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Oregon State Archives

Oregon Bulletin

October 1, 2011

Employment Department
Chapter 471

Rule Caption: Clarify definition of “good cause” for late and reopened appeals

Adm. Order No.: ED 8-2011(Temp)

Filed with Sec. of State: 8-26-2011

Certified to be Effective: 8-26-11 thru 2-18-12

Notice Publication Date:

Rules Amended: 471-040-0010, 471-040-0040, 471-040-0041, 471-041-0070

Subject: For late hearing requests, requests to reopen hearings, and late requests to reopen hearings, clarify what constitutes “good cause”. This modification will convey reasons that are acceptable for late request.

This change impacts both lower appeals hearings with the Office of Administrative Hearings as well as higher appeals hearings with the Employment Appeals Board.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-040-0010

Late Request for Hearing

Late Request for Hearing

(1) “Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(A) Failure to receive a document due to not notifying the Employment Department or Office of Administrative Hearings of an updated address while the person is claiming benefits or if the person knows, or reasonably should know, of a pending appeal;

(B) Not understanding the implications of a decision or notice when it is received.

(2) Notwithstanding section (1) of this rule, good cause for failing to file a timely request for hearing shall exist when the appellant provides satisfactory evidence that the Employment Department failed to follow its own policies with respect to providing service to a limited English proficient person, including the failure to communicate orally or in writing in a language that could be understood by the limited English proficient person upon gaining knowledge that the person needed or was entitled to such assistance.

(3) “A reasonable time,” is seven days after the circumstances that prevented a timely filing ceased to exist.

(4) The appellant shall set forth the reason(s) for filing a late request for hearing in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for the late filing, and whether the request was filed within a reasonable time.

(5) Nothing in subsection (4) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

Stat. Auth.: ORS 657

Stats. Implemented: ORS 657.875

Hist.: 1DE 150, f. & ef. 2-9-76; ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12

471-040-0040

Reopening of a Hearing

(1) After service of an administrative law judge’s written decision as set forth in ORS 657.270, an administrative law judge may reopen the hearing if the party:

(a) Requesting the reopening failed to appear at the hearing;

(b) Files in writing, within 20 days of the date of mailing of the hearing decision, a request to reopen; and

(2)”Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(B) Not understanding the implications of a decision or notice when it is received.

(3) The party requesting reopening shall set forth the reason(s) for missing the hearing in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for failing to appear at the hearing.

(4) The administrative law judge’s ruling on a request to reopen the hearing shall be in writing and mailed to the parties.

(5) The filing date for a request to reopen shall be determined under OAR 471-010-0040.

(6) The OAH will treat as a request to reopen the hearing any application for review that a party files with the Employment Appeals Board or the Employment Department, where the filing party failed to appear at the hearing that led to the decision on appeal, unless the applicant specifically states in the application that the applicant does not wish to have the case reopened. In the event that the OAH subsequently denies the request to reopen the hearing, it shall return the case to the Employment Appeals Board, which will then proceed to review the merits of the substantive decision. The original application for review shall serve as the basis for the Employment Appeals Board’s review of the merits of that decision.

(7) Nothing in subsection (3) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

(8) This rule is effective for all requests to reopen filed after the effective date of this rule.

Stat. Auth.: ORS 657

Stats. Implemented: ORS 657.280, 657.610 & 657

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 2-2004(Temp), f. 5-3-04, cert. ef. 5-4-04 thru 10-31-04; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12

471-040-0041

Late Request to Reopen

(1) The period within which a party may request reopening may be extended if the party requesting reopening:

(a) Has good cause for failing to request reopening within the time allowed; and

(b) Acts within a reasonable time.

(2)”Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(a) Good cause includes but is not limited to:

(A) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(B) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(b) Good cause does not include:

(B) Not understanding the implications of a decision or notice when it is received.

(3) “A reasonable time,” is seven days after the circumstances that prevented a timely filing ceased to exist.

(4) The party requesting reopening shall set forth the reason(s) for filing a late request to reopen in a written statement, which the Office of Administrative Hearings (OAH) shall consider in determining whether good cause exists for the late filing, and whether the party acted within a reasonable time.

(5) The filing date for a late request to reopen shall be determined under OAR 471-010-0040.

(6) Nothing in subsection (4) of this rule prevents the OAH from scheduling a hearing if in the sole judgment of the OAH testimony is required.

(7) The administrative law judge’s decision on a late request to reopen shall be in writing and mailed to the parties.

(8) This rule is effective for all late requests to reopen filed after the effective date of this rule.

Stat. Auth.: ORS 657.270, 657.875

Stats. Implemented: ORS 657.280, 657.610 & 657.875

Hist.: ED 10-2006(Temp), f. & cert. ef. 9-27-06 thru 3-21-07; ED 12-2006, f. 12-1-06, cert. ef. 12-3-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12

471-041-0070

Late Application for Review

(1) An application for review is timely if it is filed within 20 days of the date that OAH mailed the hearing decision sought to be reviewed. EAB shall dismiss a late application for review, unless the filing period is extended in accordance with this rule.

