Subpoenas and evidence in interstate unemployment appeals

U.S. Department of Labor
Employment and Training Administration
Washington, D.C. 20210
Classification: UI
Correspondence symbol: TEURL
Issue date: May 30, 1990
Rescissions: None
Expiration date: June 30, 1991
Directive: UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 28-90
To: ALL STATE EMPLOYMENT SECURITY AGENCIES
From: DONALD J. KULICK, Administrator for Regional Management
Subject: Interstate Appeals and the Issuing of Subpoenas

1. Purpose. To advise States of the Department of Labor's position on the issuance of subpoenas in interstate appeals.

2. References. Sections 303(a)(1) and 303(a)(3) of the Social Security Act (SSA), Section 3304(a)(9)(A) of the Federal Unemployment Tax Act (FUTA), and the Interstate Benefit Payment Plan.

3. Background. In a case pending in Federal court (Saltz v. Tennessee Department of Employment Security et al. No. DR-89-CA-45 (W.D. Texas)), an unemployment insurance claimant is alleging, among other things, that due process was denied when the liable State in an interstate claim advised him it had no power to enforce a subpoena to an employer in another State concerning separation information the claimant believed relevant. (It should be noted the State also determined the information at issue was irrelevent to the claim for unemployment insurance.) Although one State cannot enforce a subpoena in another, it is otherwise possible to obtain necessary evidence for interstate claims. This UIPL is issued to advise States of relevent Federal law requirements and the procedures to follow when the liable State determines the information relevant to a hearing on appeal is necessary.

   The applicable sections of Federal law are:

   a. Section 303(a)(1), SSA, requires, as condition of a State receiving administrative grants, "[s]uch methods of administration . . . as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due."

   b. Section 303(a)(3), SSA, which requires "[o]pportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied."

   c. Section 3304(a)(9)(A), FUTA, which requires, as a condition of employers in a State receiving credit against the Federal unemployment tax, that "compensation shall not be denied or reduced to an individual solely because he files a claim in another State . . . or because he resides in another State . . . at the time he files a claim for unemployment compensation."

   Read together, Sections 303(a)(1) and 303(a)(3), SSA, require the State agency to conduct an informal hearing complete enough to provide information upon which the agency may act with reasonable assurance that its decision is consistent with its unemployment compensation law. The official conducting the hearing must assist the parties in the discovery of facts and, if necessary, take the initiative in the discovery of information. Further, to receive the "fair hearing" required by Section 303(a)(3), it is evident that a claimant must have means of requesting production of evidence which affects eligibility and the State must have means of compelling the production of this evidence. These requirements apply equally to interstate and intrastate claims and to both lower and higher authority appeals.

   A sobpoena may be required to obtain the information necessary to fulfill these requirements. A subpoena is a legal order requiring a person to appear at a hearing or to produce specific material. Subpoenas represent a compulsory process for obtaining evidence. A party's request for issuance of a subpoena should be granted, unless it is clear that such a request is unreasonable, frivolous, made for the purpose of harassment, not relevant to a determination of unemployment insurance eligiblity, or is not needed to secure attendance of a witness or production of material. If it is clear to the State that production of necessary evidence must be compelled, the State should not wait for a party's request for a subpoena before taking steps to obtain the information.

   In addition, Section 3304(a)(9)(A), FUTA, requires that benefits shall not be denied to a claimant solely because he resides in another State at the time of filing. If a claimant is denied benefits because the liable State has failed to obtain subpoenaed information in the belief that it has no power to obtain such information from another State, the failure could result in a denial of benefits simply because the claim was an interstate claim.

4. Application. If a claimant or employer in an interstate claim requests a subpoena be issued, the liable State hearing officer (or other appropriate official) will rule on the necessity of obtaining such information for a determination under its law. If the information is not necessary, the hearing officer should so advise the party. If it is determined the material or witness is necessary, the liable State hearing officer should explore the possibility of obtaining the needed testimony (which may be by telephone) or material voluntarily. If this approach is not successful, the hearing officer must make arrangements with the appropriate official in the State where the witness or material is located to compel, through issuance of a subpoena or other means, the witness to testify or for the evidence to be produced. Methods of obtaining the testimony or evidence will need to be tailored to the circumstances of the specific case.

   Agent States should already have authority for issuing a subpoena for a liable State under the provisions of State law or regulation implementing Section 9(a) of the proposed regulation contained in the Interstate Benefit Payment Plan. This regulation requires the agent State to "afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims when so requested by a liable state."

5. Action. State agency administrators are requested to review existing State law provisions and agency practices involving interstate appeals to ensure that Federal law requirements as set forth in this program letter are met concerning responsibilities as a liable, agent or other State. If necessary, prompt action should be taken to assure Federal requirements are met.

6. Inquiries. Please direct inquiries to the appropriate Regional Office.