What to Expect when a Former Employee Files a Claim

Protests

An employee or employer may appeal the initial determination for benefits. The organization may appeal a benefits determination to an Administrative Law Judge (ALJ). ALJ hearings are usually conducted over the telephone but may occur in person. If the ALJ sides against the organization, it can appeal again—first to the Review Board and then to the Indiana Court of Appeals if needed.

Employers may appeal certain decisions made about their SUTA account by appealing to a Liability Administrative Law Judge (LALJ).

These appeals are only allowed for the following:

• Original determinations of qualification or successorship (whether an employer qualifies or inherits another account)
• Original liability assessments
• Audit findings
• Investigation findings
• Benefit charge posting

The employer can protest only the order and percentage of charges posted against their experience balance as it relates to other employers in the base period through the LALJ. The claimant’s eligibility to receive benefits is a matter for the ALJ and not the LALJ.

Benefit Eligibility Appeals

The ALJs and Review Board have jurisdiction over benefit eligibility appeals. Employers or individuals appealing a Determination of Eligibility (DOE) may request a hearing before an ALJ. ALJ hearings are informal, but the fundamental rules of evidence and procedure apply.

When there is a hearing, the parties involved have an obligation to be present with all relevant documents and witnesses. Relevant documents might include:

• Attendance records
• Performance reports
• Counseling records
• Work rules or policies
• Physician’s statements
• Employment handbook (and signed employee acknowledgement documentation)
• Written policies and procedures (and signed employee acknowledgement documentation)

The ALJ will make a decision based upon the evidence and testimony the parties present at the hearing. The ALJ will consider all evidence that would be admissible under common law and the statutory rules of evidence.

Testifying witnesses should have personal knowledge (from their own first-hand experience) of the facts or circumstances. The ALJ can accept written statements, whether notarized or not, but will give them no weight because they are not subject to cross-examination or rebuttal.

Postponement of Hearings

Hearings are postponed in cases of emergency only. Any other request to postpone must be made as soon as possible and well in advance of the scheduled hearing date.  ALJs will not automatically grant a postponement. The ALJ will consider the merits of each request.

If the organization is the appealing party and fails to appear at the hearing and a request for postponement was not granted, the ALJ will dismiss the appeal. A “Notice of Dismissal” will be sent to both parties. The organization had seven (7) days from the date of the Notice of Dismissal to file a written request with the ALJ for reinstatement of the appeal. The organization’s request must include a good reason for the failure to appear.

Review Board Proceedings

The Review Board does not handle appeals pertaining to premium liability. These must be directed to the Indiana Court of Appeals.

In most cases, the Review Board will examine the record of the ALJ hearing and will reach its decision based upon the ALJ hearing. The Review Board may grant a request to introduce additional evidence, if the appealing party shows good cause that the new evidence is relevant and explains why the new evidence was not previously presented to the ALJ. A request to introduce new evidence should be included with the letter requesting a Review Board appeal.

Employer Liability Protests

Liability Administrative Law Judges (LALJs) conduct hearings concerning employer coverage and premium liability.

The LALJ’s jurisdiction is limited to disagreements between employers and DWD regarding:

• Assessments for interest, taxes, contributions  , payment in lieu of contribution, surcharge, and penalties
• Successorship, including these related issues:
• The transfer of accounts
• The determination of rates of contributions
• Determinations under the SUTA Dumping Prevention Act (Ind. Code § 22-4-11.5 )
• Employer benefit charging
• Claims for refunds or adjustments
• The definition of covered employment (worker misclassification) under Ind. Code § 22-4-8 

The organization may protest an initial determination by delivering an Unemployment Insurance Tax Protest (SF55109) to the email address, DWD_Tax_Liability_Protests@dwd.IN.gov, as indicated on the Unemployment Insurance Tax Protest form.

In addition to the State Form 55109, please submit all the following:

• Information regarding the basis for the protest
• The facts or evidence the protesting party relied on in determining that the actions of DWD were erroneous
• A copy of the document that prompted the protest
• Any supporting documents that the protesting party would like to have examined in support of the claim.

The protesting party must sign the protest. If the protesting party is represented by counsel, the name and contact information for the representative and for the protesting party should be included on the protest document. The protesting party also may appear either pro se or  through an authorized full-time employee. Non-attorney agents cannot represent a protesting party in a tax liability hearing per Ind. Code § 22-4-32-3 . This requirement is different from representation in a hearing on claimant benefit eligibility where a lay person or agent may represent a party per Ind. Code § 22-4-17-3.2 .

Protests must be received within fifteen (15) days after the date the initial determination or notice being protested is sent. Filing a protest after the fifteen (15) day deadline may result in a dismissal.

Proceedings before a Liability Administrative Law Judge (LALJ):

Upon receipt of the protest, the LALJ will set a date for a telephonic Pre-Hearing Conference and notify the interested parties. The LALJ will provide each party with a Notice of Pre-Hearing Conference. The Notice will inform the parties of the issues raised by the protest, the date and time of the telephonic Pre- Hearing Conference, the requirement for the protesting party to contact IDWD Legal no later than seven

(7) days prior to the Pre-Hearing Conference to discuss the status of the protest. The parties should be prepared to discuss their availability and availability of witnesses for future conferences and hearing, whether the case has settled, and additional issues or parties that may be necessary to resolve the matter. Appearance at the Pre-Hearing Conference is mandatory and failure to appear within fifteen (15) minutes of the scheduled start time may result in dismissal of the protest in its entirety. The LALJ will contact the parties for the Pre-Hearing Conference at the telephone contact number that they submit to the LALJ in writing prior to the hearing. Parties are to remain available at the contact number that was provided to the LALJ up to and including sixty (60) minutes from the scheduled start time.

