HAR §12-5-93. Benefits appeals

(a) The term "party" or "parties" as used herein shall include the department, claimant, and such employing units as are entitled to notice of determination upon a claim. (b) Any appeal to the referee from a claim determination or redetermination shall be filed in writing at the unemployment insurance office in the county where the claimant resides or in which the claimant was last employed. Deposit of an appeal in the mail, addressed to such office, and a postmark date thereof within the time allowed by law for filing appeals shall be deemed a timely filing. (c) Written notice of hearing, specifying the time and place thereof and those questions which are known to be in dispute, shall be given or mailed to the parties fifteen or more days before the hearing. (d) When deemed necessary by the referee, the parties may be directed in writing to appear before the referee for a prehearing conference to consider: (1) Simplification of the issues; (2) Stipulation by the parties, subject to the approval of the referee, as to all or a portion of the facts involved in the proceedings, or the admission of documents, or both; and (3) Such other matters as may aid in the disposition of the proceedings. The referee may make an order which recites the action taken at the conference, the agreements made by the parties as to any of the matters considered and which limit the issues for hearing to those not disposed of by admissions or agreements of parties. The order, when entered, shall control the subsequent course of the proceeding unless modified at the hearing to prevent manifest injustice. If requested by either party, the order shall be made and entered. The referee may direct either party to prepare the order. (e) Hearings shall be scheduled, held, and conducted as follows: 32 (1) Every hearing and other proceedings which are held under this section shall be scheduled and heard promptly. In the scheduling of proceedings in any case, consideration shall be given to the prompt disposition of any appeal, the daily hours and days of the week established for conducting proceedings on appeals, and the regular places of hearing established within the State. Hearings shall be held in the county in which the appeal is filed except as follows: (i) where the office of unemployment compensation appeals determines that it is necessary to hold the hearing in a county other than the county in which the appeal is filed in order to conduct a fair and impartial hearing; or (ii) with the consent of the parties. Where the hearing is to be held outside of the county in which the appeal is filed, the parties shall be provided with notice of such hearing and shall be provided with the opportunity to object to such hearing. Failure to object to such hearing within the time specified in the notice shall be deemed consent by the parties to such hearing. (2) A proceeding in any case may be rescheduled at the request of an interested party for reasonable cause. (3) A single hearing with all parties appearing at the same time shall be held whenever possible. Hearings may be held with the parties appearing in person, by telephone, or by other suitable communication device approved by the office of unemployment compensation appeals. Appearances by the parties in a case may be by a combination of the foregoing when one or more of the parties is out of the State, or the parties are in different intrastate locations. Where it is impracticable to hold a single hearing, the evidence of the employer, the claimant, or witnesses may be taken separately by the same or different referees upon due notice to all interested parties. The decision shall be based upon the complete record. (4) The proceedings shall be informal, fair, and impartial and shall be conducted in such manner as may be best suited to protect the rights of all parties. (5) Hearings shall be closed, except upon consent of the appearing parties. (6) Prior to the opening of the hearing, the referee shall identify himself or herself to the parties, ascertain the identity of the parties, and insure that the parties have an opportunity to examine the case record. All other communication between any party and the referee, concerning a case before that referee, shall be recorded and made a part of the record. (7) The parties appearing for a hearing before the referee shall be provided written instructions which shall be included in the record, stating the procedures which are to be followed in the conduct of the hearing. (8) The referee shall open the hearings by ascertaining and summarizing the issue or issues involved in the appeal. (9) The parties and their representatives may examine or cross-examine witnesses, inspect documents, and explain or rebut any evidence. (10) An opportunity to present argument shall be afforded the parties, which argument shall be made part of the record. (11) Where a party is not represented by counsel or other agent, the referee shall give that party every assistance that does not interfere with the impartial 33 discharge of the referee's official duties. (12) The referee may examine each party or witness to such extent as the referee deems necessary. (13) All oral testimony shall be under oath or affirmation and shall be recorded. (14) Any issue involved in the claim may be considered and passed upon even though such issue was not set forth as a ground for appeal. Issues not set forth in the notice of hearing, however, shall not be heard or decided without first giving notice to the parties. In providing notice to the parties of a new issue, the referee shall explain that issue to the parties and advise them of their right to a recess, if they so desire, in order to prepare for a hearing upon the new issue. If the parties are willing to continue without a recess and to waive notice as required in subsection (c), the referee may proceed to hear the new issue. (15) Oral or written evidence of any nature, whether or not conforming to the legal rules of evidence, may be accepted. Any official record of the department, including reports submitted in connection with the administration of the employment security law, may be included in the record; provided, however, that the parties are given an opportunity to examine and refute the same. (16) The parties may, subject to the