2005 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. 

    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; 2005 c 112 art 2 s 
 34