In general, the Indiana Rules of Trial Procedure and Indiana Rules of Evidence shall govern proceedings before an administrative law judge. 646 Ind. Admin. Code 5-10-5 .

Parties are encouraged to engage in settlement negotiations and keep the LALJ updated regarding status of settlement negotiations. Parties may make requests of the LALJ and should send copies of their requests to all noticed parties. Parties may file requests for continuances of an upcoming Pre-Hearing Conference and requests for enlargement of time for pending deadlines if the Pre-Hearing Conference has occurred.

If the protested matter proceeds to a hearing the LALJ will discuss during status conference and Final Pre-Hearing Conference, hearing dates, hearing location, dates for exchange of final witness and exhibit lists, dates for parties to exchange exhibits, and a date for parties to file joint stipulations as to facts and documents not in dispute.

After the hearing, the LALJ will issue a written decision to all interested parties. Decisions of the LALJ are appealable. The decision of the LALJ becomes final 30 days after the mailing date, unless there is a filing of a Notice of Appeal within the 30 days, and a subsequent case filed with the Indiana Court of Appeals. The Notice of Appeal delays the decision for 30 days.

Indiana Court of Appeals

Appeals to the Indiana Court of Appeals may be made if the appealing party disagrees with the Review Board or LALJ decision. These appeals are held under the same terms and conditions that govern appeals in all civil actions. (See www.in.gov/judiciaryfor more information.) The Court does not re-try cases, but it does clarify questions of law raised by court decisions.

Reasonable Cause Waivers for Late Payment of Contribution or Reimbursement

The Department has limited discretionary authority to waive the assessment of interest or the assessment of a delinquency (penalty) rate where the employer can show that a reasonable businessperson in the same circumstances would not have been able to comply with the statute to report and pay their unemployment on time.

To initiate a request for a waiver of penalty or interest for not making timely payment on a quarterly report or reimbursable bill, go to E S S and select the menu/commands Requests > Request Interest/Penalty Waiver > Add Waiver. The organization will need to select the quarter and year for which a waiver is being requested and provide information about why the Department should grant the waiver request.

A tax worker will reach out to the organization, usually by email, about the request as additional documentation is always required before DWD can approve a waiver request. If the organization does not respond to the request for additional information, or if the organization does not provide the documentation requested within three (3) business days of the tax worker making the request, then the request will be denied. A notice indicating approval or denial of the waiver is sent to the account holder.

Reasonable cause includes circumstances as prescribed by the department for such unavoidable events as:

• Acts of:
  • Nature;
  • God;
  • Terrorism;
  • War;
• Death or incapacitation of an owner or preparer;
• Theft, embezzlement, or deceit by a responsible party  , fiduciary, or trusted employee;
• E S S unavailable / widespread internet outages (does not apply to employer password issues);
• Reliance on a third-party provider (does not apply to interest assessments but can be a basis for removing a penalty assessment). The third party must be able to prove to the satisfaction of the Agency that they have changed business practices in a manner that effectively eliminates the potential for recurrence. Administrative errors, staffing issues, data entry errors, and similar reasons to not meet the standard for waiver approval.

This list is not intended to be all inclusive as each request is evaluated on the merits and documentation provided by the employer.

If the organization has an electronic filing waiver submit a request in writing to DWD.

Requests must be mailed to:

IDWD – Employer Account

Maintenance ATTN: Request for Waiver

10 N Senate Ave. RM SE 202 Indianapolis, IN 46204-2277

Wage Data and Other Confidential Information

Information provided by a claimant or employer is confidential under the Act and can only be shared if DWD receives a court order or because a State or Federal agency has the legal authority to request and receive access to the information.

Pursuant to 20  CFR § 603.11, please be advised that confidential claimant unemployment compensation information and employer wage information may be requested and utilized for other governmental purposes, including, but not limited to, verification of eligibility under other government programs.

Merit Rate Penalty Waiver Administration

1. A corrective action plan is required from the employer(State Form 53034)
   • The employer will have ten business days to return the plan to DWDESSCommunications@dwd.IN.gov. If the plan is not received, the employer will receive a merit rate recalculation denial letter. If the plan is received but incomplete, insufficient, or otherwise not eligible to be approved, the employer will receive a follow-up email with additional information and, where appropriate, an offer to correct and resubmit the plan. If the plan is received and approved, the employer will receive a merit rate recalculation approval letter followed by a revised merit rate notice.
2. Additional information is needed to evaluate the request.
   • The employer will have ten business days to supplement their request for waiver. If the additional information is not received, the employer will receive a merit rate recalculation denial letter. If the additional information is received, the additional information email will be treated as an initial request.
3. The Waiver is Approved

• If the waiver is approved, the employer will be mailed a merit rate recalculation approval letter followed by a revised merit rate notice.

If the employer is approved for a waiver and the employer is later determined to have violated the conditions for the waiver resulting in the waiver being rescinded:

• The employer will be notified by email to the address from which the waiver request was submitted.
• The employer will receive a merit rate recalculation approval letter.
• The employer will receive a revised merit rate notice.
• The employer will receive a notice and demand for the additional contribution, penalties, and interest payable as a result.

An employer will be determined to have violated the conditions for the waiver is the payment used to satisfy the delinquency is subsequently dishonored, stopped, or returned by the payer’s bank.

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