Opinion
C.A. Nos. 98A-01-010-WTQ, 98A-03-004-WTQ.
January 26, 2000.
Honorable William T. Quillen, Judge, Superior Court, Daniel L. Herrmann Courthouse, Wilmington, DE 19801, By Hand Delivery
EXHIBIT B
Dear Judge Quillen:
You have asked counsel to review the Rules and Regulations of the Board and advise the Court whether this appeal is affected by any Rule and Regulation of the Board. Counsel for the Unemployment Insurance Appeal Board has reviewed the Regulations submitted to the Court in this case and concludes that they do not affect the issues in this appeal.
The affect of the Rules and Regulations on the administrative processing of unemployment claims in Delaware requires an understanding of the history of such claims and the Rules and Regulations applicable to these claims. Prior to June 22, 1970, a State agency originally entitled the Unemployment Compensation Commission and later named the Employment Security Commission (Commission) was responsible for all matters involving unemployment claims. 19 Del. C. ch. 31 and ch. 33. The Commission was an example of the Commission form of government in Delaware that preceded the establishment of the cabinet form of government established in 1970. In June, 1970, the General Assembly replaced the Commission by creating three entities, the Department of Labor 29 Del. C. § 8501, the Division of Unemployment Insurance 29 Del. C. § 8508, and after limiting the Commission's authority and renaming it the Unemployment Insurance Appeal Board, the Board. 29 Del. C. § 8509.
An examination of the above cited statutory sections, especially §§ 8508 and 8509, reveals that the General Assembly transferred to the Division of Unemployment Insurance all responsibility for unemployment matters except for the review function given the Board. A. corollary of this statutory transfer was that the Rules and Regulations previously adopted by the Commission beginning in 1953 became the Rules and Regulations of the Division. This transformation is confirmed in three ways. First, the cover page of the Regulations is captioned the "Delaware Department of Labor, Division of Unemployment Insurance Numbered Regulations." Similarly, many of the Division's Numbered Regulations refer to the Commission rather than the Department, Division or Board. Finally, a review of the Numbered Regulations reveals that the first twenty-seven regulations were adopted by the former Commission with Regulations 27 being adopted on June 17, 1970. Regulation 28, referring to the Department, was apparently the first Regulation enacted by this Department and was signed by James Rosbrow as Secretary of Labor rather than as Chairman-Executive Director of the Commission. (copies attached).
As the Court noted in its January 13, 2000 decision, the Board adopted Rules and Regulations prescribing procedures before the Board in November, 1979. These are signed by the Board members and properly referred to as the Board's Regulations. It is these Regulations as they have been interpreted by the courts that the Board followed in the proceedings involved in this appeal.
The Court in its January 13, 2000 decision has referenced Regulation 19, Section 4 referring to it as a "Board" Rule and asked whether this appeal is affected by the Rule. As noted above, Regulation 19, Section 4 is not a "Board Rule" but rather is a Rule adopted by the Commission prior to 1970. Admittedly. Rule 19 has never been rescinded, and therefore, to the extent that it is a procedural rule that refers to the Commission's review function, the Board will not dispute the Rule's continuing applicability to the Board's review function. In fact, without referencing Regulation 19, Section 4, the Board's present practice conforms to this Regulation when reviewing an Appeals Referee's decision prior to the expiration of the 10 day appeal period. Rarely, but it does happen, the Board will schedule on its own motion within the 10 day appeal period, a hearing without waiting for an appeal notice from either party.
Regulation 19, Section 4 does not affect this case, however, because the issue before the Board in the Frunzi case was what, if anything, to do with the late appeal. The Board's consideration in Frunzi was not "[w]ithin 10 days following a decision by an Appeal Tribunal" as required by Regulation 19, Section 4. The Board had the Court's holding in Funk v. Unemployment Insurance Appeal Board, Del. Supr., 591 A.2d 222, 225 (1991), and in conformity with that holding, decided on its own motion, to consider this case where no timely appeal had been filed by the parties.
The Board's counsel finds no conflict between the Division's and/or the Board's Regulations and the Funk case. If the Funk Court had been aware of Regulation 19, Section 4, the Court, after noting that the Appeal was not within 10 days of the Appeal Referee's decision, would have found the Regulation inapplicable to the facts of the Funk case. The Frunzi and the Funk cases factually concern a late appeal, whereas, Regulation 19 addresses the Board's authority to hear an appeal on its own motion prior to the expiration of the 10 day appeal period from a Referee's decision.
