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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 unemployment law judge. (a) Upon a timely appeal
having been filed, the department must 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 must 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 before the date of the hearing.
    (b) The evidentiary hearing is conducted by an unemployment law judge without regard
to any burden of proof as an evidence gathering inquiry and not an adversarial proceeding. The
unemployment law judge must ensure that all relevant facts are clearly and fully developed. The
department may 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 has
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, is competent evidence of the facts contained in it.
    (c) After the conclusion of the hearing, upon the evidence obtained, the unemployment law
judge must 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 under subdivision 2.
    (d) Regardless of paragraph (c), if the appealing party fails to participate in the evidentiary
hearing, the unemployment law judge has the discretion to dismiss the appeal by summary order.
By failing to participate, the appealing party is considered to have failed to exhaust available
administrative remedies unless the appealing party files a request for reconsideration under
subdivision 2 and establishes good cause for failing to participate in the evidentiary hearing under
subdivision 2, paragraph (d). Submission of a written statement does not constitute participation.
The applicant must participate personally and appearance solely by a representative does not
constitute participation.
    (e) Only employees of the department who are attorneys licensed to practice law in
Minnesota may 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 20 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 applies to a request for reconsideration. If a
request for reconsideration is timely filed, the unemployment law judge must 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 must send a
notice, by mail or electronic transmission, to all involved parties that a request for reconsideration
has been filed. The notice must 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 does not apply if paragraph (d) is applicable.
    (c) In deciding a request for reconsideration, the unemployment law judge must 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 that a request for reconsideration has been filed, the party who failed to participate
must 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 does 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 must 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 must 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 is the final department decision on the matter and is 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 must, 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 must 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 in accordance with the determination, or prior decision of the unemployment
law judge, is considered an overpayment of those unemployment benefits. A decision or order
issued under this section that results in an overpayment of unemployment benefits must set out the
amount of the overpayment and the requirement under section 268.18, subdivision 1, that the
overpaid unemployment benefits must be repaid.
    (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 is not considered an overpayment of
those unemployment benefits under section 268.18, subdivision 1.
    (d) If an unemployment law judge, under subdivision 2, orders the taking of additional
evidence, the unemployment law judge's prior decision must continue to be enforced until new
findings of fact and decision are made by the unemployment law judge.
    Subd. 4. Oaths; subpoenas. An unemployment law judge has authority to 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 are enforceable
through the district court in Ramsey County. Witnesses subpoenaed, other than an involved
applicant or involved employer or officers and employees of an involved employer, must 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 under subdivision 1 must be recorded. A copy of any recorded testimony and exhibits
offered or received into evidence at the hearing must, 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 may later be made available only under a district court order. A subpoena is
not 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 may 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 must pay to the court the required filing
fee and upon the service of the writ must 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 under subdivision 1, the employer
must pay to the department the cost of preparing the transcript. That money is 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 must furnish to the applicant at no cost a written transcript
of any testimony received at the evidentiary hearing conducted under subdivision 1, and, if
requested, a copy of all exhibits entered into evidence. No filing fee or cost bond is 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 is considered the primary responding party to any judicial action
involving an unemployment law judge's decision. The department may be represented by an
attorney licensed to practice law in Minnesota 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; 2007 c 128 art 1 s 18; art 2 s 9,10; art 3 s 18,24; art 6 s 76-79