Undue political pressure violates process, expert on labor law says

LEWISTON — An expert on unemployment labor law said Wednesday that any undue political pressure exerted on the unemployment appeal hearing process violates the statutory fair hearing process.

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“The whole premise of the system,” said Rick McHugh, senior staff attorney with the National Employment Law Project in New York, "is that the state follows the rules set by the Legislature and the courts about what does ‘misconduct’ mean and what does a ‘voluntary quit’ mean, and the parties expect a fair hearing.”

In a Sun Journal investigation, sources within the Maine Department of Labor revealed that Gov. Paul LePage pressured state employees in a face-to-face directive on March 21 to decide hearing unemployment benefits cases in favor of business owners instead of workers.

It’s a serious violation of federal standards to politicize the process, McHugh said, and “to expect individual hearing examiners to stand up against that kind of direct pressure is really providing an unfair advantage to the employers.”

Howard Reben, with Reben, Benjamin & March, a labor law firm in Portland, was more direct.

“It’s certainly a breach of due process for (LePage) to even say anything” to hearing examiners about their determinations, Reben said.

"The hearing officers are quasi-judicial people who have to interpret the law and to suggest that the law should be bent in a particular way is outrageous," Reben said.

“The claimant’s got a right to a fair hearing and if somebody has got his foot on the pedal and trying to cause” the outcome of the process to change, that’s “totally unfair” to the claimant, he said.

The Social Security Act, McHugh said, “says that you can’t deny a claim without a fair hearing before an impartial tribunal.” And, he said, what the U.S. Department of Labor defines as an impartial tribunal is a “civil servant who is protected from discharge or other types of sanctions” assigned to hear cases “to ensure that they decide the case based on the facts and the proper application of the law.”

If someone exerts pressure during that process, he said, that destroys the tribunal’s impartiality.

He said the scenario of political interference described by Maine’s hearing examiners is reminiscent of the Reagan administration’s move to track percentages of hearing outcomes within the Social Security Administration and any hearing officer who “awarded disability benefits more than a certain amount, more than the mean, all their cases were reviewed by the Appeals Council.”

For several months last year, LePage reportedly also instructed unemployment hearing examiners to report pro-employee rulings to their supervisors before entering formal rulings on those cases.

According to McHugh, after the Reagan administration pressured hearing officers “to conform to a more anti-work, anti-applicant perspective," the National Employment Law Project filed a lawsuit that brought attention to that “somewhat unorthodox approach” and some of the other unprecedented things that were going on during those years, and the practice stopped.

To reach a fair determination during the hearing process, the process itself has to be fair, McHugh said, especially because people can be susceptible to political pressure.

McHugh pointed out that a personally delivered directive from a governor is more direct pressure than Reagan exerted.

“Reagan wasn’t having them to the White House” to push for pro-business outcomes. “He was at least smart enough to have minions do it instead of doing it himself.”

According to Reben, the hearing process is tightly structured to ensure an independent process and that if LePage were a lawyer, "he’d probably get disbarred” for interfering.

Reben said such a violation is so serious that it may “lay the groundwork for some hearing appeals” from claimants who may not believe they received a fair hearing.

McHugh, who has written extensively on unemployment law and fair hearings over the past 30 years, said that hearing officers can certainly disagree on findings and some are seen as more pro-worker and others as pro-employer, “but that doesn’t come from outside instructions. That’s based on people’s backgrounds and good-faith differences in judgment.”

When it comes to unemployment compensation hearings, McHugh said, there is “no pro-business or anti-business angle.”

“Employers and workers should be getting a hearing that’s not influenced by outside factors and the awarding of benefits to a worker when they’re entitled to those benefits, according to the rules set by the Legislature,” he said.

“Unemployment rules are not a penalty on the employer," he said. "They’re basically something that we use to provide a benefit to people when they are involuntarily unemployed.”

In fact, McHugh said, unemployment benefits could be seen as a pro-business measure. When unemployed workers file for benefits, he said, “what do they do with that money? They spend it at businesses.”

The nation’s unemployment benefits program was constructed, McHugh said, to guard against “social unrest and just lack of humane standards that you’d have if you just kicked people out on the street.”

He added, “That’s apparently the philosophy that people like Gov. LePage want to go back to. Unfortunately for him, the law hasn’t been changed to allow him to dictate that no one will get unemployment benefits."

