues even though that matter was not
a subject of the direct examination, to impeach any witness, regardless of
which party first called the witness to testify, and to rebut the evidence
against him/her;
3. A party who
does not testify in his/her own behalf may be called and examined as if under
cross-examination;
4. The hearing
need not be conducted according to the common law or statutory rules of
evidence or the technical rules of procedure. Hearsay evidence is generally
admissible. Evidence is admissible if it is not irrelevant, immaterial,
privileged or unduly repetitious. Hearsay which is timely objected to shall not
constitute competent evidence which, by itself, will support a finding of fact.
A party or his/her attorney may advise the hearing officer of a defect in the
character of any evidence introduced by voicing an objection. The hearing
officer shall rule on the admissibility of all evidence. Any evidence received
without objection which has probative value shall be considered by the hearing
officer along with other evidence in the case;
5. Any writing or record, whether in the form
of an entry in a book or otherwise, made as a memorandum or record of an act,
transaction, occurrence or event, shall be admissible as evidence of the act,
transaction, occurrence or event, if it was made in the regular course of any
business and that it was the regular course of the business to make the
memorandum or record at the time of the act, transaction, occurrence, or event
or within a reasonable time thereafter. All other circumstances of the making
of the writing or record, may be shown to affect the weight of the evidence,
but the showing shall not affect its admissibility. The term business shall
include business, profession, occupation and calling of every kind;
and
6. All documents introduced as
evidence shall be marked as exhibits. A photocopy may be substituted for an
original document. Whenever practicable, demonstrative and physical evidence
also shall be marked and placed in the record; otherwise, it shall be described
in detail on the record.
(C) If the hearing officer believes that the
deputy's determination did not apply the correct provision(s) of law to the
factual situation presented, the hearing officer, after informing the parties,
may expand or otherwise alter the hearing to include the correct issues
involved. If one (1) or more parties object to the change in the hearing, the
hearing officer shall continue the hearing to allow the parties time to prepare
for the proper issues.
(11) Reassignment of Hearing Officer. A hearing officer may be reassigned under the following conditions:
(A) If for any reason, a hearing officer
cannot complete disposition of an appeal, the case shall be assigned to another
hearing officer;
(B) A hearing
officer shall not conduct a hearing in which he/she may have a personal
interest or conflict of interest or in which he/she would have a personal bias
towards or against any of the parties;
(C) Any party to a proceeding before a
hearing officer may request the disqualification of the hearing officer
assigned to the proceeding by filing with the chief referee a signed, written
statement detailing the reasons why the disqualification is necessary. This
request must be filed no later than five (5) days prior to the scheduled
hearing date. The chief referee, or designee, shall issue a written ruling on
the request. The written ruling shall be interlocutory but may be specified as
a grounds for appeal following the issuance of the decision of the hearing
officer; and
(D) If the chief
referee, or designee, rules that a hearing officer shall not conduct a
scheduled hearing, another hearing officer shall be assigned to hear the
case.
*Original authority: 288.190, RSMo 1951, amended 1972, 1979, 1984, 1996 and 288.220.5, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995.
Disclaimer: These regulations may not be the most recent version. Missouri may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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