CHAPTER
Emp 200 COMPLAINTS AND HEARING
PROCEDURES
PART
Emp 201 APPEAL FROM DETERMINATION OF
EMPLOYER LIABILITY
Emp 201.01 Form
and Content. The written appeal of
an employing unit or employer who claims to be aggrieved by a determination
made under RSA 282-A:94, shall set forth in detail the specific facts which
constitute the basis of its case and/or argument as to the law.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.02 Notice
of Hearing. A hearing shall be scheduled
promptly, and notice thereof shall state the date, time and place of hearing
and be sent by first class mail to the affected persons at their last address
according to the department records. A
copy of the appeal shall be sent to all persons affected except the appellant.
Source. #2234, eff 1-1-83; amd by #2490, eff 10-1-83;
ss by #2930, eff 12-21-84, EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff 5-5-97,
EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.03 Evidence,
Testimony and Records. Testimony
shall be taken under oath or affirmation and a verbatim record of the
proceedings shall be made. Such records,
reports, summaries and compilations of the department as are material shall
constitute part of the evidence in the case upon introduction by department
personnel.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.04 Examination
of Department Records. Such records,
reports, summaries and compilations of the department as may be material shall
be made available for examination by the parties at
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.05 Examination
of Parties and Witnesses. All
parties shall have the right to testify, to present witnesses and to examine
and cross-examine other parties and witnesses and department personnel with
regard to the department records, reports, and summaries and compilations.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.06 Scope
of Hearing. In the interest of
prompt administration of justice and without prejudice to the substantive
rights of any party, any issue material to the appeal may be heard and decided
though not specifically indicated as a ground for appeal or in the notice of
hearing. Cases shall be consolidated by
the commissioner for hearing and decision which arise from common transactions
or facts or are controlled by the same principles of law and the appeal will be
simplified or shortened and where there will be no prejudice to the substantive
rights of any party.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.07 Adjournment,
Postponement and Continuance.
Adjournment, postponement and continuance shall be directed, granted or ordered
for good cause shown, which shall include prejudice due to the inability of
counsel or a critical witness to attend unless such inability is due to action
or inaction on the part of the party.
Notice of adjournment, postponement or continuance shall be by first
class mail to all parties at their last address according to the department
records.
Source. #2234, eff 1-1-83; amd by #2490, eff 10-1-83;
ss by #2930, eff 12-21-84, EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.08 Failure to Request Continuance or Postponement,
or to Appear. Failure except for
good cause such as accident or illness, to
appear at any scheduled hearing, or to request a postponement or continuance of
the hearing in advance thereof, shall be deemed to be a withdrawal of the
appeal or waiver of right to be heard, as the case may be, and the appeal shall
be closed, dismissed or a decision rendered.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5140, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 201.09 Decision. The commissioner’s decision shall be rendered
promptly after the case is submitted, and shall contain a statement of the
issues, the findings of fact, the conclusions, and the reasons therefor.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #6504, INTERIM, eff 5-5-97, EXPIRES: 9-2-97;
ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
PART
Emp 202 APPEAL TRIBUNAL
Emp 202.01 Appeal
to and Hearing by Appeal Tribunal.
(a) An appeal to an
appeal tribunal from a certifying officer’s determination shall be in writing
and filed in any office of the department within 14 calendar days from the date
of mailing of said determination. The
commissioner shall extend the time for filing pursuant to RSA 282-A:48 if he
finds sufficient grounds which shall include illness, accident, the death of a
family member, or similar problem beyond the control of the claimant, to
justify or excuse a delay in filing.
(b) Notice of an
appeal shall immediately be sent by e-mail notice pursuant to Emp 405.01, Emp
405.03, or Emp 405.05, or by first class mail to the other interested parties
and third party administrators or other representatives, and an appeal tribunal
chairman shall by e-mail notice pursuant to Emp 405.01, Emp 405.03, or Emp
405.05, or by first class mail send notice of the time and place of hearing to
all interested parties and third party administrators or other
representatives. The notice shall advise
parties that they may be represented by an attorney or other authorized
representative of their choosing and that free or low cost assistance may be
available.
(c) The appeal shall
be heard at the earliest possible date, but not earlier than the eighth
calendar day after notice of the hearing has been sent by e-mail notice
pursuant to Emp 405.01, Emp 405.03, or Emp 405.05, or by first class mail to
the interested parties, third party administrators, or other representatives
unless the commissioner finds:
(1) The interested parties, or their third party
administrators, or other representatives have either:
a. Agreed in writing to less than 8 calendar
days of notice; or
b. Agreed on the record while under oath to less
than 8 calendar days of notice;
(2) The holding of an earlier hearing is not
likely to result in the absence of witnesses or evidence which would otherwise
be available;
(3) The holding of an earlier hearing will serve
justice and efficiency; and
(4) The holding of an earlier hearing will not
adversely affect the appeal tribunal's ability to efficiently manage the
docket.
(d) The interested
parties shall be present and ready with all witnesses and evidence, and shall
be prepared to dispose of all issues relating to entitlement to benefits, at
the scheduled place and time.
(e) To the extent
possible the appeal shall set forth the grounds upon which it is claimed that
the certifying officer's determination is incorrect. However, any issue relevant to claims shall
be considered at the hearing, except where the jurisdiction of the appeal
tribunal is limited upon further hearing when reopening is ordered by the
commissioner.
(f) All department
records used at the hearing shall be produced and identified at the hearing by
the chairman, reviewed by the tribunal and may be examined by the parties. Records, other than department records, shall
be admitted only when in the judgment of the chairman such are duly
authenticated.
(g) The chairman of
an appeal tribunal shall determine all questions as to the admissibility of
evidence. All members of the tribunal
may examine a witness. The chairman
shall swear all witnesses or obtain their affirmation. The chairman shall determine the procedure
and shall, for no longer than 30 days except with the approval of the
commissioner, continue, adjourn or postpone a hearing.
(h) A hearing shall
be continued, adjourned or postponed for up to 30 days by the chairman or
longer than 30 days with the approval of the commissioner if the chairman or,
if necessary, the commissioner find that continuance, adjournment or
postponement are required for:
(1) A prehearing conference;
(2) Proper notice to an interested party;
(3) Obtaining the presence of a witness;
(4) Avoiding fraud or mistake;
(5) Providing due process; or
(6) Similar reasons.
(i) If a
party wishes to submit evidence after the close of a hearing, the party shall
submit a request to the appeal tribunal with notice to the other parties. The tribunal shall give notice of the request
to the other parties of their right to object to the taking of the evidence and
to refute the evidence. Where further
hearing is ordered, notice of place and time shall be as in (b) above.
