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PROPOSED RULEMAKING

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW

[34 PA. CODE CH. 101]

General Requirements

[26 Pa.B. 1141]

   The Unemployment Compensation Board of Review (Board), under the authority contained in sections 203 and 505 of the Unemployment Compensation Law (law) (43 P. S. §§ 763(d) and 825) proposes these amendments to replace Chapter 101, Subchapter E (relating to telephone hearings). The proposed amendments provide guidelines and standards for scheduling and conducting appeal hearings in whole, or in part, by telephone.

Purpose of Proposed Rulemaking

   The former regulations governing hearings conducted by telephone sunsetted on April 8, 1994, but telephone hearings continued to be conducted when all parties agreed to be bound by the expired regulations. In addition to the former regulations having sunsetted, minor problems of interpretation were noted. These problems of interpretation stemmed primarily from minor ambiguities in the regulations which occasionally caused difficulty in application for the parties or the tribunal. The proposed telephone regulations are designed to address these problems by providing clarification, conforming to the Pennsylvania Code & Bulletin Style Manual, 3rd Edition, and, primarily, improve organization in order to ensure that telephone hearings are conducted in a uniform manner. The ultimate purpose is to provide fundamental fairness to all parties involved in the appeal process.

Explanation of Proposed Regulations

   Subchapter E governs telephone hearings. This subchapter was rescinded on April 8, 1994, under the sunset date provided in former § 101.126(b). The following reinstates the sunsetted regulations as revised. Most of the revisions involve reorganization or rewording for clarity. The proposed amendments have also been given new section numbers for organizational purposes.

   §§ 101.121--101.126 (Reserved). This is proposed to be deleted in order to show the history of the telephone regulations.

   Proposed § 101.127(a) (relating to purpose and scope) sets forth the purpose of the telephone hearing regulations. This is similar to sunsetted § 101.121.

   Proposed § 101.127(b) sets forth the scope of the telephone regulations. This is similar to sunsetted § 101.125(e) and has been placed here for organizational purposes. It has been reworded to promote clarity without changing the meaning.

   Proposed § 101.128(a) (relating to scheduling of telephone testimony) provides that a party or witness located at least 50 miles from the hearing site may testify by telephone. This will eliminate problems involving fractional miles and clarify the intent of the regulation that 50 miles distance, in itself, is sufficient to allow telephone testimony. This is similar to sunsetted § 101.122(a) and has been reworded for clarity and style only.

   Proposed § 101.128(b) provides the reasons for which telephone testimony can be scheduled upon request of a party or witness. This is similar to sunsetted § 101.122(b) and has been reworded for clarity and style only.

   Proposed § 101.128(c) provides that a party or witness identified prior to the taking of testimony may testify by telephone. This change from sunsetted § 101.122(c) was made so that all sections relating to the scheduling of witnesses and taking of testimony are in conformity.

   Proposed § 101.128(d) requires that the tribunal promptly rule on a request that testimony be taken by telephone and that the ruling will be documented on the record. This proposed section is the same as sunsetted § 101.122(d).

   Proposed § 101.128(e) provides that a party or witness scheduled to testify by telephone will be permitted to testify in person. This proposed section is the same as sunsetted § 101.122(e).

   Proposed § 101.129(a) (relating to procedures subsequent to scheduling) provides guidance to the tribunal if a party moves to withdraw consent to the receipt of telephone testimony. This proposed section is essentially the same as sunsetted § 101.123(a) with minor word changes for clarity and style.

   Proposed § 101.129(b) provides how and when an objection to the receipt of telephone testimony can be made. This proposed section is the same as sunsetted § 101.123(b).

   Proposed § 101.129(c) provides that the tribunal will promptly rule on objections to testimony to be received by telephone and that the ruling will be documented on the record. This proposed section is the same as sunsetted § 101.123(c).