approval of the referee, enter into stipulation as to all or a portion of the facts involved in the proceedings. The referee may make a decision on the basis of the information contained in such stipulations or may take such further testimony or receive such further evidence as the referee deems necessary. (17) Upon a showing of necessity by any party for the issuance of a subpoena to compel the attendance of a witness or the production of accounts, records, and documents at any hearing, a subpoena shall be issued by the referee. (18) Witnesses subpoenaed for any hearing before the referee shall be paid witness and mileage fees by the department in accordance with section 383-99, Hawaii Revised Statutes. (19) Under no circumstances shall parties to a hearing be granted witness fees. Fees for subpoenaed witnesses shall be claimed within ten days from the date of the hearing, certified to by the witness on appropriate forms and approved by the referee. (20) Information from records of the department shall be furnished to any party, to the extent necessary for the proper presentation of that party's case. All requests for such information shall state as clearly as possible the nature of the information desired and shall, unless made at a hearing, be in writing. (21) Any hearing before the referee shall be continued when, in the judgment of the referee, such action is necessary to afford the parties a reasonable opportunity for a fair hearing. In the event of any such action, oral or written notice of the subsequent time and place of the continued hearing shall be given the parties or their representatives. (22) Failure of a party to appear at a hearing shall not result in the decision being automatically rendered against that party. Unless there appears to be good reason for continuing the hearing, the referee shall render a decision on the basis of whatever evidence is properly before the referee. An application for 34 reopening filed by any such party in accordance with this section shall be granted if it appears to the referee that the party has shown good cause for failure to attend. (23) Counsel or other duly authorized agent representing a party may appear at any hearing or take any other action which the party might take under this section. Claimants authorizing a counsel or agent to appear in lieu of the claimant shall submit the authorization in writing not later than the time of the hearing. The referee may for cause bar any person from representing a party, in which event such action shall be set out in the record of the proceedings. (f) The decisions of the referees shall be in writing and shall be signed by the referee. They shall set forth the findings of fact, reasons for the decision, and the decision, and shall be accompanied by a notice specifying the parties' appeal rights from the decision. (g) A file of referee decisions shall be kept in the office of unemployment compensation appeals. Such decisions shall be open for inspection, but the identity of the parties or witnesses shall not be revealed. (h) Any application for reopening shall be in writing and may be filed in any unemployment insurance office within the State or with the office of unemployment compensation appeals. The referee may grant or deny the application without hearing or may notify the parties to appear at a designated place and time for argument on the application. (i) If an application to reopen is granted, or if the referee reopens the decision on the referee's own motion, the referee shall schedule the matter for further hearing and notify the parties to the appeal in the manner provided in this section for notice of hearings. The referee may reconsider the decision upon the evidence already in the record or take such additional evidence as the referee deems necessary in order to decide the case and give the parties a fair hearing. The hearing shall be conducted in the manner provided in this section for conduct of hearing. (j) A referee's decision shall be reopened only once by a particular party. A denial of an application to reopen the decision shall not be subject to further reopening. Thereafter, persons who have objection to the decision may obtain judicial review in the circuit court as provided in section 383-41, Hawaii Revised Statutes. (k) In the event that an application for reopening is denied, the reasons for the denial shall be stated. (l) The time to initiate a judicial review shall run from the mailing or, if not mailed, delivery date of the notice of further decision when a decision has been reopened, or the mailing or, if not mailed, delivery date of a denial of an application to reopen an appeals referee's decision. (m) A referee shall be disqualified under the following circumstances: (1) The referee shall not participate in the hearing of an appeal in which the referee has any direct or indirect interest in the claim or the issues involved in the claim, or in which the referee's relative by affinity or consanguinity within the third degree is interested. The director shall be notified by the referee of any such disqualification. (2) Whenever any party files with the director an affidavit that the referee has a personal bias or prejudice against such party or in favor of any opposite party, the affidavit shall state the facts and the reason for the belief that bias or prejudice exists and shall be filed before the hearing, or good cause shall be 35 shown for the failure to file it within such time. The director or duly authorized representative of the director may disqualify the referee from proceeding in such matter where the director finds the issue of the referee's impartiality is valid and a party's opportunity for a fair hearing is not possible. The referee may disqualify himself or herself by filing with the director a certificate that the referee deems himself or herself unable for any reason to preside with absolute impartiality in a pending matter. [Eff. 6/26/81; am 12/31/84; am 7/16/98] (Auth: HRS ''383-39, 383-92) (Imp: HRS ''383-37 to 383-42) ''12-5-94 to 12-5-98 (Reserved) 36 SUBCHAPTER 4 COMBINING OF WAGE CREDITS Historical Note: Subchapter 4 is based substantially upon Regulation IV of the Rules and Regulations of the Department of Labor and Industrial Relations relating to Combining of Wage Credits. [Eff. 12/16/76; R 6/26/81]