(j) The tribunal
shall grant a request for the submission of evidence after the close of the
hearing if it finds that acceptance of the evidence would:
(1) Avoid fraud or mistake;
(2) Provide due process;
(3) Result in the submission of evidence which is
newly discovered and which was not available to the affected party upon
reasonable search at the time of the hearing; or
(4) Similar reasons.
(k) A chairman shall
determine after examination whether to accept sworn or affirmed stipulations of
the interested parties as to all the facts in a case or in addition or in lieu
thereof, to require oral sworn or affirmed testimony. Request for permission to
file stipulation shall be made to the chairman not less than 3 calendar days
prior to the scheduled hearing, otherwise the hearing will proceed as
scheduled.
(l) A chairman shall
deny access to a hearing or to the use and benefits of an appeal tribunal to an
individual, interested parties excepted, for conduct which constitutes:
(1) Fraud;
(2) Neglect of duty;
(3) Disorderly, unruly or willfully contemptuous
conduct at a hearing;
(4) Intentional or repeated failure to observe
the
(5) The acceptance of fees in excess of those
allowed by the commissioner.
(m) Where action as
provided in Emp 202.01(1) is limited to one appeal, notice of denial of access
shall be given orally by the chairman, but where the action taken affects more
than one appeal such notice shall be in writing and sent by e-mail notice
pursuant to Emp 405.01, e-mail notice pursuant to Emp 405.03, or by first class
mail to the individual affected.
(n) Where a
claim or question involved therein is referred to an appeal tribunal as
provided in RSA 282-A:47 such shall be treated as an appeal case, to the extent
applicable, under this rule.
(o) Except where a
chairman sits alone the decision of the appeal tribunal upon an appeal shall be
determined by a majority vote. However,
the minority may file a written dissent setting forth the reasons therefor.
(p) Any party
may be represented by counsel or other representative, but such person
appearing on behalf of a party, except for a claims representative providing
assistance pursuant to RSA 282-A:134, shall first file a letter announcing the
fact of representation at the earliest date practical and shall send a copy of
such letter to all parties. Parties
shall retain counsel at their own expense and requests for appointment of
counsel shall not be entertained. No fee
shall be charged for representing an individual seeking benefits without prior
approval pursuant to RSA 282-A:158 and Emp 204.
(q) The appeal
tribunal chairperson, upon motion, or upon his or her own initiative, shall if
justified by the facts, the complexity of issues, the presence of one or more
of the items listed at Emp 202.01(r), or similar factors, direct all interested
parties to attend one or more prehearing conference to aid in the disposition of
the proceeding.
(r) Subjects to be
considered at a prehearing conference may be:
(1) Opportunities and procedures for settlement
if appropriate;
(2) Opportunities and procedures for
simplification and limitation of the issues;
(3) Possible amendments to the pleadings;
(4) Possible admissions of fact and of documents
to avoid unnecessary proof;
(5) Possible limitations on the number of
witnesses;
(6) Possible changes to the
standard procedures which would otherwise govern the proceeding;
(7) The distribution of written testimony, if
any, and exhibits to the parties;
(8) Possible consolidation of the examination of
witnesses by the parties; and
(9) Any other matters which might contribute to
the prompt and orderly conduct of the proceeding.
(s) The appeal
tribunal shall cause prehearing conferences to be recorded unless all parties
wish to discuss possible settlement off the record. Matters decided at a
prehearing conference shall be reflected in an appropriate order.
(t) Subpoenas for
the attendance of witnesses or the production of evidence shall be issued
pursuant to RSA 282-A:124 upon a showing that:
(1) The testimony or evidence is necessary,
relevant and non-repetitive; and
(2) The witness or evidence cannot be voluntarily
obtained.
(u) Whenever
it shall appear to the appeal tribunal, upon motion or its own initiative, that
2 or more proceedings involve substantially similar or substantially related
issues, the appeal tribunal shall, as fairness and efficiency permit,
consolidate those proceedings for hearing, or decision, or both.
(v) Testimony in
interstate appeals by parties located out of state shall be by telephone or
video conference unless otherwise ordered due to the request of the party or
parties located out of state, the presence in the state of all parties or
similar reasons. If the party or parties located out of state will be
testifying by telephone, testimony by parties located within the state may give
testimony either by telephone, video conference or in person.
(w) Testimony in
intrastate appeals shall be in person, or by video conference that shall allow
parties to view and hear witnesses as testimony is being presented and to cross-examine,
subject to (x) and (y) below.
(x) Testimony in
intrastate appeals shall be by telephone only if:
(1) All parties have been given opportunity to
object;
(2) No party has objected;
(3) There is not a question of credibility for
which there is no direct evidence other than the demeanor of one or more
witnesses; and
(4) Presence at an in-person or video conference
hearing would be difficult for one or more parties due to:
a. Illness or disability;
b. Prohibitive distance;
c. Lack of transportation; or
d. Similar reasons.
(y) Ability
to submit testimony by telephone or by video conference shall be contingent on
availability of the necessary services and equipment.
(z) Whenever it is clear
to the appeal tribunal that a certifying officer’s determination was issued
without notice to all interested parties or all issues were not addressed and
such issues cannot be adequately or efficiently initially resolved in the
context of the appeal tribunal hearing, the appeal tribunal shall vacate all or
part of the certifying officer decision and remand those portions to the
certifying officer's unit for further action or decision.
Source. #2234, eff 1-1-83; amd by #2490, eff 10-1-83;
ss by #2930, eff 12-21-84; amd by #3154, eff 12-2-85; ss by #5141, eff 5-6-91;
ss by #6504, INTERIM, eff 5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97,
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06; ss by #9526, eff 8-17-09
PART
Emp 203 APPELLATE DIVISION; ORGANIZATION
AND APPLICABILITY OF RULES -
EXPIRED:
AND RESERVED
PART Emp 204
APPROVAL OF FEES
Emp
204.01 Scope of Rules. These rules shall govern all petitions for
approval of fees pursuant to RSA 282-A:158.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469,
INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp
204.02 Written Petitions.
(a)
Any individual claiming benefits may be represented by counsel or other
duly authorized agent. No such counsel or
agent shall either charge or receive for such services more than an amount
approved by the commissioner or his designee following the filing of a written
petition requesting such approval.
(b)
The written petition shall:
(1) Identify the claimant and the proceedings for
which services were rendered;
(2) Contain an itemized statement of such
services rendered, including the dates and time spent performing said services;
and
(3) State the results achieved for the claimant.
(c)
The written petition may be accompanied by a written memorandum in
support of the requested fees, including any offers of proof the petitioner
wishes the commissioner or his designee to consider.
(d)
A copy of the petition and any memorandum by the petitioner shall be sent
to the claimant by the petitioner. The
petition shall include a statement that the claimant has 14 calendar days to
file an objection. The petition shall
contain a certification that a copy of the petition and memorandum if any, were
sent to the claimant and that the claimant was advised in writing on the
petition that the claimant had 14 calendar days to file an objection.
