La. Admin. Code tit. 40 § XVII-2903

Current through Register Vol. 50, No. 11, November 20, 2024

Section XVII-2903 - Selection of Hearing Officer and Responsibilities

A. Specific person(s) should be identified by the Department of Labor to function in a quasi-judicial capacity in relation to the hearing process. Each party will be notified as to the hearing officer(s) selected to conduct their appeal or hearing at least 10 days prior to the hearing. Standards to be applied in selection of these persons are as follows.

1. They should have independence in obtaining facts and making decisions.

2. The hearing officer(s) must be in a position to render impartial decisions that are fair.

B. If either party to the complaint is aware of facts or circumstances which put the designated hearing officer's independence and impartiality in question, the appointing body should be notified within five days of receiving notice. An alternate(s) will be appointed if deemed appropriate by the Department of Labor. In all cases, documentation regarding the allegation and how it was handled should be included in the file.

C. Responsibilities within the scope of the designated hearing officer(s) are:

1. directs preparation of and reviews a complete file on the case prior to the hearing;

2. directs parties to appear at hearing;

3. holds hearing;

4. receives evidence;

5. disposes of procedural requests;

6. questions witnesses and parties, as required;

7. considers and evaluates facts, evidence and arguments to determine credibility;

8. renders decision and issues it in writing to all parties involved; and

9. provides the complete record including:

a. all pleadings, motions and intermediate rulings;

b. detailed minutes of the oral testimony plus all other evidence received or considered;

c. a statement of matters officially noted;

d. all staff memoranda or date submitted to the decision maker in connection with their consideration of the case;

e. findings of fact based on the evidence submitted at the hearing;

f. notification of further appeal procedures, if applicable; and

g. final decision of the hearing officer.

D. The hearing may be conducted informally. Unnecessary technicalities (i.e., legal requirements that would be appropriate in court proceedings) should be avoided. It will provide the flexibility to enable adjustment to the circumstances presented. The following guidance is provided in respect to the hearings.

1. Full regard should be given to the requirements of due process to ensure a fair and impartial hearing.

2. All testimony at any hearing before the hearing officer(s) designated at the state level shall be mechanically recorded.

3. The hearing officer should begin the hearing by summarizing the record and the issues, affording both parties an opportunity to review such record, and should explain the manner in which the hearing will be conducted, making sure that everyone involved understands the proceedings. Such explanation should be adapted to the needs of the specific situation. The hearing officer shall take testimony under oath or affirmation to give some assurances of veracity to the hearing.

4. The burden of proof should be reasonable and flexible, dependent upon the circumstances of the case involved. The hearing officer(s) determines the order of proof. Generally, the agency making the complaint has the obligation of establishing its case, and should be examined first.

5. The parties involved may be represented, but are responsible for securing such representation. Otherwise, he/she is limited to his/her own abilities and those of the hearing officer(s) in obtaining testimony in the case.

6. It is important that the hearing officer(s) obtain the fullest information for the record. If the parties involved, or their representatives, do not know how to ask the right or pertinent question, in pursuing their right to due process, it shall be necessary for the hearing officer(s) to assist in having all the material and relevant facts elicited.

7. The practice in informal hearings is generally not to apply strict rules of evidence in obtaining facts. However, the quantity of evidence required to support a decision on an issue should be sufficiently credible that a court, upon reviewing the decision, would conclude that it is supported by substantial evidence.

8. The general rules in law should be applied in decision on remedies, which should be reasonable and fit the problem and/or violation.

9. The hearing officer(s) may accept any resolution of the issue agreeable to all parties at any time prior to the rendering of a decision, as long as such agreement does not violate state or federal law.

La. Admin. Code tit. 40, § XVII-2903

Promulgated by the Department of Labor, Office of Labor, LR 21:1345 (December 1995).

AUTHORITY NOTE: Promulgated in accordance with R.S. 23:66 et seq.