   Proposed § 101.130(a) (relating to notice of testimony by telephone and use of documents) provides that notices of telephone hearings will be mailed to parties and their counsel or authorized agents, if known. The hearing notice will indicate the time of hearing in all relevant time zones and, if known, the names of counsel, authorized agents, parties, and witnesses that are scheduled to provide telephone testimony or representation. The purpose is to assure that all known counsel or authorized agents receive notice and that any confusion concerning the time a party or witness will be called to testify by telephone will be eliminated. Also, listing the names of counsel, and the like, if known, gives parties notice of participants, but does not preclude witnesses or representation as provided for in proposed § 101.131(f). This proposed section is a hybrid of sunsetted § 101.124(a) and (b). Any changes are for purposes of organization and clarity.

   Proposed § 101.130(b) requires that a copy of the telephone hearing regulations be sent with the notice of telephone hearing and that, if a copy is not sent, any testimony and evidence taken at the hearing may be excluded from consideration and a new hearing scheduled in compliance with the regulations. By providing that copies of the telephone regulations are sent to all parties before the hearing, or that testimony taken may be excluded and a new hearing scheduled, it will be ensured that all parties are aware of their rights during a telephone hearing. In the past, copies of the regulations have not always been provided and, as a result, parties have sometimes given uninformed consent to waiving their rights. This proposed section is similar to sunsetted § 101.124(b).

   Proposed § 101.130(c) provides that a party intending to testify by telephone or offer testimony of witnesses by telephone shall, before the start of the hearing, provide the tribunal with the name, location and telephone number of those persons who will testify by telephone. This proposed section was part of sunsetted § 101.124(c).

   Proposed § 101.130(d) requires that the tribunal send to all parties in advance of the hearing all documents relied upon by the job center, whether the party is appearing in person or testifying by telephone. Fairness dictates that all parties have comparable time and opportunity to review the documents in preparation for the hearing. This is similar to the sunsetted § 101.124(f).

   Proposed § 101.130(e) provides that if any testimony or evidence is to be given or taken from or with the aid of a document or writing, the document or writing must be delivered to the tribunal for distribution before the hearing or before testimony is taken. Under sunsetted § 101.124(d), this section was interpreted to allow the party appearing in person the opportunity to use documents that had not been distributed to the party or witnesses testifying by telephone. This practice violated the right of the party testifying by telephone to a fair hearing by denying that party the opportunity to examine the documents to determine authenticity and accuracy. The proposed section will assure fundamental fairness to all parties by ensuring that all documents are distributed to all parties before the testimony begins.

   Proposed § 101.131(a) requires that all parties be advised of the right to object to testimony by telephone.

   Proposed § 101.131(b) (relating to conduct of a telephone hearing) provides that any party may object to telephone testimony at the hearing and, if so, shall state the reasons why; and provides direction to the tribunal when such an objection is made. This proposed section is similar to sunsetted § 101.123(d) and has been revised for clarification purposes only.

   Proposed § 101.131(c) requires that, at the beginning of the hearing, the tribunal will state on the record the time and telephone number at which the tribunal initiates contact with any party, witness or counsel who is testifying by telephone. This new section is designed to create a clear record of the attempt by the tribunal to complete the telephone contact and thus alleviate the problems resulting from contacting parties in different time zones, when hearings begin late, or incorrect numbers have been given to or dialed by the tribunal. The expected effect will be a decrease in the number of remand hearings necessary due to parties alleging that they were available for the hearing, but did not receive a call from the tribunal.

   Proposed § 101.131(d) requires that the tribunal tape record and preserve the telephone hearing record and so advise all parties and witnesses. Anyone has the right to refuse to have their testimony recorded. If anyone refuses to have their testimony tape recorded, the tribunal will provide for stenographic recording of testimony. This is consistent with the right of anyone to refuse to have their testimony tape recorded. The proposed requirement that the tribunal be advised of the objection to tape recording in advance of the hearing is to allow the tribunal sufficient time to make alternate arrangements for stenographic recording of testimony. This is similar to sunsetted § 101.125(a).