(2) The filing period may be extended a reasonable time upon a showing of good cause as provided by ORS 657.875.

(a)”Good cause” exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an applicant’s reasonable control.

(A) Good cause includes but is not limited to:

(i) Failure to receive a document because the Employment Department or Office of Administrative hearings mailed it to an incorrect address despite having the correct address;

(ii) For telephone hearings, unanticipated, and not reasonably foreseeable, loss of telephone service.

(B) Good cause does not include:

(i) Failure to receive a document due to not notifying the Employment Department or Office of Administrative Hearings of an updated address while the person is claiming benefits or if the person knows, or reasonably should know, of a pending appeal;

(ii) Not understanding the implications of a decision or notice when it is received.

(b) “A reasonable time” is seven days after the circumstances that prevented timely filing ceased to exist.

(3) The applicant shall include with the application for review a written statement describing the circumstances that prevented a timely filing. Nothing in this rule prevents EAB from referring the matter to OAH for a hearing if in EAB’s discretion, a hearing is necessary to EAB’s determination under section (2).

Stat. Auth.: ORS 183, 657.610 & 657.685

Stats. Implemented: ORS 657.685(6)

Hist.: EAB 1-1983(Temp), f. & ef. 9-14-83; EAB 1-1984, f. & ef. 3-20-84; ED 3-1993, f. & cert. ef. 10-1-93; ED 4-1993, f. & cert. ef. 11-22-93; Renumbered from 472-010-0007; ED 1-1995, f. & cert. ef. 1-9-95; Administrative correction 6-2-99; ED 5-1999, f. 7-28-99, cert. ef. 8-1-99; ED 11-2006, f. 10-26-06, cert. ef. 10-29-06; ED 8-2011(Temp), f. & cert. ef. 8-26-11 thru 2-18-12

Rule Caption: Suspend rule which modified “good cause” definition for higher order appeals.

Adm. Order No.: ED 9-2011(Temp)

Filed with Sec. of State: 8-30-2011

Certified to be Effective: 8-30-11 thru 2-18-12

Notice Publication Date:

Rules Amended: 471-041-0070

Rules Suspended: 471-041-0070(T)

Subject: Suspend temporary rule which modified “good cause” definition for higher order appeals. Change was meant to impact first level appeals only.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-041-0070

Late Application for Review

(2) The filing period may be extended a reasonable time upon a showing of good cause as provided by ORS 657.875.

(a) “Good cause” exists when the applicant provides satisfactory evidence that factors or circumstances beyond the applicant’s reasonable control prevented timely filing.

(b) “A reasonable time” is seven days after the circumstances that prevented timely filing ceased to exist.

Stat. Auth.: ORS 183, 657.610 & 657.685

Stats. Implemented: ORS 657.685(6)

Rule Caption: Updates due to legislative changes; clarifies eligibility for individuals in training.

Adm. Order No.: ED 10-2011(Temp)

Filed with Sec. of State: 9-13-2011

Certified to be Effective: 9-13-11 thru 3-9-12

Notice Publication Date:

Rules Amended: 471-030-0080

Subject: The proposed amendments to OAR 471-030-0080 make the following changes:

• Revise “Professional Technical Training” to “Career and Technical Training” as a result of changes in HB 2109, which passed in the 2009 Legislative Session.

• Defines when the Director may waive the requirement that an individual be a full time student to be approved for training. This change removes the reference to ORS 657.337, which was repealed by HB 2203 in the 2009 Legislative Session.

• Clarify eligibility requirements for unemployment benefits to individuals who are in approved training. Individuals who do not attend their approved training during the week are required to meet regular unemployment insurance eligibility requirements for those weeks.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-030-0080

Career and Technical Training

(1) Career and technical training, as defined in ORS 657.335, shall not be approved by the Director unless the public or private institution, school, or agency offering such program is certified or licensed by the Oregon State Board of Education, the Superintendent of Public Instruction, the Oregon Workforce Investment Board, or another Oregon State agency authorized to grant such certification or license or an equivalent state agency in the state where the training is to be provided.

(2) Career and technical training shall not be approved by the Director if the Director finds that the planned curriculum of classes and course activity is less than the equivalent of full-time student status as defined by the training provider. The Director may waive this requirement if:

(a) Classes needed to complete the training are not available to the individual; or

(b) The number of classes needed to complete the training is less than the equivalent of a full-time schedule.

