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Minnesota Legislature

Office of the Revisor of Statutes

Chapter 268

Section 268.105

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268.105 Appeals.

Subdivision 1. Evidentiary hearing by an unemployment law judge. (a) Upon a timely appeal having been filed, the department shall send a notice of appeal to all involved parties that an appeal has been filed, that a de novo due process evidentiary hearing will be scheduled, and that the parties have certain rights and responsibilities regarding the hearing. The department shall set a time and place for a de novo due process evidentiary hearing and send notice to any involved applicant and any involved employer, by mail or electronic transmission, not less than ten calendar days prior to the date of the hearing.

(b) The evidentiary hearing shall be conducted by an unemployment law judge without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding. The unemployment law judge shall ensure that all relevant facts are clearly and fully developed. The department shall adopt rules on evidentiary hearings. The rules need not conform to common law or statutory rules of evidence and other technical rules of procedure. The department shall have discretion regarding the method by which the evidentiary hearing is conducted. A report of any employee of the department, except a determination, made in the regular course of the employee's duties, shall be competent evidence of the facts contained in it.

(c) After the conclusion of the hearing, upon the evidence obtained, the unemployment law judge shall make findings of fact and decision and send those, by mail or electronic transmission, to all involved parties. The unemployment law judge's decision is the final department decision unless a further appeal is filed pursuant to subdivision 2.

(d) Only employees of the department shall serve as unemployment law judges. A senior unemployment review judge may personally hear or transfer to another unemployment law judge any proceedings pending before an unemployment law judge. Any proceedings removed to a senior unemployment review judge shall be heard in accordance with this subdivision.

Subd. 2. De novo review by a senior unemployment review judge. (a) Except as provided under subdivision 2a, any involved applicant or involved employer may appeal a decision of an unemployment law judge and obtain a de novo review by a senior unemployment review judge by filing with a senior unemployment review judge an appeal within 30 calendar days after the sending of the unemployment law judge's decision. A senior unemployment review judge within the same period of time may, on a senior unemployment review judge's own motion, order a de novo review of any decision of an unemployment law judge.

(b) A senior unemployment review judge shall be an attorney who is an employee of the department.

(c) Upon de novo review, a senior unemployment review judge shall, on the basis of that evidence submitted at the evidentiary hearing under subdivision 1, make findings of fact and decision, or remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence. A senior unemployment review judge shall, independent of the findings of fact and decision of the unemployment law judge, examine the evidence and make those findings of fact as the evidence, in the judgment of the senior unemployment review judge require, and make that decision as the facts found by the senior unemployment review judge require.

(d) A senior unemployment review judge may conduct a de novo review without argument by any involved party, or a senior unemployment review judge may allow written argument. A senior unemployment review judge shall not, except for purposes of deciding whether to remand a matter to an unemployment law judge for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the unemployment law judge.

(e) The senior unemployment review judge shall send, by mail or electronic transmission, to any involved party the senior unemployment review judge's findings of fact and decision. The decision of the senior unemployment review judge is the final decision of the department. Unless judicial review is sought under subdivision 7, the decision of the senior unemployment review judge shall become final 30 calendar days after sending.

Subd. 2a. Orders by a senior unemployment review judge. (a) If an applicant or employer files an appeal in a matter where an unemployment law judge affirmed a determination issued under section 268.101, and there is no dispute regarding the determinative facts, a senior unemployment review judge shall have the discretion to decline to conduct a de novo review. If de novo review is declined, the senior unemployment review judge shall issue an order adopting the unemployment law judge's findings of fact and decision.

(b) If an involved party fails, without good cause, to appear and participate at the evidentiary hearing conducted by an unemployment law judge under subdivision 1, and that party files an appeal, a senior unemployment review judge shall have the discretion to decline to conduct a de novo review. If de novo review is declined, the senior unemployment review judge shall issue an order dismissing the appeal.

Submission of a written statement shall not constitute an appearance and participation at an evidentiary hearing for purposes of this paragraph.

All involved parties must be notified of this paragraph with the notice of appeal and notice of hearing provided for under subdivision 1. The senior unemployment review judge shall allow for the submission of a written argument on the issue of good cause before dismissing an appeal under this paragraph.

"Good cause" for purposes of this paragraph is a compelling reason that would have prevented a reasonable person acting with due diligence from appearing and participating at the evidentiary hearing.

(c) The senior unemployment review judge shall send to any involved party the order issued under this subdivision. The order may be sent by mail or electronic transmission. Unless judicial review is sought under subdivision 7, the order of a senior unemployment review judge becomes final 30 calendar days after sending.

Subd. 3. Withdrawal of appeal. (a) Any appeal that is pending before an unemployment law judge or a senior unemployment review judge may be withdrawn by the appealing person, or an authorized representative of that person, upon filing of a notice of withdrawal.

(b) The appeal shall, by order, be dismissed if a notice of withdrawal is filed, unless an unemployment law judge or a senior unemployment review judge, by order, directs that further adjudication is required for a proper result.

(c) A notice of withdrawal may be filed by mail or by electronic transmission.

