2006 Minnesota Statutes

268.105 APPEALS.
    Subdivision 1. Evidentiary hearing by an unemployment law judge. (a) Upon a timely
appeal having been filed, the department shall send, by mail or electronic transmission, 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. When the credibility of an involved party or witness testifying in an
evidentiary hearing has a significant effect on the outcome of a decision, the unemployment law
judge must set out the reason for crediting or discrediting that testimony. The unemployment law
judge's decision is final unless a request for reconsideration is filed pursuant to subdivision 2.
(d) Only employees of the department who are attorneys shall serve as unemployment law
judges. The commissioner may transfer to another unemployment law judge any proceedings
pending before an unemployment law judge.
    Subd. 2. Request for reconsideration. (a) Any involved applicant, involved employer, or
the commissioner may, within 30 calendar days of the sending of the unemployment law judge's
decision under subdivision 1, file a request for reconsideration asking the unemployment law
judge to reconsider that decision. Section 268.103 shall apply to a request for reconsideration. If a
request for reconsideration is timely filed, the unemployment law judge shall issue an order:
(1) modifying the findings of fact and decision issued under subdivision 1;
(2) setting aside the findings of fact and decision issued under subdivision 1 and directing
that an additional evidentiary hearing be conducted under subdivision 1; or
(3) affirming the findings of fact and decision issued under subdivision 1.
(b) Upon a timely request for reconsideration having been filed, the department shall send a
notice, by mail or electronic transmission, to all involved parties that a request for reconsideration
has been filed. The notice shall inform the involved parties:
(1) of the opportunity to provide comment on the request for reconsideration, and the right
under subdivision 5 to obtain a copy of any recorded testimony and exhibits offered or received
into evidence at the evidentiary hearing;
(2) that providing specific comments as to a perceived factual or legal error in the decision,
or a perceived error in procedure during the evidentiary hearing, will assist the unemployment
law judge in deciding the request for reconsideration;
(3) of the right to obtain any comments and submissions provided by the other involved party
regarding the request for reconsideration; and
(4) of the provisions of paragraph (c) regarding additional evidence.
This paragraph shall not apply if paragraph (d) is applicable.
(c) In deciding a request for reconsideration, the unemployment law judge shall not, except
for purposes of determining whether to order an additional evidentiary hearing, consider any
evidence that was not submitted at the evidentiary hearing conducted under subdivision 1.
The unemployment law judge must order an additional evidentiary hearing if an involved
party shows that evidence which was not submitted at the evidentiary hearing: (1) would likely
change the outcome of the decision and there was good cause for not having previously submitted
that evidence; or (2) would show that the evidence that was submitted at the evidentiary hearing
was likely false and that the likely false evidence had an effect on the outcome of the decision.
(d) If the involved applicant or involved employer who filed the request for reconsideration
failed to participate in the evidentiary hearing conducted under subdivision 1, an order setting
aside the findings of fact and decision and directing that an additional evidentiary hearing be
conducted must be issued if the party who failed to participate had good cause for failing to do so.
In the notice of the request for reconsideration, the party who failed to participate shall be informed
of the requirement, and provided the opportunity, to show good cause for failing to participate. If
the unemployment law judge determines that good cause for failure to participate has not been
shown, the unemployment law judge must state that in the order issued under paragraph (a).
Submission of a written statement at the evidentiary hearing under subdivision 1 shall not
constitute participation for purposes of this paragraph.
All involved parties must be informed of this paragraph with the notice of appeal and notice
of hearing provided for in subdivision 1.
"Good cause" for purposes of this paragraph is a reason that would have prevented a
reasonable person acting with due diligence from participating at the evidentiary hearing.
(e) A request for reconsideration shall be decided by the unemployment law judge who
issued the findings of fact and decision under subdivision 1 unless that unemployment law judge:
(1) is no longer employed by the department; (2) is on an extended or indefinite leave; (3) has
been disqualified from the proceedings on the judge's own motion; or (4) has been removed from
the proceedings as provided for under subdivision 1 or applicable rule.
(f) The unemployment law judge shall send to any involved applicant or involved employer,
by mail or electronic transmission, the order issued under this subdivision. An order modifying
the previously issued findings of fact and decision or an order affirming the previously issued
findings of fact and decision shall be the final department decision on the matter and shall be final
and binding on the involved applicant and involved employer unless judicial review is sought
under subdivision 7.
    Subd. 2a.[Repealed by amendment, 2005 c 112 art 2 s 34]
    Subd. 3. Withdrawal of appeal. (a) Any appeal that is pending before an unemployment
law 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 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 order allows
unemployment benefits to an applicant, the unemployment benefits shall be paid regardless of any
request for reconsideration or any appeal to the Minnesota Court of Appeals having been filed.
(b) If an unemployment law judge's decision or order modifies or reverses a determination, or
prior decision of the unemployment law judge, allowing unemployment benefits to an applicant,
any benefits paid pursuant to the determination, or prior decision of the unemployment law
judge, is considered an overpayment of those unemployment benefits under section 268.18,
subdivision 1 .
(c) If an unemployment law judge's order under subdivision 2 allows unemployment benefits
to an applicant under section 268.095 because of a quit or discharge and the unemployment
law judge's decision is reversed by the Minnesota Court of Appeals or the Supreme Court of
Minnesota, any unemployment benefits paid the applicant shall not be considered an overpayment
of those unemployment benefits under section 268.18, subdivision 1.
(d) If an unemployment law judge, pursuant to subdivision 2, orders the taking of additional
evidence, the unemployment law judge's prior decision shall continue to be enforced until new
findings of fact and decision are made by the unemployment law judge.
    Subd. 4. Testimonial powers. An unemployment law 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, be furnished to a
party at no cost during the time period for filing a request for reconsideration or while a request
for reconsideration is pending.
(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
a request for reconsideration, or while a request for reconsideration is pending, that testimony and
other evidence shall later be made available only pursuant to a district court order. A subpoena
shall not be considered a district 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 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 or 2, 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, the
Minnesota Court of Appeals, or the Supreme Court of Minnesota.
    Subd. 7. Judicial review. (a) The Minnesota Court of Appeals shall, by writ of certiorari to
the department, review the unemployment law judge's decision, provided a petition for the writ is
filed with the court and a copy is served upon the unemployment law judge or the commissioner
and any other involved party within 30 calendar days of the sending of the unemployment law
judge's order under subdivision 2.
(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 Minnesota Court of Appeals may affirm the decision of the unemployment law
judge or remand the case for further proceedings; or it may reverse or modify the decision if the
substantial rights of the petitioner may have been prejudiced because the findings, inferences,
conclusion, or decision are:
(1) in violation of constitutional provisions;
(2) in excess of the statutory authority or jurisdiction of the department;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) unsupported by substantial evidence in view of the entire record as submitted; or
(6) arbitrary or capricious.
(e) The department shall be considered the primary responding party to any judicial action
involving an unemployment law judge's decision. The department may be represented by an
attorney who is an employee of the department.
History: 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; 2005 c
112 art 2 s 34