(e)
The claimant may, within 14 calendar days of the date of mailing, file
an objection to the petition with the commissioner. The objection shall specify the portions of
the requested fees that the claimant disputes and shall specify the reasons for
the claimant's objection. The objection
may be accompanied by a written memorandum.
A copy of the objection and any memorandum shall be sent to the counsel
or agent who filed the petition. The
objection and any memorandum shall certify that such copies were sent.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM,
eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05, EXPIRED:
9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp
204.03 Approval of Fees.
(a) Upon receipt of an objection to a petition,
or following expiration of the 14-day period for objecting, the commissioner or
his designee shall approve a fee in a reasonable amount.
(b)
A fee shall be considered reasonable if the following are true:
(1) The time and labor required are commensurate
with the fee;
(2) The complexity of the case, the novelty and
difficulty of the questions involved, and the skill requisite to perform the
services properly are proportionate with the fee;
(3) The amount of benefits involved and the
results obtained justify the fee;
(4) If the employer was represented by an
attorney, it made the case more difficult for the claimant or representation by
an attorney necessary or desirable;
(5) The terms of the claimant’s attorney’s fee
agreement, if any, are consistent with the fee; and
(6) If an unsuccessful appeal to the appeal
tribunal was initiated by the claimant, the fee is not for an appeal which was
without merit based on statutory and case law unless evidence shows that the
appeal was against the advice of the counsel or agent.
(c)
Nothing in this rule shall prevent the commissioner or his designee from
scheduling a hearing upon the petition should he determine that additional
information is necessary for him to render a decision.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp 204.04 Reconsideration.
(a)
Within 14 calendar days after the mailing of the decision on the
petition for approval of fees, either party, except a party who failed to
object to the original petition, may file a written request for reconsideration,
stating specifically the reasons therefor.
A decision shall be presumed mailed on the date of the decision. A request shall be presumed filed when
received by the department in any of its offices. The deadline for filing shall be extended to
the next business day if the filing deadline falls on a federal or
state-recognized holiday or on a weekend.
(b)
Any party seeking reconsideration may also file a written request for a
hearing, stating specifically why a hearing is necessary, what evidence would
be submitted, and why written statements or offers of proof are inadequate.
(c)
Either party may, within 14 calendar
days of the date of filing, file an objection to any request for
reconsideration or hearing.
(d)
A copy of any requests or objections filed shall be sent to the other
party. All requests and objections shall
contain a statement of compliance herewith.
(e)
Upon receipt of an objection, or following expiration of the 14-day
period for objecting, the commissioner or his designee shall:
(1) Schedule a hearing upon such issues or
questions of fact as are needed to render a determination on whether the
decision is affected by fraud, mistake of law, mistake of fact, or newly
discovered evidence;
(2) Reconsider the original decision based upon
the written reconsideration request and any objection thereto if such indicate
the decision is affected by fraud, mistake of law, mistake of fact, or newly
discovered evidence; or
(3) Deny the request for reconsideration.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp 204.05 Hearings.
(a)
All evidentiary hearings under Emp 204 shall be held in accordance with
Emp 201.02 - 201.08.
(b)
The commissioner or his designee shall, in the notice of hearing,
specify issues and/or questions of fact to be considered at the hearing if such
is necessary to place parties on notice, avoid surprise or assure preparation
of evidence or presence of witnesses. In
such case, the scope of the hearing shall be limited to the issues and/or
questions stated in the notice of hearing.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp 204.06 Decision. If there is an objection to a petition or a
petition is not otherwise approved, the commissioner or his designee shall
identify the information relied upon in his decision and shall make written findings
in support of his decision. Except as
provided in Emp 204.04, the decision of the commissioner or his designee shall
be final.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
Emp
204.07 Suspension of Rules.
(a) The commissioner or his designee shall
suspend the requirements or provisions of any of Emp 204 if:
(1) Such waiver would not violate the right of
all parties in a contested case to have an opportunity for an adjudicative
proceeding, or all parties waive such right; and
(2) The commissioner or his designee determine
that such waiver will expedite the rendering of a decision and that the rule to
be waived is not necessary to provide the information needed to render a
decision.
(b)
In the event of a suspension of rules, the reasons for the same shall be
provided to the parties in writing if an aggrieved party so requests within 14
days.
Source. #5137, eff 5-6-91; ss by #6504, INTERIM,eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
PART
Emp 205 PETITIONS
Emp 205.01 Petition for Adoption, Amendment or Repeal
of Rules.
(a)
Under the provisions of RSA 541-A:4, submission of a petition to adopt a
rule, or to amend or repeal an existing rule, shall be made in writing to the
commissioner, and contain the following information:
(1) The full name and address of the petitioner;
(2) The purpose of the petition such as adoption,
amendment or repeal of a rule together with a detailed statement outlining the
petitioner's request;
(3) Reference to the statute or statutes upon
which the petition for adoption, amendment or repeal of a rule is requested;
(4) A statement whether, to the best of the
petitioner's knowledge, the issue which is the subject of the petition is:
a. The subject of an administrative appeal or
pending in litigation; or
b. The subject of a decision which has become
final.
(b)
The commissioner shall, within 30 days after receipt of a petition under
this rule, either deny the petition in writing, stating therein his reason for
denial, or shall initiate rulemaking proceedings.
(c)
Reasons for denial shall include:
(1) The adoption, amendment or repeal of the rule
would conflict with a statute;
(2) The adoption, amendment or repeal of the rule
would conflict with public policy;
(3) The adoption, amendment or repeal of the rule
would change a long-term effect on the regulated public more appropriately
changed by the legislature; or
(4) The adoption, amendment or repeal of the rule
is deemed inappropriate for similar reasons.
Source. #6565-B, eff 9-2-97 (formerly Emp 102.01),
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 205.02 Petition
for Declaratory Ruling.
(a)
Under the provisions of RSA 541-A:16, I(d), submission of a petition for
a declaratory ruling, as defined at RSA 541-A:1,V, shall be in writing to the
commissioner and contain the following:
(1) A complete statement of the facts relating to
the issues;
(2) The full names and addresses and, if
applicable, social security numbers and department of employment security
employer numbers, of all parties;
(3) True copies of all contracts, deeds, agreements,
instruments and other documents involved in the issues;
(4) Reference to the statute or statutes relating
to the subject of the petition for declaratory ruling;
(5) A statement whether, to the best of the
petitioner's knowledge the issues which are the subject of the petition are:
a. The subject of an administrative appeal, or
pending in litigation;
b. The subject of a decision which has become
final;
c. As regards to a prior time period, the
subject of an administrative appeal, pending in litigation or the subject of a
decision which has become final; and
d. Whether there are, have been, or will be
similarly-situated individuals, partnerships or corporations and if known, who
they are.
