Martin Law PLLC represents employers in DC unemployment insurance (“UI”) appeals at the DC Office of Administrative Hearings (“OAH”) and at the DC Court of Appeals. We also represent employers that are challenging their UI tax rate or have been accused of State Unemployment Tax Act (“SUTA”) Dumping” by the DC Department of Employment Services (“DOES”). Tom has been practicing in this particularized area of DC UI since 2008 and has represented hundreds of employers in UI hearings as well as at the DC Court of Appeals. Please contact our firm if your company or organization has questions about DC UI law.
DOES has many functions. Included among them is to administer the UI Program and set UI taxes for employers.
The UI Program is intended to be a temporary government assistance program to help bridge the gap when an employee is separated from employment through no fault of their own. The law in the District of Columbia assumes that applicants are eligible and qualified to receive benefits. After an individual applies for UI, a DOES Claims Examiner will make an initial determination whether the applicant is eligible and qualified to receive benefits. Eligibility concerns factors like wages earned in the base period and whether the applicant owes any payments to DOES for overpayments made to them in the past. Qualification concerns whether the applicant was separated from employment for a disqualifying reason such as misconduct (simple or gross), or voluntary separation without good cause connected to the work. A Claims Examiner will take information from the applicant and information from the employer, often from the Request for Separation Information, and will make an Initial Determination, which is sent to both parties at their address of record.
Within a certain number of days, either party may appeal the Initial Determination at OAH. The deadline to appeal can be extended for good cause shown.
Generally, within a number of weeks of the filing of the appeal, OAH will schedule an administrative hearing. At these hearings, which are now almost exclusively remote, the issues are usually (1) was the appeal timely filed, and (2) did the former employee (“Claimant”) engage in disqualifying misconduct or voluntarily separate without good cause connected to the work. If the Claimant engaged in misconduct, the secondary consideration will be whether that misconduct was “simple” or “gross.”
Many employers represent themselves at these UI hearings. Other employers elect to have legal representation. Tom has represented hundreds of employers in these hearings since 2008.
The UI program is exclusively funded by employers and DOES sets an employer’s UI tax rate based upon the employer’s experience. Some nonprofits elect to, essentially, pay per claim, but many others elect to pay quarterly UI taxes. Experience is determined by the payment of UI benefits from that employer’s UI account. Oversimplifying a bit, employer’s pay quarterly taxes into their account and that money grows in the employer’s account until some or all the funds are used to pay UI benefits to that employer’s former employees. An employer’s tax rate may increase to replenish funds paid as benefits.
SUTA Dumping is illegal. It is a scheme in which an employer paying a high UI tax rate creates a shell company to take advantage of the new employer’s lower tax rate, thus (illegally) reducing the original employer’s UI taxes. Many state departments of labor run software to monitor shifts of groups of employees from one employer to another. These monitoring systems can sometimes flag companies that are acting lawfully but are incorrectly suspected of SUTA Dumping. If your organization has received notice from DOES that it is suspected of SUTA Dumping, please contact our firm.
Generally, within thirty calendar days of the date stamp on an OAH Final Order in a UI case, either party may appeal the Final Order to the DC Court of Appeals. Unlike many jurisdictions requiring an intermediate level appeal of a UI Final Order, under the Administrative Procedures Act, UI appeals go directly to DC’s highest court. Though the law in DC strongly favors granting benefits, Tom has a record of success in UI appeals. See Pyne v. Mb Staffing Services, LLC, 39 A.3d 1258 (D.C. 2012). If your organization is considering an appeal or the Court of Appeals has sent an Order requiring your organization to retain legal counsel because the Claimant has appealed, please contact our firm.