   Proposed § 101.131(e) requires that the tribunal allow parties a reasonable opportunity to question any party or witness testifying by telephone for the purpose of verifying the identity of party or witness. This proposed section is similar to sunsetted § 101.125(b).

   Proposed § 101.131(f) provides that any party or witness not identified in advance of or at the beginning of the telephone hearing, prior to the taking of any testimony, may not testify by telephone. Testimony taken or given in violation of this provision will be excluded from consideration by the tribunal. This section informs all parties of the consequences of prohibited testimony and gives the reviewing bodies clear direction concerning how to treat prohibited testimony. This is similar to sunsetted § 101.124(c).

   Proposed § 101.131(g) provides that no person may prompt or direct the testimony of a witness testifying by telephone, and that testimony taken in violation of this provision will be excluded. This proposed section is similar to sunsetted § 101.125(c) and changes are for purposes of clarity only.

   Proposed § 101.131(h) provides that a document or writing not provided as required by § 101.130(e) will not be admitted and testimony given or taken from it will not be considered unless consent to consider the testimony and document has been requested from and given by all parties. Testimony in violation of this subsection will be excluded. This change is proposed for the same reasons cited in proposed § 101.131(f). This proposed section is similar to sunsetted § 101.125(c).

   Proposed § 101.131(i) provides for the administering of a special oath for witnesses and parties testifying by telephone. The special oath is to emphasize the restrictions on anyone testifying by telephone and to help ensure that they will comply with the restrictions concerning the use of documents and the prohibition against improper prompting and directing during the hearing by any other person.

   Proposed § 101.132 (relating to presentation by telephone) provides that a party's counsel or authorized agent may provide representation by telephone at any time, but may provide testimony only if the criteria of § 101.128(a) and (b) are met. The purpose is to enhance the right of all parties to obtain counsel or representation of their choice. Because representatives do not usually give testimony, there are no due process issues involved in this provision. Telephone representation alone will not trigger the telephone regulations because proposed § 101.127 speaks only to telephone testimony by parties and witnesses. If a representative will give testimony, the requirements set forth in § 101.128(a) and (b) must be met, and the telephone regulations will be triggered.

Who is affected by the Proposed Amendments

   Unemployment compensation claimants, employers and their respective representatives (attorneys, paralegals, union representatives, tax consultants, and the like), and witnesses who participate in appeal hearings where testimony or representation will occur by telephone will be affected. Telephone hearings constitute approximately 6.5% of all hearings conducted.

   The proposed amendments will ensure that parties involved in a hearing where testimony is received by telephone have a fair hearing. Most proposed changes from the former telephone hearing regulations involve relocation of sections for clarity, or rewording for clarity or style.

Cost and paperwork requirement

   There will be negligible cost to the agency to revise the existing regulations and a small number of forms. There will be no costs to local government, the private sector or the general public. Parties who appear by telephone can potentially save money in travel costs and time because their presence at a central location will not always be required.

Sunset date

   The effectiveness of the additions to Chapter 101 will be reviewed periodically by the Board. Thus, no sunset date is necessary.

Contact Persons

   The contact persons are Clifford F. Blaze, Esq., (717) 783-1232 or Linda S. Lloyd, Esq., (717) 787-8510, Room 1623 Labor and Industry Building, Seventh and Forster Streets, Harrisburg, PA 17121.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of these proposed amendments on March 1, 1996, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Committees. In addition to submitting the proposed amendments, the Board provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1982-2, ''Improving Government Regulations.'' A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Board within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review by the Board, the General Assembly and the Governor of objections raised, prior to final publication of the proposed amendments.