(b) A petition for
declaratory ruling and any factual information submitted therewith shall be
accompanied by a declaration in the following form:
“I declare that I have
examined this petition, including accompanying documents, and to the best of my
knowledge and belief, the facts presented in support of the requested
declaratory ruling are true, correct, and complete.”
Source. #6565-B, eff 9-2-97 (formerly Emp 102.02),
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 205.03 Disposition
of Petitions For Declaratory Rulings.
(a) Within 45 days
after a petition for declaratory ruling has been received in the office of the
commissioner the commissioner or his authorized representative shall determine
whether additional information or representations are needed from the
petitioner and shall request the additional information or representations.
(b) The commissioner
or his authorized representative shall entertain briefs or conduct a hearing or
both if he determines that additional information is necessary for him to
render a decision.
(c) Declaratory
rulings shall be issued within 90 days of the date of the receipt of the
petitioner’s request or within 60 days of the receipt of needed additional
information or representations, the receipt of briefs or of any hearing held,
whichever is later.
(d) A petition shall
be dismissed if its subject matter is described at Emp 205.02(a)(5)a., b. or c.
or if because of the nature of the subject matter or the failure of any
petitioner to submit additional information, representations, requested briefs
or to appear at any hearing, the department is unable to rule.
Source. #6565-B, eff 9-2-97 (formerly Emp 102.03),
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp 205.04 Effect
of Declaratory Ruling.
(a) No other
individual, partnership, limited liability company or corporation shall rely on
a declaratory ruling issued to a petitioner.
(b) A declaratory
ruling issued with respect to a particular set of facts represents a holding of
the department as to the particular set of facts and as to the petitioner only.
(c) As a declaratory ruling is non-adjudicative, the petitioner shall not rely that any future adjudicative ruling will be consistent if in the context of the adjudicative proceeding any new evidence, facts or arguments are presented.
Source. #6565-B, eff 9-2-97 (formerly Emp 102.04),
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
Emp
205.05 Filing and Publication of
Declaratory Rulings. After deletion
of the name of the petitioner, declaratory rulings shall be made available to
the public and filed with the director of legislative services pursuant to RSA 541-A:16,
II. To the extent that the identity of
the petitioner can be discerned from the declaratory ruling, the petitioner
shall be deemed to have waived confidentiality by the filing of the petition
for declaratory ruling.
Source. #6565-B, eff 9-2-97 (formerly Emp 102.05)
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-A
eff 5-6-06
PART
Emp 206 RECORDS
Emp 206.01 Destruction
of Records. Any and all records,
reports, transcripts, or reproductions thereof, or other papers or
electronically stored information submitted to or prepared by the
Source. #6566, eff 9-2-97 (formerly Emp 401.01),
EXPIRED: 9-2-05
New. #8469, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8626-B, eff 5-6-06
PART Emp 207 PRACTICE AND PROCEDURE
Emp 207.01 Purpose. The purpose of this section is to supplement
to the extent applicable, the rules of the department and the procedures
established under RSA 282-A relating to conduct of hearings.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.02 Application. The rules in this part shall apply to
adjudicative proceedings conducted under RSA 282-A only to the extent not addressed
in RSA 282-A and in other rules of the department.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.03 “Party”
means “Interested Party” as defined at RSA 282-A:42, III.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.04 Presiding
Officer; Appointment; Authority.
(a) All hearings
shall be conducted for the department by a natural person appointed or
authorized to serve as a presiding officer.
(b) A presiding
officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an informal resolution of an
appeal;
(3) Administer oaths and affirmations;
(4) Issue subpoenas to compel the attendance of
witnesses at hearings or the production of documents;
(5) Receive relevant evidence at hearings and
exclude irrelevant, immaterial or unduly repetitious evidence;
(6) Rule on procedural requests, including
adjournments or postponements, at the request of a party or on the presiding
officer's own motion;
(7) Question any person who testifies;
(8) Cause a complete record of any hearing to be
made, pursuant to RSA 282-A:57 and 282-A:96;
(9) Take any other action consistent with
applicable statutes, rules and case law necessary to conduct the hearing and
complete the record in a fair and timely manner; and
(10) Allow brief opening and closing arguments
where they will assist in summarizing factual or legal issues or narrowing
issues.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.05 Withdrawal
of Presiding Officer or Department Official.
(a) Upon his or her
own initiative or upon the motion of any party, a presiding officer or
department official shall, for good cause withdraw from any hearing.
(b) Good cause shall
exist if a presiding officer or department official:
(1) Has a direct interest in the outcome of a
proceeding, including, but not limited to, a financial or family relationship,
including spouse or a relative by blood, marriage or adoption, including
parent, child, grandparent, sibling, grandchild, great grandparent, uncle,
aunt, nephew, niece, great grandchild, great great grandparent, great uncle,
great aunt, first cousin, grand nephew, grand niece and great great grandchild,
with any party;
(2) Has made
statements or engaged in behavior which objectively demonstrates that he or she
has prejudged the facts of a case; or
(3) Personally
believes that he or she cannot fairly judge the facts of a case.
(c) Mere knowledge
of the issues, the parties or any witness shall not constitute good cause for
withdrawal.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.06 Waiver
or Suspension of Rules by Presiding Officer. The presiding officer, upon his or her own
initiative or upon the motion of any party, shall suspend or waive any
requirement or limitation imposed by this chapter upon reasonable notice to
affected persons when the proposed waiver or suspension appears to be lawful,
and would be more likely to promote the fair, accurate and efficient resolution
of issues pending before the department than would adherence to a particular rule
or procedure.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.07 Date
of Issuance or Filing. All written
documents governed by these rules shall be rebuttably presumed to have been
issued on the date noted on the document and to have been filed with the
department on the actual date of receipt by the department, as evidenced by a
date stamp placed on the document by the department in the normal course of
business.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.08 Format
of Documents.
(a) All correspondence,
pleadings, motions or other documents filed under these rules shall:
(1) Include the title and docket number of the
proceeding, if known;
(2) Be legible; and
(3) Indicate:
a. Who is filing the document; and
b. If the document is being filed by a
representative, the party for whom the document is being filed.
(b) A party or
representative's filing of a document with the department shall constitute
certification that:
(1) The filer has read the document;
(2) The filer is authorized to file it;
(3) To the best of the filer's knowledge,
information and belief there are good and sufficient grounds to support it; and
(4) The document has not been filed for purposes
of delay.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08; ss by 9526, eff 8-17-09
Emp 207.09 Delivery
of Documents.