(3) To receive benefits for any week during career and technical training, a dislocated worker who is otherwise eligible for unemployment insurance benefits must:

(a) Submit a written application for approval of career and technical training on forms prescribed or approved for such purpose by the Director, with the Employment Department Benefits Section — UI Training Programs Unit within 90 days of:

(A) Certification as a dislocated worker; or

(B) Termination from the dislocating employment; or

(b) Submit to the Employment Department a timely claim for such week in accordance with OAR 471-030-0045(4) which establishes the individual:

(A) Was physically present in the individual’s labor market as defined in OAR 471-030-0036(6); and

(B) Attended and participated in all scheduled classes for each week of approved career and technical training; or

(C) If the individual failed to attend or participate in all scheduled classes during the week, was able and available for work; and

(c) At the end of each term provide to the Employment Department grades or completion of program documentation from the training facility which certifies that the claimant was satisfactorily pursuing the approved career and technical training; and

(4) Decisions of the Director to approve or disapprove an application for course approval or to discontinue such approval for one or more weeks during career and technical training or to approve or deny supplemental benefits under the provisions of ORS 657.335 through 657.360 shall be in writing, shall set forth the reasons therefore, and shall be served upon the claimant by mailing to the claimant’s last known address of record with the Employment Department.

(5) As used in ORS 657.335(1):

(a) “Eligible dislocated workers” includes:

(A) For purposes of ORS 657.345(1), any worker attending training financed wholly or in part, or directly delivered by, a recipient or subrecipient administering Title 1B of the Workforce Investment Act of 1998 (P.L. 105-220).

(B) For purposes of ORS 657.345(2), any worker identified as dislocated by the Employment Department under ORS 657.335(1).

(b) “Unlikely to return to their previous industry or occupation” includes the following:

(A) The individual has been identified as meeting the Worker Profiling Program participation threshold developed by the Employment Department, or

(B) The individual has been permanently separated from an employer in an occupation identified as declining by the Employment Department in that geographic area in which the claimant resides, or

(C) The individual has been evaluated and referred to training by a vocational rehabilitation provider, including but not limited to Vocational Rehabilitation Division, Workers Compensation Division, or a private insurance carrier.

(c) “Long-term unemployed” means unemployed from the dislocated occupation for at least 15 of the last 26 weeks or for at least 8 consecutive weeks immediately prior to application (including survival jobs during such period).

(6) In applying the provisions of ORS 657.340, the Director may approve a program of instruction, including transfer credit programs of instruction given at community colleges, leading toward a baccalaureate or higher degree or training that has for its purpose the preparation of persons for employment in occupations which require a baccalaureate or higher degree from institutions of higher education if:

(a) The individual does not have significant transferable skills for other occupations in the statewide labor market;

(b) Unless previously approved in accordance with the provisions of Title IB of the Workforce Investment Act of 1998 (P.L. 105-220), the individual is within 48 quarter credit hours (or the semester equivalent) from completing the baccalaureate or higher degree; and

(7) As used in ORS 657.340(2), “attendance in career and technical training” means the period of time beginning with the starting date of the training and ends with satisfactory completion of the training program. The period of time defined in this section includes customary academic recesses for holidays and between academic terms but does not include the customary academic summer recess. For purposes of applying ORS 657.340(2), an individual may be determined not to be in “attendance in career and technical training” as defined in this section if the individual fails to demonstrate satisfactory progress and attendance as defined in section (3) of this rule.

(8) As used in ORS 657.340(3), “terms and conditions” includes “benefit year” as defined in ORS 657.010(3). In applying the provisions of ORS 657.340(3), the benefit year of an eligible dislocated worker may be extended, whether or not the benefit year has expired, if the eligible dislocated worker has not filed a subsequent initial claim establishing a new benefit year.

(9) The determination that an individual meets the definition of dislocated worker may be made by the Employment Department for purposes of paying benefits under ORS 657.335 to 657.360.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.335 - 657.360

Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 1-1983(Temp), f. & ef. 3-9-83; 1DE 2-1983, f. & ef. 8-12-83; ED 1-1991, f. & cert. ef. 4-1-91; ED 4-1991(Temp), f. & cert. ef. 12-30-91; ED 3-1992, f. & cert. ef. 6-29-92; ED 4-1992(Temp), f. & cert. ef. 10-19-92; ED 1-1993, f. & cert. ef. 3-22-93; ED 4-1994, f. & cert. ef. 9-2-94; ED 1-1996, f. 4-24-96, cert. ef. 4-29-96; ED 5-2000, f. 10-6-00, cert. ef. 10-8-00 thru 4-6-01; ED 5-2001(Temp), f. 4-6-01, cert. ef. 4-7-01 thru 10-4-01; ED 6-2001, f. 4-20-01, cert. ef. 4-22-01; ED 8-2002, f. 11-22-02 cert. ef. 11-24-02; ED 11-2003, f. 7-25-03, cert. ef. 7-27-03; ED 10-2005, f. 12-29-05, cert. ef. 1-1-06; ED 11-2008, f. & cert. ef. 9-16-08; ED 10-2011(Temp), f. & cert. ef. 9-13-11 thru 3-9-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.