WILLIAM A. HAWKINS,   
Chairperson

   Fiscal Note:  12-43. (1) Labor & Industry Administration Fund; (2) Implementing year is 1994-95 $Negligible; (3) 1st succeeding year is 1995-96 $Negligible; 2nd succeeding year is 1996-97 $Negligible; 3rd succeeding year is 1997-98 $Negligible; 4th succeeding year is 1998-99 $Negligible; 5th succeeding year is 1999-00 $Negligible; (4) FY ____ $ N/A; FY ____ $ NA; FY ____ $ N/A; (8) recommends adoption.

Annex A

TITLE 34.  LABOR AND INDUSTRY

PART VI.  UNEMPLOYMENT COMPENSATION

CHAPTER 101.  GENERAL REQUIREMENTS

Subchapter E.  TELEPHONE HEARINGS

   (Editor's Note:  As part of this proposal, the Board is proposing to delete the existing text of §§ 101.121--101.126, which appears at 34 Pa. Code pages 101-41--101-45, serial pages (207529)--(207533).)

Sec.

101.121--101.126.   (Reserved).
101.127.   Purpose and scope.
101.128.   Scheduling of telephone testimony.
101.129.   Procedures subsequent to scheduling.
101.130.   Notice of testimony by telephone and use of documents.
101.131.   Conduct of a telephone hearing.
101.132.   Representation by telephone.

   (Editor's Note:  The following sections are new. They have been printed in regular type to enhance readability.)

§ 101.127.  Purpose and scope.

   (a)  In-person testimony is normally preferable to testimony by telephone; however, there can be reasons to justify receiving testimony by telephone. This subchapter is promulgated to provide the conditions under which testimony by telephone will be scheduled and received, to safeguard the due process rights of the parties, and to ensure that testimony by telephone is received under uniformly applied rules. Testimony by telephone may be received only if specifically authorized by this subchapter.

   (b)  When the general rules of this chapter conflict with the provisions of this subchapter, the provisions of this subchapter control.

§ 101.128.  Scheduling of telephone testimony.

   (a)  The tribunal may schedule, on its own motion, testimony by telephone of a party or witness when it appears from the record that the party or witness is located at least 50 miles from the location at which the tribunal will conduct the hearing.

   (b)  The tribunal may schedule testimony by telephone of a party or witness, at the request of one or more parties, when one of the following applies:

   (1)  The parties consent to the receipt of testimony by telephone.

   (2)  The party or witness is reasonably unable to testify in person because of compelling reasons, such as employment, transportation or medical problems.

   (c)  Only a party or witness scheduled to testify by telephone, or identified prior to the taking of testimony in accordance with § 101.131(f) (relating to conduct of a telephone hearing), may testify, and the testimony of each other party or witness shall be received in person.

   (d)  The tribunal will promptly rule on a request that testimony be taken by telephone after a reasonable attempt to obtain the positions of other parties. The basis for the request, the position of other parties, if known, and the ruling will be documented on the record.

   (e)  A party or witness scheduled to testify by telephone will be permitted to testify in person.

§ 101.129.  Procedures subsequent to scheduling.

   (a)  If a party moves to withdraw consent to the receipt of testimony by telephone prior to the taking of testimony, the tribunal will allow the withdrawal if it is found that the consent was not freely and knowingly given.

   (b)  An objection to the receipt of testimony by telephone shall set forth the reasons in support thereof and shall be promptly communicated to the tribunal, but may not be asserted subsequent to the taking of testimony.

   (c)  The tribunal will promptly rule on objections to testimony by telephone after a reasonable attempt to obtain the position of the other party. The basis for the objection, the position of the other party, if known, and the ruling will be documented on the record.

§ 101.130.  Notice of testimony by telephone and use of documents.

   (a)  When testimony by telephone is to be taken, the tribunal will mail the notice of a hearing to the parties and, if known, to their counsel or authorized agent at least 14 days in advance of the hearing. The hearing notice will indicate:

   (1)  The time of the hearing in all relevant time zones.