(a) All notices,
orders, decisions or other documents issued by the presiding officer or the
department shall be delivered to all parties to the proceeding.
(b) Delivery of all
documents relating to a proceeding shall be made by personal delivery, by
e-mail notice pursuant to Emp 405.01, e-mail notice pursuant to Emp 405.03, or
by depositing a copy of the document, by first class mail, postage prepaid, in
the
(c) When a party
appears by a representative, delivery of a document to the party’s
representative at the address stated on the appearance filed by the
representative or by e-mail notice pursuant to Emp 405.05, shall constitute
delivery to the party.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08; ss by #9296, eff
10-17-08; ss by #9526, eff 8-17-09
Emp 207.10 Computation
of Time.
(a) Unless otherwise
specified, all time periods shall be calendar days.
(b) Computation of
any period of time referred to in these rules shall begin with the day after
the action which sets the time period in motion, and shall include the last day
of the period so computed.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.11 Motions;
Objections.
(a) Motions shall be
in written form and filed with the presiding officer, unless made in response
to a matter asserted for the first time at a hearing or on the basis of
information which was not received in time to prepare a written motion.
(b) Oral motions and
any oral objection to such motions shall be recorded in full in the record of
the hearing. If the presiding officer finds that the motion requires additional
information in order to be fully and fairly considered, the presiding officer
shall direct the moving party to submit the motion in writing, with supporting
information.
(c) Objections to
written motions shall be filed within 10 days of the date of the motion.
(d) Failure by an
opposing party to object to a motion shall not in and of itself constitute
grounds for granting the motion.
(e) The presiding
officer shall rule upon a motion after full consideration of all objections and
other factors relevant to the motion.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.12 Commencement
of Hearing. A hearing shall be
commenced by an order of the department giving notice to the parties.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.13 Docket
Numbers. A docket number shall be
assigned to each matter to be heard which shall appear on the notice of hearing
and all subsequent orders or decisions of the department.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.14 Notice
of Hearing.
(a) A notice of a
hearing issued by the department shall contain the following:
(1) A statement of the time, place and nature of
any hearing;
(2) A statement of the legal authority under
which a hearing is to be held;
(3) A reference to the appellant’s statement of
appeal and its date of filing;
(4) In benefit appeals, an excerpt from the
appellant’s written appeal which indicates the appellant’s disagreement with
the determination appealed; and
(5) A statement that each party has the right to
have an attorney represent them at their own expense and that free or low cost
assistance may be available.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.15 Appearances
and Representation.
(a) A party or the
party’s representative, except for a claims representative providing assistance
pursuant to RSA 282-A:134, shall file an appearance that includes the following
information:
(1) A brief identification of the matter;
(2) A statement as to whether or not the
representative is an attorney and if so, whether the attorney is licensed to
practice in
(3) The party or representative's daytime address
and telephone number.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.16 Prehearing
Conference. Any party may request,
or the presiding officer shall schedule on his or her own initiative, a
prehearing conference in accordance with RSA 541-A:31, V to consider:
(a) Offers of
settlement except where settlement would violate RSA 282-A:157;
(b) Simplification
of the issues;
(c) Stipulations or
admissions as to issues of fact or proof by consent of the parties;
(d) Limitations on
the number of witnesses;
(e) Changes to standard
procedures desired during the hearing by consent of the parties;
(f) Consolidation of
examination of witnesses; or
(g) Any other
matters which aid in the disposition of the proceeding.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.17 Role
of Department Staff in Enforcement or Disciplinary Hearings. Department staff shall have the same role in
any enforcement or disciplinary hearing as in any other proceeding, including,
as
necessary, investigator,
witness, claimant representative, department representative, presiding officer,
non-presiding officer and clerk.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.18 Role
of Complainants in Enforcement or Disciplinary Hearings. Unless called as a witness or a party, a
person who initiates an adjudicative proceeding by complaining to the
department about the conduct of a person who becomes a party shall have no role
in any enforcement or disciplinary hearing.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.19 Intervention. A non-party shall not intervene in a matter
pending before the department.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.20 Postponements
and Continuances.
(a) Any party to a
hearing may make an oral or written motion that a hearing be postponed or
continued to a later date or time.
(b) If a postponement
or continuance is requested by a party to the hearing, it shall be granted if
the presiding officer determines that good cause has been demonstrated. Good
cause shall include the unavailability of parties, witnesses or attorneys
necessary to conduct the hearing, or any other circumstances that demonstrate
that a postponement would assist in resolving the case fairly, unless such
unavailability is due to action or inaction on the part of the party.
(c) If the later
date, time and place are known at the time of the hearing that is being
postponed, the date, time and place shall be stated on the record. If the later
date, time and place are not known at the time of the hearing that is being
postponed, the presiding officer shall issue a written scheduling order stating
the date, time and place of the postponed hearing as soon as practicable.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.21 Failure
to Attend Hearing.
(a) If any party to
whom notice has been given in accordance with Emp 207.13 fails to attend a
hearing, the presiding officer shall either:
(1) Dismiss the case, if the party with the
burden of proof was also the appellant and fails to appear;
(2) Hear the testimony and receive the evidence
offered by a party, if that party has the burden of proof in the case; or
(3) Hear the testimony and receive the evidence
offered by a party if a fair record can be developed based on the available
evidence and the witnesses present or if the rights of any party present would
be violated by failure to proceed.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.22 Voluntary
Production of Information.
(a) Each party shall
attempt in good faith to make complete and timely response to requests for the
voluntary production of information or documents relevant to the hearing.
(b) When a dispute
between parties arises concerning a request for the voluntary production of
information or documents, any party may file a motion to compel the production
of the requested information under Emp 207.23.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.23 Motions
to Compel Production of Information.
(a) Any party may
make a motion requesting that the presiding officer order the parties to comply
with information requests. The motion shall be filed as soon as the need for
the information is discovered and either:
(1) No later than the close of the hearing; or
(2) If pursuant to or in furtherance of Emp
207.31, no later than the issuance of the decision on the merits.
(b) The moving
party’s motion shall:
(1) Set forth in detail those factors which it believes
justify its request for information; and
(2) List with specificity the information it is
seeking to discover.
(c) When a party has
demonstrated that such requests for information are necessary for a full and
fair presentation of the evidence at the hearing, the presiding officer shall
grant the motion.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.24 Pre-Hearing
Disclosure of Witnesses and Exhibits.
Pre-hearing disclosure of witnesses and exhibits shall be ordered when
necessary for a full and fair presentation of the evidence at the hearing.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.25 Record
of the Hearing.
(a) The department
shall record the hearing by tape recording or other method that will provide a
verbatim record.
