Current through Register Vol. XLI, No. 50, December 13, 2024
Section 84-1-5 - General Hearing Procedures and Policies5.1. Time, Place, and Manner of Hearing.-- Upon receipt of a duly filed appeal of the decision of a deputy commissioner, or following the Commissioner's referral of a labor dispute case, the Board shall set the date, time, and place at which a hearing will be conducted. Location of the hearings shall be set by the Board at its discretion to achieve judicial efficiency. 5.1.1. Notice of Hearings.-- Notice of the date, time, and place of hearing shall be sent to all interested parties at least ten (10) days in advance of the hearing date.5.1.2. If a continuance of the hearing is granted, the ten (10) day notice requirement may be waived.5.2. Telephonic Hearings.-- The Board, in its discretion, may schedule appeal tribunal hearings telephonically or in person. Any party has a right to an in-person hearing. For good cause shown, the Board of Review may permit a party or witness to appear telephonically during an in-person hearing. 5.2.1. In Person Hearing -- After a telephonic hearing date has been scheduled, a party may verbally or in writing request an in-person hearing.5.3. Rules of Evidence and Procedure.-- In the conduct of the hearings, neither the Board of Review nor its subordinate tribunals shall be bound by the usual common law or statutory rules of evidence or by the formal rules of procedure, except as provided for by these rules. 5.3.1. Discovery.-- There shall be no discovery in claims or cases before the Board or an Appeal Tribunal.5.3.2. Subpoenas.-- The presence of a witness or production of evidence may be obtained by the issuance of a subpoena or a subpoena duces tecum by the Board or its designee. 5.3.2.a. Request.-- A subpoena may be requested verbally or in writing from the Board or its designee.5.3.2.b. Service.-- Subpoenas may be served or accepted in any manner provided for by the rules of civil procedure with the exception that a party may serve a subpoena. Regardless of the method, service is not the responsibility of the Board.5.3.2.c. Fee.-- Subpoenaed witnesses who testify at the hearing will be paid witness fees in accordance with the guidelines of the Circuit Court of Kanawha County, West Virginia.5.3.2.d. Noncompliance.-- If a person refuses to comply with a subpoena, the Board may apply to a circuit court of West Virginia to compel production of the testimony or evidence sought.5.4. Representation.-- All representation before the Board and its subordinate tribunals must comply with the following guidelines.5.4.1. Individuals. Any claimant or employer, who is a natural person, may appear at and represent him or herself or may be represented by an attorney duly licensed or authorized to practice law in the State of West Virginia.5.4.2. Corporations. A corporate employer may be represented only by an attorney duly licensed or authorized to practice law in the State of West Virginia. However, an employee of a corporation may testify at a hearing without the presence of counsel.5.4.3. Government. A government employer, whether federal, state, or local, or the Unemployment Compensation Claims office, may be represented only by an attorney duly licensed or authorized to practice law in the State of West Virginia. However, an employee of a government employer or of the Unemployment Compensation Claims office may testify at a hearing without the presence of counsel.5.5. Representation Fees.-- In any claim where a claimant is represented by counsel, any fee charged the claimant must be approved by the Board. Such fee may be contingent or based on an hourly rate or a fixed amount. An attorney's fee shall be reasonable. 5.5.1. The factors to be considered by the Board or its designee in determining whether to approve a fee shall include the following:5.5.1.a. The time and labor required, the novelty and difficulty of the questions involved, and skill requisite to perform the legal service properly.5.5.1.b. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney.5.5.1.c. The fee customarily charged in the locality for similar legal services.5.5.1.d. The amount involved and results obtained.5.5.1.e. The time limitations imposed by the client or by the circumstances.5.5.1.f. The nature and length of the professional relationship with the client.5.5.1.g. The experience, reputation, and ability of the attorney or attorneys performing the services.5.5.1.h. Whether the fee is fixed or contingent.5.6. Initial Burden of Proof.-- The initial burden of proof shall fall as denoted below. Once this initial burden has been met by the designated party, the burden may shift between the parties as directed by the presiding official. This provision should be read and interpreted in conjunction with W. Va. Code § 21A-6-1 and § 21A-6-3. 5.6.1. Quit Without Good Cause -- Claimant.5.6.2. Quit for Personal Reasons -- Claimant.5.6.3. Quit for Educational Reasons -- Claimant.5.6.4. Discharge for Misconduct -- Employer.5.6.5. Failure to Accept Suitable Work -- Unemployment Compensation Claims Office or Employer.5.6.6. Existence of a Strike or Other Bona Fide Labor Dispute- Employer5.6.7. Existence of a lockout - Claimant5.6.8. Receipt of Other Compensation -- Unemployment Compensation Claims Office or Employer.5.6.9. Sports or Athletics -- Claimant.5.6.10. Illegal Aliens -- Unemployment Compensation Claims Office or Employer.5.6.11. Vacation -- Employer.5.6.12. Federal Benefits -- Unemployment Compensation Claims Office or Employer.5.6.13. Fraud -- Unemployment Compensation Claims Office or Employer.5.6.14. Eligibility -- Claimant.5.6.15. Other issues as determined by the Administrative Law Judge at the hearing.5.7. Continuance of Hearing - Continuances shall be granted only upon the request of a party for good cause shown. After a hearing date has been set, a party may request a continuance from the Board of Review setting forth in detail the reasons why such a continuance is necessary. The Board of Review may request documentation to be considered. Such request for a continuance must be provided to the Board of Review not less than two (2) business days prior to the hearing, except in exigent circumstances.5.8. Reconsideration - Requests or motions for reconsideration will not be considered except those involving administrative or clerical error.