Subd. 3a. Decisions. (a) If an unemployment law judge's decision or a senior unemployment review judge's decision or order allows unemployment benefits to an applicant, the unemployment benefits shall be paid regardless of any appeal period or any appeal having been filed.

(b) If an unemployment law judge's decision modifies or reverses a determination allowing unemployment benefits to an applicant, any benefits paid pursuant to the determination is considered an overpayment of those unemployment benefits under section 268.18, subdivision 1.

(c) If a senior unemployment review judge's decision modifies or reverses an unemployment law judge's decision allowing unemployment benefits to an applicant, any unemployment benefits paid pursuant to the unemployment law judge's decision is considered an overpayment of those unemployment benefits under section 268.18, subdivision 1.

(d) If a senior unemployment review judge affirms an unemployment law judge's decision on an issue of disqualification that allows unemployment benefits to an applicant and the senior unemployment review judge's decision or order is reversed by the Minnesota Court of Appeals or the Supreme Court of Minnesota, the applicant shall not be disqualified from unemployment benefits under section 268.095, subdivision 10.

(e) If a senior unemployment review judge, pursuant to subdivision 2, remands a matter to an unemployment law judge for the taking of additional evidence, the prior unemployment law judge's decision shall continue to be enforced until new findings of fact and decision are made by an unemployment law judge.

Subd. 4. Testimonial powers. An unemployment law judge and a senior unemployment review judge may administer oaths and affirmations, take depositions, and issue subpoenas to compel the attendance of witnesses and the production of documents and other personal property considered necessary as evidence in connection with the subject matter of an evidentiary hearing. The subpoenas shall be enforceable through the district court in the district that the subpoena is issued. Witnesses subpoenaed, other than an involved applicant or involved employer or officers and employees of an involved employer, shall be paid by the department the same witness fees as in a civil action in district court.

Subd. 5. Use of evidence; data privacy. (a) All testimony at any evidentiary hearing conducted pursuant to subdivision 1 shall be recorded. A copy of any recorded testimony and exhibits offered or received into evidence at the hearing shall, upon request, or upon directive of a senior unemployment review judge, be furnished to a party at no cost during the time period for filing an appeal to a senior unemployment review judge or while such an appeal is pending. If requested, the department shall make available a device for listening to the recording if an appeal is pending before a senior unemployment review judge under subdivision 2.

(b) Regardless of any provision of law to the contrary, if recorded testimony and exhibits received into evidence at the evidentiary hearing are not requested during the time period for filing an appeal to a senior unemployment review judge, or while such an appeal is pending, that testimony and other evidence shall later be made available to an involved party only pursuant to a court order. A subpoena shall not be considered a court order.

(c) Testimony obtained under subdivision 1, may not be used or considered for any purpose, including impeachment, in any civil, administrative, or contractual proceeding, except by a local, state, or federal human rights agency with enforcement powers, unless the proceeding is initiated by the department.

Subd. 5a. No collateral estoppel. No findings of fact or decision or order issued by an unemployment law judge or a senior unemployment review judge may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, be it contractual, administrative, or judicial, except proceedings provided for under this chapter, regardless of whether the action involves the same or related parties or involves the same facts.

Subd. 6. Representation; fees. (a) In any proceeding under subdivision 1, 2, or 2a, an applicant or involved employer may be represented by any agent.

(b) Except for services provided by an attorney-at-law, an applicant shall not be charged fees, costs, or disbursements of any kind in a proceeding before an unemployment law judge, a senior unemployment review judge, the Minnesota Court of Appeals, or Supreme Court of Minnesota.

Subd. 7. Judicial review. (a) The Minnesota Court of Appeals shall, by writ of certiorari to the department, review the senior unemployment review judge's decision under subdivision 2 or order under subdivision 2a, provided a petition for the writ is filed with the court and a copy is served upon the senior unemployment review judge or the commissioner and any other involved party within 30 calendar days of the sending of the senior unemployment review judge's decision under subdivision 2 or order under subdivision 2a.

(b) Any employer petitioning for a writ of certiorari shall pay to the court the required filing fee and upon the service of the writ shall furnish a cost bond to the department in accordance with the Rules of Civil Appellate Procedure. If the employer requests a written transcript of the testimony received at the evidentiary hearing conducted pursuant to subdivision 1, the employer shall pay to the department the cost of preparing the transcript. That money shall be credited to the administration account.

(c) Upon issuance by the Minnesota Court of Appeals of a writ of certiorari as a result of an applicant's petition, the department shall furnish to the applicant at no cost a written transcript of any testimony received at the evidentiary hearing conducted pursuant to subdivision 1, and, if requested, a copy of all exhibits entered into evidence. No filing fee or cost bond shall be required of an applicant petitioning the Minnesota Court of Appeals for a writ of certiorari.

(d) The department shall be considered the primary responding party to any judicial action involving a senior unemployment review judge's decision or order. The department may be represented by an attorney who is an employee of the department.

HIST: 1995 c 54 s 11; 1996 c 417 s 22,31; 1997 c 66 s 60; 1998 c 265 s 31,44; 1999 c 107 s 47,66; 2000 c 343 s 4; 2001 c 175 s 44; 1Sp2003 c 3 art 2 s 15; 2004 c 183 s 71