(b) Copies of tape
recordings and transcriptions of hearings shall be provided pursuant to RSA
282-A:64, III, and shall be subject to the confidentiality provisions of RSA
282-A:117 through RSA 282-A:123.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.26 Standard
and Burden of Proof. The party
asserting a proposition shall bear the burden of proving the truth of the
proposition by a preponderance of the evidence.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.27 Testimony;
Order of Proceeding.
(a) Any person
offering testimony, evidence or arguments shall state for the record his or her
name, and role in the proceeding. If the person is representing another person,
the person being represented shall also be identified.
(b) Testimony shall be
offered in the following order:
(1) The party or parties bearing the burden of
proof and such witnesses as the party may call; and
(2) The party or parties opposing the party who
bears the overall burden of proof and such witnesses as the party may call.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.28 Evidence.
(a) Receipt of
evidence shall be governed by the provisions of RSA 541-A:33.
(b) All documents,
materials and objects offered as exhibits shall be admitted into evidence
unless excluded by the presiding officer as irrelevant, immaterial, unduly
repetitious, legally privileged or any other basis required by law.
(c) All objections
to the admissibility of evidence shall be stated as early as possible in the
hearing, but not later than the time when the evidence is offered.
(d) Transcripts of
testimony and documents or other materials, admitted into evidence shall not be
public records pursuant to RSA 91-A:5 and 6 and RSA 282-A:117 through 123.
(e) All department
records used at the hearing shall be produced and identified on the record by
the presiding officer.
(f) Evidence concerning
a claimant’s separation from employment shall only be considered relevant if
the evidence concerns an issue or fact which any party states may have been a
factor in the separation from employment.
(g) Evidence
concerning a claimant’s separation from employment which is discovered after
the separation shall only be considered relevant if the evidence concerns
either:
(1) Wrongdoing that would have led to the
claimant’s termination had the employer known of it prior to the separation; or
(2) The credibility of a party or witness.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.29 Proposed
Findings of Fact and Conclusions of Law.
(a) Proposed
findings of fact and conclusions of law shall not be submitted.
(b) In lieu of
proposed findings of fact and conclusions of law, parties may submit written
arguments and summaries.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.30 Closing
the Record.
(a) After the
conclusion of the hearing, the record shall be closed and no other evidence shall
be received into the record, except as allowed by paragraphs (b) of this
section and Emp 207.31.
(b) Before the
conclusion of the hearing, a party may request that the record be left open to
allow the filing of specified evidence not available at the hearing. If the
other parties to the hearing have no objection and the presiding officer
determines that such evidence is necessary to a full consideration of the
issues raised at the hearing, the presiding officer shall keep the record open
for the period of time necessary for the party to file the evidence and to
provide the opposing party the opportunity to review the evidence and offer
rebuttal.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.31 Reopening
the Record. At any time prior to the
issuance of the decision on the merits, the presiding officer, on the presiding
officer’s own initiative or on the motion of any party, shall reopen the record
to receive relevant, material and non-duplicative testimony, evidence or
arguments not previously received, and to provide the opposing party the
opportunity to review the evidence and offer rebuttal, if the presiding officer
determines that such testimony, evidence or arguments are necessary to a full
and fair consideration of the issues to be decided.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.32 Decisions.
(a) The department
official shall not participate in making a decision unless he or she personally
heard the testimony in the case, unless the matter’s disposition does not
depend on the credibility of any witness and the record provides a reasonable
basis for evaluating the testimony.
(b) The department
shall keep a decision on file in its records for at least 3 years following the
date of the final decision or the date of the decision on any appeal, unless
the director of the division of records management and archives of the
department of state sets a different retention period pursuant to rules adopted
under RSA 5:40 or a different retention period is established pursuant to RSA
282-A:120.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.33 Filing
and Content of Motion for Rehearing.
(a) A motion for
rehearing shall be filed within 14 days of the date of the department decision
or order.
(b) A motion for
rehearing shall:
(1) Identify each error of fact, error of
reasoning, or error of law which the moving party wishes to have reconsidered;
(2) Describe how each error causes the
department's decision to be unlawful, unjust or unreasonable, or illegal in
respect to jurisdiction, authority or observance of the law, an abuse of
discretion or arbitrary unreasonable or capricious;
(3) State concisely the factual findings,
reasoning or legal conclusion proposed by the moving party; and
(4) Include any argument or memorandum of law the
moving party wishes to file.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
Emp 207.34 Standard
for Granting Motion for Rehearing. A
motion for rehearing in a case subject to appeal under RSA 282-A shall be
granted if it meets the requirements of RSA 282-A:60 or 67, as applicable.
Source. #7246, eff 4-30-00; ss by #9126, INTERIM, eff
4-20-08, EXPIRES: 10-17-08; ss by #9296,
eff 10-17-08
CHAPTER Emp 300 EMPLOYER REQUIREMENTS
PART
Emp 301 PAYMENTS IN KIND
Emp 301.01 Reasonable
Value for Payments in Kind.
(a) Whenever board,
lodging, or any other payment in kind is considered as payment for services in addition
to or in lieu of, rather than a deduction from, money payments, the employing
unit shall use the cash values established in this section in computing the
total wages payable to such worker unless other cash values have been
determined by the commissioner
pursuant to Emp 301.01(e).
(b) Where a cash
value for board and lodging or both furnished a worker is agreed upon in any
contract of hire, the amount so agreed upon shall, if more than the rates
prescribed herein, be deemed the value of such board or lodging unless other
cash values have been determined by the commissioner pursuant to Emp 301.01(e).
(c) Until and unless
in a given case a rate for board or lodging is determined by the commissioner,
the rate for board or lodging
furnished in addition to or in lieu of money wages, shall be deemed to have not
less than the following values:
(1) Full board and room weekly $98.00;
(2) Full board and room per day $14.00;
(3) Meals per week $63.00;
(4) Meals per meal $3.00;
(5) Lodging per week $35.00; and
(6) Lodging per day $5.00.
(d) The reasonable
value of rent for a house or apartment shall be the value of such
accommodations to the worker.
(e) If the
commissioner determines based on economic information that the reasonable cash
value of a payment in kind in a particular case is other than the amount agreed
to in the contract of hire or as deemed in Emp 301.01(c) the commissioner shall
issue a determination pursuant to RSA 282-A:94.
Such determination shall be appealable pursuant to RSA 282-A:95.
Source. #2234, eff 1-1-83, EXPIRED: 1-1-89
New. #5142, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8625, eff 5-6-06
Emp 301.02 Payments
in Kind for the Convenience of the Employer.
(a) Payments in kind
for meals or lodging shall be considered remuneration for personal services
unless:
(1) The meals:
a. Are furnished on the business premises of the
employer for the convenience of the employer;
b. Are furnished without charge for substantial
non-compensatory business reasons; and
c. Are not furnished for the purpose of
additional compensation.