Respectfully submitted
James J. Hanley (I.D. No. 1020) Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400
DELAWARE DEPARTMENT OF LABOR DIVISION OF UNEMPLOYMENT INSURANCE NUMBERED REGULATIONS TABLE OF CONTENTS
RegulationNo. 1 (Rescinded)
No. 2 Definition of Terms
No. 3 Reports and Payments of Contributions
No. 4 Identification of Workers Covered by Law
No. 5 Interest (Amended by § 19 Del. C. § 3357, Title 19, Delaware Code)
No. 6 Records
No. 7 Reports
No. 8 Posting of Placards
No. 9 Claims and Registrations
No. 10 Required Separation Information
No. 11 Notice to Worker Required in all Separations
No. 12 Claims, etc.-, in Areas Serviced by Itinerant Offices
No. 13 Forms Prescribed for Recording Claims for Benefits
No. 14 Week of Total or Part-Total Unemployment
No. 15 Procedure for Payment of Benefits for Partial Unemployment
No. 16 Disqualification of appeal Tribunal
No. 17 Appeals Involving Section 5(d) (Labor Dispute)
No. 18 Appeals to Appeal Tribunal of All Other Matters
No. 19 Appeals to the Commission
No. 20 General Regulations on Appeals
No. 21 Regulation for Payments to Interstate Claimants
No. 22 Administrative Hearings (Contribution rates)
No. 23 Obligations of Contractors
No. 24 (Rescinded)
No. 25 Transfers of Experience (Amended 12-29-88)
No. 26 Credit for Re-Employment (Rescinded)
No. 27 Temporary Mass. Lay-Off
No. 28 "Week" Defined
No. 29 Increased Taxable Wage Base (Rescinded).
No. 30 Waiver of Benefit Overpayments
No. 31 Procedures When Unemployment Is Due To A Layoff Attributable To Lack of Work
No. 32 Election of Exemption of Corporate Officers From Delaware Unemployment Insurance Coverage
No. 33 Offset of Unemployment Compensation Benefits By Pension Benefits
No. 34 (Amended) Proration of Deductible Lump Sum Payments for Determination of Weekly Benefit Amount Payable
No. 35 (Amended) Disclosure of Information
No. 36 Reduction in Weekly Benefit Amount due to Deductible Income Receipt/Eligibility
No. 37 Employer Credit for Reemployment
No. 38 Joint Accounts of Employers
No. 39 (Amended) New Employer rate of Assessment
No. 40 Involuntary Leaving of Work due to Illness
No. 41 Eligibility for Benefits
No. 42 Disqualification for Benefits
No. 43 Officers of Closely Held Corporations
No. 44 Reduction of Employer's Rate Below the New Employer Rate
No. 45 Interest on Past-Due Assessments and Reimbursement Payments in Lieu of Assessments
No. 46 Employment Training Tax
No. 47 (Amended) Registration for Work
No. 48 Seasonal Employment (SIC Codes)
No. 49 Collection of Benefit Overpayments (5-year statute of limitations)Regulation No. 27 REGISTRATION AND CLAIMS OF CERTAIN WORKERS WHO BECOME TOTALLY UNEMPLOYED BECAUSE OF A MASS LAYOFF DUE TO A TEMPORARY CESSATION OF WORK The Employment Security Commission is authorized to defer registrations for work and to modify the requirement of in-person reporting to claim benefits for a week of unemployment for those individuals unemployed because of a temporary mass layoff as provided in this regulation.
1. A mass temporary layoff is defined as a temporary layoff by an employer because of lack of work of 100 or more of his workers at or about the same time for a period not exceeding 45 consecutive calendar days following the last day of work or 63 consecutive calendar days following the last day of work for 100 or more workers temporarily laid off for a model change or retooling.
2. As soon as possible but not later than seven (7) days prior to the last day of work of 100 or more workers, the employer shall notify the Commission of the last day of work, the reason for the layoff, the scheduled date of their return to work and when practical, the names and Social Security numbers of the workers included in the layoff. If the Commission determines that the layoff meets the requirements of a mass temporary layoff as defined in this regulation, the workers shall file claims for benefits as hereinafter provided.
3. The employer shall post instructions furnished by the Commission in conspicuous areas readily accessible to the workers concerning the proper procedure for filing claims during the layoff. period.
The employer shall prepare and give each worker unemployed because of the mass temporary layoff on his last day of work, Form UC-101-T, "Notice of Temporary Total Unemployment" and a "Claimant's Address Card" to be furnished by the Commission. However, neither of these forms shall be issued for any individual off from work because' of illness, disability, or scheduled vacation with pay on the day the temporary layoff begins. These individuals shall be issued the required forms by the employer upon the termination of the period of illness, disability, or scheduled paid vacation.
4. A claimant's week of unemployment for the purpose of this regulation shall be the seven-day consecutive calendar day period used by the employer as his payroll week.