   (2)  The names of counsel, authorized agent, parties and witnesses, if known, who are scheduled to appear or testify by telephone.

   (b)  When testimony by telephone is to be taken, the tribunal will send a copy of this subchapter with the notice of hearing. If a copy of this subchapter has not been provided to the parties or their counsel or authorized agent in advance of the hearing, testimony and evidence given or taken at the hearing may be excluded from consideration, and a new hearing in compliance with this chapter will be scheduled.

   (c)  A party intending to testify, to offer the testimony of witnesses or to be represented by telephone, shall, in advance of the beginning of the hearing, supply the tribunal with the name, location and telephone number of the persons who will so appear.

   (d)  When scheduling a telephone hearing, the tribunal will enclose with the notice of hearing copies of the documents upon which the initial determination was based. These copies will accompany the notices of hearing to all parties.

   (e)  When testimony or evidence will be given or taken from or with the aid of a document or writing, the document or writing shall be delivered to the tribunal and distributed by the tribunal to each other party and, if known, counsel or authorized agent before or at the beginning of the testimony. The tribunal may request that the documents or writings be delivered up to 5 days in advance of the hearing. See § 101.131(h) (relating to conduct of a telephone hearing).

§ 101.131.  Conduct of a telephone hearing.

   (a)  Before testimony is received, the tribunal will advise all parties of the right to object to telephone testimony and to request an in-person hearing in compliance with Subchapter B (relating to provisions governing hearings before the Department or referee).

   (b)  A party may pursue an objection to telephone testimony at the hearing and shall set forth reasons in support thereof. If the objection is sustained, the tribunal will reschedule the hearing at a later date, either in person or by telephone, in accordance with Subchapter B or this subchapter. If the objection is not sustained, the tribunal may proceed with the hearing.

   (c)  At the start of the hearing, the tribunal will state on the record the time and telephone numbers at which the tribunal initiates the contact with any party, witness, legal counsel or authorized agent who is to testify or appear by telephone.

   (d)  The proceedings of the hearing will be tape recorded to preserve the record. A person testifying or appearing by telephone will be advised by the tribunal that the proceedings are being tape recorded. A person has the right to refuse to have their telephone testimony tape recorded. Persons who so object shall advise the tribunal in advance of the hearing, and state the basis for their objection. The tribunal will promptly rule on the objection and will document on the record both the basis for the objection and the ruling. If the tribunal sustains the objection, the tribunal will provide for stenographic recording of the testimony.

   (e)  The tribunal will permit parties a reasonable opportunity to question other parties or witnesses testifying by telephone for the purpose of verifying the identity of the parties or witnesses. Falsification of identity may subject the parties or witnesses to prosecution and punishment.

   (f)  A party or witness not identified to the tribunal and all other parties before the beginning of the testimony will not be permitted to testify by telephone. Testimony taken or given in violation of this subsection will be excluded from consideration.

   (g)  A person may not prompt or direct the testimony of a witness testifying by telephone. Testimony taken or given in violation of this subsection shall be subject to objection and will be excluded from consideration by the tribunal.

   (h)  A document or writing not provided as required by § 101.130(e) (relating to notice of testimony by telephone and use of documents) may not be admitted nor testimony given or taken from it unless consent has been requested from and given by all parties. Testimony taken or given in violation of this subsection will be excluded from consideration.

   (i)  All parties or witnesses testifying by telephone shall take a special oath, administered by the tribunal at the start of the hearing, that they will comply with the restrictions on documents and writings, and that their testimony will not be prompted or directed during the hearing by any other person.

§ 101.132.  Representation by telephone.

   The counsel or authorized agent of a party may provide representation at a hearing by telephone, but may not provide testimony unless the representative meets the criteria in § 101.128(a) or (b) (relating to scheduling of telephone testimony).

[Pa.B. Doc. No. 96-397. Filed for public inspection March 15, 1996, 9:00 a.m.]



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