(2) The lodging:
a. Is furnished on the business premises of the
employer for the convenience of the employer;
b. Is furnished without charge for substantial
non-compensatory business reasons; and
c. Is not furnished for the purpose of additional
compensation.
(b) Substantial
non-compensatory business reasons shall include:
(1) To have employees on call;
(2) To have employees with restricted meal
periods; and
(3) Because adequate
eating or lodging facilities are not otherwise available.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5142, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8625, eff 5-6-06
Emp 301.03 Tips
and Gratuities.
(a) Tips and
gratuities reported to the employer in writing shall be wages under RSA 282-A
for all purposes, including, but not limited to:
(1) Annual earnings;
(2) Wage reports for "partial"
benefits;
(3) The calculation of wages for contributions
both as to the amount of contributions due on each report and the maximum amount
of wages subject to contributions.
(b) Tips and
gratuities shall be included in every employer’s separate account and shall be
used to compute the employer's average payroll in merit rate calculations.
(c) Claimants shall
report, when filing a claim for unemployment compensation, the amount of tips
and gratuities received.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5142, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRED: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8625, eff 5-6-06
PART
Emp 302 RECORDS AND REPORTS
Emp 302.01 Notice
of Employment.
(a) Every employing unit,
as defined in RSA 282-A:7 shall file with the department of employment security
a fully and properly executed "Employer Status Report":
(1) Within 30 days of furnishing any employment;
and
(2) Within 30 days of becoming an employer as
defined in RSA 282-A:8; and
(3) Within 30 days of any and all changes in its
status or any other information required to be furnished in said "Employer
Status Report";
(4) Within 30 days of the employing unit
transferring all, or a portion of, the employer’s trade, business, or workforce
to an employing unit; and
(5) As often as required by the department for
the purpose of clarifying inconsistent or out-of-date information.
(b) Employing units
shall supply on "Employer Status Report" the following information:
(1) Full business name and telephone number;
(2) Federal identification number;
(3) Address of principal place of business in
(4) Mailing address if different than
subparagraph (3) above;
(5) For each establishment or operation
maintained in
a. Principal activity;
b. Principal product, processes or services; and
c. Location of each unit;
(6) Type of business entity;
(7) If a corporation, the:
a. Full corporate name;
b. Date of incorporation;
c. State of incorporation; and
d. Name and address of
(8) If the business is a non-profit organization
and a copy of its letter of exemption if the business is a non profit
organization;
(9) The date on which employment was first
furnished in
(10) The date on which it ceased to furnish
employment in New Hampshire, if any, and the reason for cessation;
(11) If it will be subject to the Federal Unemployment
Tax Act in the current year;
(12) If it furnished employment in New Hampshire
in preceding years during which it was subject to the Federal Unemployment Tax
Act and if so which years;
(13) If it acquired any of the organization,
trade, business, workforce or New
Hampshire assets of any other employing unit or employer and if so:
a. The name and address of prior owner;
b. The date acquired;
c. The percentage of assets acquired;
d. If any business assets were not acquired and
what they were;
e. If the prior owner will remain in business in
f. The percentage of the workforce acquired;
(14) Its gross payroll for each quarter of the
current and two prior calendar years;
(15) If it expects to have a gross payroll of at
least $1,500 in the current calendar quarter;
(16) By week, the number of workers to whom it
furnished employment in
(17) If it also engaged any self-employed
individuals, subcontractors or consultants and if so, for each, their:
a. Name;
b. Trade; and
c. Address;
(18) If it had or expects to have a $1,000 quarterly
payroll for domestic services and if so the earliest quarter and year this has
occurred or will occur;
(19) If the report was prepared by other than a
sole proprietor the preparer's:
a. Name;
b. Firm name;
c. Date;
d. Signature;
e. Address;
f. Telephone number; and
g. Affirmation of accuracy under penalty of law;
and
(20) A list of the owner, all partners, authorized
corporate officers and authorized members of limited liability companies
including the:
a. Date signed;
b. Affirmation of accuracy under penalty of law;
c. Typed or printed name of each individual;
d. Social security number of each individual;
e. Resident address of each individual;
f. Title of each individual; and
g. Signature of each individual.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5143, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRED: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8625, eff 5-6-06; ss by #8946, eff 7-21-07
Emp 302.02 Quarterly
Reports.
(a) Every employer
on or before the date contributions are due shall complete and file an “Employer
Tax and Wage Report” supplied by the department of employment security at any
of its offices or in an electronic format compatible with the department's
technology.
(b) Every employer
who has furnished no employment during the applicable reporting period shall
submit an “Employer Tax and Wage Report” indicating no employment has been
furnished during such period.
(c) Upon
application, the commissioner shall, where no employment is to be furnished,
waive for a period of not more than 12 months the requirement of filing an
“Employer Tax and Wage Report” and in the case of an employer who furnishes
only seasonal employment shall waive such requirement during the usual and
ordinary season where no employment is furnished.
(d) Every employer
with 250 or more employees and every person or organization which, as agent,
reports wages on a total of 250 or more employees on behalf of one or more
subject employers, shall file that portion of the quarterly “Employer Tax and
Wage Reports” which contains the name, social security number, and gross wages
of each individual in employment on magnetic tapes or diskettes. The magnetic
tapes or diskettes shall contain an electronic signature identifying the
individual responsible for the accuracy of the report.
(e) The commissioner
or his authorized representative shall waive the requirement in (d) upon a
showing of lack of automation, economic hardship, or similar reasons. Any
request for such waiver shall be submitted in writing specifying the reason for
the request. An appeal from a
determination on a request for exemption shall be pursuant to RSA 282-A:95, 96,
97, and 67.
(f) Employers shall
supply on an “Employer Tax and Wage Report” the following information:
(1) State employer account number;
(2) Federal employer identification number;
(3) The calendar quarter for which the report is
being filed;
(4) The due date of the report;
(5) The employer's business location address;
(6) Whether there have been any business changes;
(7) The specific nature of any business changes
including:
a. Change of business location;
b. Change of mailing address;
c. Change of form of business;
d. Date employer out of business;
e. Date employer ceased
f. Date business sold; and
g. Name and address of purchaser of business;
(8) The signature and information required by Emp
302.04 of the person providing the information concerning the specific nature
of any business change;
(9) The number of workers in the pay period
including the 12th of the month for each of the 3 months in the calendar
quarter;
(10) The total wages paid in the quarter;
(11) The wages paid during the quarter per worker
during the calendar year in excess of the amount subject to taxation;
(12) The net taxable wages;
(13) The employer's tax rate for the calendar
quarter;
(14) The tax due for the calendar quarter;
(15) The amount of interest due if payment is
delinquent;
(16) The amount of the late-filing fee if the
report is delinquent;
(17) The net amount to be paid including any
previous balance if such previous balance has been provided on the form by the
department;
(18) The information and signatures required by
Emp 302.04;
(19) For each employee during the calendar quarter
the employee's:
a. Name;
b. Social security number; and
c. Gross wages; and
(20) The total wages for each page providing the
information required at subparagraph (19) above.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84;
amd by #4159, eff 11-5-86; amd by #4350, eff 12-28-87; amd by #4539, eff
12-9-88; ss by #5143, eff 5-6-91; ss by #6504, INTERIM, eff 5-5-97, EXPIRES:
9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRED: 4-30-06
New. #8625, eff 5-6-06
Emp 302.03 Payment
Vouchers.