5. Registration for work by an individual unemployed because of a mass temporary layoff shall be deferred.
6. An original or additional claim will be effective on the first day of the employer's payroll week in which the last day of work occurred if the employer issued Form UC-101-T, "Notice of Temporary Total Unemployment" on the last day of work and the form is filed by the claimant within seven days thereafter. If the employer does not issue the form on the last day of work but the claimant files within seven (7) days thereafter, his original or additional claim will be effective on the first day of employer's payroll week in which his last day of work occurred. Where a claimant is issued the form on his last day of work but fails to file within seven (7) days thereafter, his original or additional claim will be effective on the first day of the employer's payroll week in which he actually files the form. As used herein the word "file" or "filed" shall mean the date on which Form UC-101-T, "Notice of temporary Total Unemployment" and address card is delivered in person to the local office.
7. A booklet of continued mail claim forms will be given to all claimants when the initial claim is filed, or as soon thereafter as is possible. The continued mail claim forms shall be filed by the claimant not later than eight (8) days after the end of the week of unemployment for which benefits are claimed. All benefit checks for claims filed under this regulation during the mass layoff period shall be mailed from the local office.
8. An individual may not claim benefits under this regulation for more weeks than covered by the provisions of paragraph 1, or the expected date of recall, whichever comes first. If he wishes to claim benefits for any period subsequent to the calendar day limitations of this regulation during the same period of unemployment, he must within such week report in person at the local office nearest his home address during its regular scheduled hours, complete a work registration, and pursue his claim in accordance with the provisions of Regulation 9.
9. Any individual while claiming benefits under this regulation shall report in person to the local office to file his initial claim for benefits. Thereafter he shall report in person at such intervals not exceeding four (4) weeks as directed by the Commission. However, any individual who is requested by the Commission to appear in person at times other than those specified above, who fails to do so, without good cause, within ten (10) days from the date of such written notice, shall not be eligible for benefits for the week in which the matter requiring his presence arose, and until he actually appears in person in response to the notice.
10. Any worker who is entitled to receive Form UC-101-T, "Notice of Temporary Total Unemployment" as provided in paragraph 3, but who is not issued such form, may file a claim, in person at a local office within 28 days from the date the form should have been issued to him. Such original or additional claim shall be effective as of the first day of the payroll week in which the claim would have been effective had the employer issued the notice as provided in response to the notice.
CERTIFICATION
I, James H. Rosbrow, Chairman-Executive Director of the Employment Security Commission, do hereby certify that the above and foregoing is a true and accurate copy of Regulation 27 of the Employment Security Commission and has been adopted in formal meeting of the Commission on June 16, 1970.
June 17, 1970 Date James H. Rosbrow
REGULATION NO. 28
1. For the purposes of the claiming and payment of unemployment insurance benefits "week" means:
(a) Calendar week (beginning 12:01 a.m. Sunday morning); or
(b) Any seven (7) consecutive day period with respect to which no wages are payable to an individual and during which he performs no services, which occurs within two (2) calendar weeks in each of which he earns wages equal to or in excess of his weekly benefit amount plus his partial earning allowance. Claims filed under this provision may be filed within twenty-eight (28) days following the close of the second of the calendar weeks in question; or
(c) The Department may authorize the employer's payroll week for the payment of partial claims and temporary mass layoff claims.
2. Calendar week shall be used for the filing of claims and the payment of benefits under 1(a) above for all claims filed on or after July 1, 1972, except for those claims in current compensable status which will continue on a flexible week basis for the duration of their current spell of unemployment.
3. Except in cases where claims are filed under 1(b) or (c) above, the claim series will begin with the first day of the calendar week in which an unemployed individual reports and registers and files his initial or reopened claim at a local employment office of the Department.
4. Whenever the benefit week overlaps two benefit years, such week shall, for the purpose of benefit payment with respect to such week, be deemed to be paid in the preceding benefit year; provided, that when the last day of the preceding benefit year falls within a benefit week with respect to which individual has net the eligibility requirements of the Act, the ending day of the benefit year may be extended for a period not to exceed six (6) days provided, however, that such inclusion of the week within the preceding benefit year shall not change the claim week pattern as established during the current period of unemployment in the first of such two benefit years.
5. (a) The effective dare of claim for succeeding transitional claims shall be the Sunday date immediately following the benefit year ending date on the preceding benefit year; provided, the benefit week was extended under 4 above to include the Saturday date immediately prior to such Sunday date. However, if the benefit year was not extended, or if extended did not include the Saturday date prior to such Sunday date, the effective date of the succeeding benefit year will be the first day immediately following the date of the last benefit week in the prior benefit year.
(b) If the claimant is not eligible monetarily for a transitional claim, and if the last day of his benefit year falls within a benefit week with respect to which he has met the eligibility requirements of the Act, the ending date of his benefit year may be extended for a period not to exceed six (6) days for purpose of paying the last benefit week.
6. Wherein parts of this Regulation are in conflict with prior Regulations, this Regulation will hold.
Approved:
James M. Rosbrow, Secretary