And, McHugh said, any move to interfere with the fair-hearing process “is a very serious thing in terms of having the federal government concerned about” whether the fair hearing provision in federal law is being followed in Maine.

As for the state employees who spoke up with their concerns, all of whom asked the Sun Journal for confidentiality to protect their jobs, McHugh had high praise.

The fact that some among the people attending the meeting stepped forward to express their discomfort "shows that those people have more integrity than anybody who worked at the big Wall Street banks" who stood by and watched "the financial mess that has driven our economy into the gutter."

"Tens of thousands of CPAs and lawyers and other financial experts should have said "this is wrong. I'm not going to participate in this,' and they didn't." So that some hearing examiners in Maine did stand up, he said, "is laudable."

jmeyer@sunjournal.com

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Comments

Frank Heller's picture

the National Employment Law Project is a partisan advocacy group

The National Employment Law Project in New York is a vocal social and economic advocacy project and hardly an impartial 'expert' to be quoted:

"A national advocacy organization for employment rights of lower-wage workers. News, policy papers, and "know your rights" publications, mostly geared toward"

I would imagine they exert undue pressure on both hearings examiners and lawyers to fully implement their agenda of social and economic justice:

"The National Employment Law Project (NELP) responds by working to restore the promise of economic opportunity in the 21st century economy. In partnership with national, state and local allies, we promote policies and programs that create good jobs, strengthen upward mobility, enforce hard-won worker rights, and help unemployed workers regain their economic footing through improved benefits and services.' http://www.nelp.org/site/about_us/background/

So much for fair and even reporting by the LSJ.

Steve  Dosh's picture

Undue political pressure violates process, expert on labor law

ed., 19:15 hst ? Thursday •
She's right ? 
http://www.nps.gov/lowe/index.htm Lowell Historical Site
^^ Do visit the not - too - distant ^^ past history of mill workers in NE , back when children worked in mills on Sundays ( and nights ) for ' the man ,' women could not vote , and blacks , well , you know
Let's not mention pollution just yet . ... the Atlantic salmon are back in L/A
•  /s Dr. Dosh , HI

Mark Elliott's picture

LOL....you libs should stay

LOL....you libs should stay out of the sauce and read again. Remember your grammar rules from elementary school. The article states:

"LePage, the anonymous sources said, told the group of DOL employees that they were “doing their jobs poorly.”

While there is no way of knowing if LePage actually said this, there are plenty of reasons to believe it’s the truth"

Here is what anyone with common sense will tell you it means:

While there is no way of knowing if LePage actually said this, (actually said DOL employees were “doing their jobs poorly.”)

there are plenty of reasons to believe it’s the truth" (that DOL employees are “doing their jobs poorly.”)

and it states 6 reasons why it is believed DOL employees are “doing their jobs poorly.”.......

Unbelievable ..... debating with a liberal is like debating with a 6 year old.....

So not that you have posted

So not that you have posted this "report" several times, what is your point? Are we to believe a blatantly partisan web publication that is clearly acting as a mouthpiece for the Maine GOP over a nonpartisan publication that actually maintains objectivity? (well, it may be to the left of you, but that means nothing to one who is maintains a center moderate stance). (Which is to say, if this story had come from The Daily Kos or Upworthy instead of SJ, I would be as skeptical as I am of your Mainewire story. So why poste it 25 times? Did you write it or something?

Mark Elliott's picture

Are we to believe a blatantly

Are we to believe a blatantly partisan web publication that is clearly acting as a mouthpiece for the Maine DEMs....like the SJ?

JERRY ARIPEZ's picture

His hurried attempt backfired:

He was wanting to stifle the attack on his hero, only that fact was he really never read it thru, but just what he saw at a glance thinking it was defending the bully.

Mark Elliott's picture

Sorry Jerry...it is YOU poor

Sorry Jerry...it is YOU poor grammar that allows you to believe the article shoots him in the foot.

LOL....you should stay out of the sauce and read again. Remember your grammar rules from elementary school. The article states:

"LePage, the anonymous sources said, told the group of DOL employees that they were “doing their jobs poorly.”

While there is no way of knowing if LePage actually said this, there are plenty of reasons to believe it’s the truth"

Here is what anyone with common sense will tell you it means:

While there is no way of knowing if LePage actually said this, (actually said DOL employees were “doing their jobs poorly.”)

there are plenty of reasons to believe it’s the truth" (that DOL employees are “doing their jobs poorly.”)

and it states 6 reasons why it is believed DOL employees are “doing their jobs poorly.”.......