(a) When necessary
to determine the accuracy of an individual's reported earnings or hours worked during
a week for which benefits have been claimed, the department shall send a
“Payment Voucher” form to an employing unit.
(b) The department
shall provide the following information on a “Payment Voucher” form:
(1) The name and social security account number
of the individual;
(2) The week or weeks for which information is
needed;
(3) The date of mailing of the form; and
(4) The electronic, e-mail, fax, delivery and
mailing addresses for response.
(c) The employing unit shall supply on a "Payment
Voucher" form the following information:
(1) The amount of gross wages paid or payable to
the individual for each week for which information is requested;
(2) Whether the individual failed to perform all
available work;
(3) The number of hours worked by the individual
for each calendar week for which information is requested; and
(4) The individual's social security number if
the records of the employing unit indicate a different social security number of the individual than
the number supplied by the department on the form.
(d) Gross wages
shall include:
(1) Wages for services;
(2) Vacation pay;
(3) Severance pay;
(4) Bonus payments;
(5)
(6) Supplemental unemployment benefits;
(7) Wages in lieu of notice;
(8) Periodic payments of any nature; and
(9) Similar payments.
(e) The employing
unit shall return the information to the department at the address designated
on the form within 7 calendar days from the date of mailing by the department
of the “Payment Voucher” form.
(f) The employer
shall return the information by one of the following methods:
(1) Electronically if the employer has registered
pursuant to Emp 405.04; or
(2) By e-mail, fax, delivery, or mail.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5143, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97; ss by #7247, eff 4-30-00; ss
by #7619, eff 12-30-01; ss by #8558,
INTERIM, eff 1-31-06, EXPIRES: 7-30-06; ss by #8675, eff 7-8-06; ss by #9527,
eff 8-17-09
Emp 302.04 Authority
and Identity Required.
(a) All reports and
all information verification and waiver forms required by RSA 282-A:45 and Emp
302.08 submitted by or on behalf of an employer or employing unit shall:
(1) Be submitted by:
a. The employer or employing unit, one or more
general partners, one or more members of a limited liability company or a duly
authorized employee; or
b. An agent authorized pursuant to Emp 302.10;
(2) State the name and title of the individual
submitting the report or form; and
(3) State the date of submission.
(b) If prepared by
an individual other than the individual submitting pursuant to (a)(1) above,
shall:
(1) Identify the preparer;
(2) State the preparer’s telephone number; and
(3) State the business address of the preparer.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5143, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97; ss by #7247, eff 4-30-00; ss
by #7619, eff 12-30-01; ss by #8558,
INTERIM, eff 1-31-06, EXPIRES: 7-30-06; ss by #8675, eff 7-8-06; ss by #9527,
eff 8-17-09
Emp 302.05 Records
to be Kept by Each Employing Unit and Each Employer.
(a) Each employing
unit having employment performed for it shall establish and maintain, with
respect to each worker engaged in such employment, the following records:
(1) The period covered by the payroll;
(2) For each worker:
a. The worker's name;
b. The date on which the worker was hired,
rehired, or returned to work after lay-off, and the date when the worker was
separated from employment;
c. For each calendar week in which the worker
performed any service in employment, the number of hours the worker was
employed;
d. The worker’s wages earned in each pay period,
showing separately:
1. Money wages;
2. Cash value of all other remuneration received
from the worker's employer; and
3. Any special payments for services other than
those rendered exclusively in a given pay period, such as bonuses, gifts,
prizes, separation allowance, accrued leave, vacation, sickness allowance,
payments in lieu of notice, showing separately:
(i) Money payments;
(ii) Other remuneration; and
(iii) The nature of such payments and the period
during which such payments were made;
e. Amount and date of such wage payment; and
f. The worker's social security number; and
(3) For each place of employment, the number of
workers in covered employment.
(b) In addition to
all other records required to be established, maintained and preserved by any
other rule or by statute, every employing unit having “included service” and
“excluded service” as described in RSA 282-A:9(V) shall establish, maintain and
preserve for each worker engaged in the performance of such services the
following records:
(1) The number of hours in each pay period during
which the worker was engaged in “included service”; and
(2) The number of hours in each pay period during
which the worker was engaged in “excluded service”.
(c) Each employer
shall keep the employer's payroll records in such form that it shall be
possible from an inspection thereof to determine with respect to each worker in
the employer's employ who may be eligible for partial benefits the following:
(1) Wages earned, by weeks;
(2) Whether any week was in fact a week of less
than full-time work; and
(3) Time lost, if any, by each such worker, due
to reasons other than lack of work.
(d) The records
listed in Emp 302.05(a), (b) and (c) shall be preserved for a period of not
less than 6 years after the calendar year in which the remuneration for the
services was paid, or, if not paid, was due.
(e) If the
commissioner finds that the customary records kept by the employer are sufficient
to determine readily all of the requirements of this regulation, the employer
shall not be required to change the employer's method of record keeping or to
keep any additional records.
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5143, eff 5-6-91; ss by #6504, INTERIM, eff
5-5-97, EXPIRES: 9-2-97; ss by #6566, eff 9-2-97, EXPIRED: 9-2-05
New. #8470, INTERIM, eff 11-1-05, EXPIRES: 4-30-06;
ss by #8549, INTERIM, eff 1-26-05, EXPIRES: 7-25-06; ss by #8674, eff 7-8-06
Emp 302.06 Penalty.
- EXPIRED
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
New. #5143, eff 5-6-91; EXPIRED: 5-6-97
Emp 302.07 Force
and Effect of Instructions on Forms. - EXPIRED
Source. #2234, eff 1-1-83; ss by #2930, eff 12-21-84,
EXPIRED: 12-21-90
Emp 302.08 Notice
of Claim, Request To Employer For Separation Information Form, Waiver, and
Determination on Claim.
(a) The certifying
officer shall provide the following information on the notice of claim Request
To Employer For Separation Information form required under RSA 282-A:45 of the
unemployment compensation law:
(1) The name and social security account number
of the claimant;
(2) The claimant’s reported dates of employment
and reason for separation with the employer or employing unit;