Unbelievable ..... debating with a liberal is like debating with a 6 year old.....

Silly man...

For not realizing that by posting it a dozen times it's only drawing more critique and criticism on him and the article he posts.

Mark Elliott's picture

LOL....you libs should stay

LOL....you libs should stay out of the sauce and read again. Remember your grammar rules from elementary school. The article states:

"LePage, the anonymous sources said, told the group of DOL employees that they were “doing their jobs poorly.”

While there is no way of knowing if LePage actually said this, there are plenty of reasons to believe it’s the truth"

Here is what anyone with common sense will tell you it means:

While there is no way of knowing if LePage actually said this, (actually said DOL employees were “doing their jobs poorly.”)

there are plenty of reasons to believe it’s the truth" (that DOL employees are “doing their jobs poorly.”)

and it states 6 reasons why it is believed DOL employees are “doing their jobs poorly.”.......

Unbelievable ..... debating with a liberal is like debating with a 6 year old.....

FRANK EARLEY's picture

Nice try Mark.........

As I noted before, LePage is about to embark on a whirlwind tour. A tour he thinks can defend his outrageous behavior. His shooting from the hip approach to communicating has gotten him into trouble before, only this time it will most likely all but destroy any trace of credibility he had left. A person with little or no credibility, is in no position to call anyone else a lyre.
You can not take back this type of accusation, once the idea is out there, the damage is already done. The problem LePage faces now is, there is no evidence of anyone being disgruntled. There is no reason, based on his history of conflict, for anyone to believe this is anything other than another stupid act on the Governors part. Paul LePage is his own worst enemy, now he has placed himself in a situation that I really don't think he could ever fully recover from.
There's an old saying, I feel the Governor may want to pay attention to. Although I think it's to late, maybe he'll learn something from it, I think LePage has just been given a lesson that most bullies learn the hard way. "What go's around, comes around". Ain't it the truth...........................

JERRY ARIPEZ's picture

Cudos

TO SJ, for looking at this egregious action on every level of the spectrum. WTH is with this repub Govs' in these states that are stripping rights of the cities, the people and selling assets of the states to corporate buyers.

Whatever happened to they work for us, the taxpayers and they answer to the people on their actions.

I hope this POS gets what's coming and due for his bullish way of thinking he can run this like he did at Mardens.

Stop electing these republicans and the country, nationwide would be better off, from them attacking voters on who can and how long they have to stand in lines to vote. About them being in every woman's business, from being or not being pregnant. Them trying to jamb their religious beliefs onto others when they are not the only ones in this country that have other beliefs.

They claim they want smaller government and are making more crazier laws nationwide that creates more laws for the government to interfere with your lives, what is up with that? Hypocrisy at its highest peak.

JERRY ARIPEZ's picture

Foxes guarding the hen house

According to multiple sources in the Governor’s Office, the anonymous allegations contained in the report are false.

Operative words;;;;;;;multiple sources in the Governor’s Office

Mark Elliott's picture

Operative word: "anonymous"

Operative word: "anonymous"

FRANK EARLEY's picture

How to interpret his comments....

It was noted that Paul LePage was quoted as saying "when I fired someone, it was always for a good reason". I can only imagine the damage this one line has done to his integrity. I just hope LePage is held responsible, not the people of Maine. We are already paying for too much. We don't need to be paying for his attempt at being a tough guy as well............

CLAIRE GAMACHE's picture

Independent

This sort of calls into question the results of all those other so called "independent boards" like the one that evaluated the governor's plan for the liquor money and the one that projects budget analyses and school funding and so on. In fact it pretty much redefines the word independent in the state of Maine. We could just change it to stooge or lapdog.

Gail Labelle's picture

Due process in question

Nothing new all forms and all levels of government, whether local, state, or federal have been doing this for years. LePage well he is just more loud about his activities and it seems not a favorite amoung some of the people who work for him or who voted for him.

I feel bad for the employees who work hard every day to help state government function. How long does this guy have left in office???

Allisa Milliard's picture

there will be an

there will be an investigation, and it won't turn up anything. that's the way it has been the past 2 years. state workers cry foul, an investigation ensues, and they find nothing amiss. just a bunch of people with a different political ideology then the governor using the same stunts they relied on for the past 30 years.

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