RULES AND REGULATIONSRULES AND REGULATIONS
Title 34--LABOR AND INDUSTRY
UNEMPLOYMENT COMPENSATION
BOARD OF REVIEW
[34 PA. CODE CH. 101]
General Requirements
[27 Pa.B. 6809] The Unemployment Compensation Board of Review (Board) amends Chapter 101 (relating to general requirements) under the authority of sections 203 and 505 of the Unemployment Compensation Law (law) (43 P. S. §§ 763(d) and 825). These regulations provide guidelines and standards for scheduling and conducting appeal hearings in whole, or in part, by means of telephone.
Purpose of Amendments
The former regulations governing hearings conducted by means of telephone (Subchapter E) expired on April 8, 1994, but telephone hearings continued to be conducted when the parties agreed to be bound by the expired regulations. In addition, minor problems of interpretation were noted in the former regulations. These problems of interpretation stemmed primarily from minor ambiguities in the regulations that occasionally caused difficulty in application for the parties or the tribunal. These telephone amendments are designed to address these problems by providing clarification and conformity to the Pennsylvania Code & Bulletin Style Manual, and, primarily, by improving organization to ensure that telephone hearings are conducted in a uniform manner. The ultimate purpose is to provide fundamental fairness to all parties involved in the appeal process.
Comment and Response Summary
Notice of proposed rulemaking was published at 26 Pa.B. 1141 (March 16, 1996) and afforded a 30-day comment period. Written public comments were received by the Board during the comment period from Carolyn L. Carter, Esquire, of Legal Services, Inc., Lisa Sauder, Esquire, representing various Employment and Security Bureaus of the Department of Labor and Industry (Department), Lea S. Judson (Judson), Irwin W. Aronson on behalf of the Pennsylvania AFL-CIO (AFL-CIO) and Sharon Dietrich, Esquire, of Community Legal Services (CLS). Comments from several unemployment compensation referees (referees) were received outside of the comment period and these were also considered by the Board and the Independent Regulatory Review Commission (IRRC).
The major concerns of the commentators included: (1) out-of-State parties would be scheduled for testimony by telephone even if they were less than 50 miles from the hearing location; (2) the 14-day requirement of notice of a telephone hearing was unnecessarily long; (3) providing stenographic recording of testimony in the event a party objected to their testimony being tape recorded was unnecessary; (4) representation of parties by telephone without approval would be abused by the parties and difficult for the tribunal to administer; (5) the elimination of the sunset and data maintenance provisions might lead to unremedied abuses; and (6) the use of the word ''normally'' in § 101.127 (relating to purpose and scope) could lead to more telephone hearings.
The final-form regulations were submitted to the standing committees, IRRC and the commentators on or about January 28, 1997. In response to these final-form regulations, comments were received from Carolyn Carter, Lisa Sauder, Lea Judson, Sharon Dietrich and Robert E. Belfanti, Jr. The Board then conferred with IRRC on the points raised by it and the commentators. The major concerns of the commentators for the final-form regulations included: (1) the 7-day requirement of notice of a telephone hearing was too short; and (2) providing an opportunity to waive receipt of the telephone regulations or consent to holding the hearing would be unfair to parties unfamilar with the telephone hearings.
§ 101.127(a)
The AFL-CIO and IRRC commented that the word ''normally'' should be deleted from the regulation because there should be an unqualified, regulatory preference for in-person testimony. The AFL-CIO also commented that since the word ''compelling'' was deleted from the proposed amendments, the word ''normally'' should also be removed to balance the equation.
The Board retains the word ''normally'' in this subsection for several reasons as follows: (1) the use of the word ''normally'' is consistent with the expired regulation and the Board is not aware of any problems associated with its use; (2) the word ''normally'' is neither a reciprocal nor a balance to the word ''compelling,'' which has been deleted from the regulation; (3) in-person testimony is normally preferable to telephone testimony, but there can be circumstances, such as those addressed by the regulations, when telephone testimony is entirely appropriate; and (4) these are procedural regulations and rigid policy statements are neither consistent with their purpose nor necessary to their implementation and enforcement.
§ 101.128(a) (relating to scheduling of telephone testimony)
Judson, the AFL-CIO, the CLS and IRRC commented on this subsection. Although very similar to the sunsetted regulation at § 101.122(a), there was concern that the 50-mile limit would not be applied to parties or witnesses that were located just across the State line, and that these parties or witnesses would be permitted to testify by telephone solely because they were located outside of this Commonwealth.
Although the Board does not believe that this ''situation'' has occurred, or would occur in the future, it has elected to add clarifying language to this subsection. It now provides: ''The tribunal may schedule, on its own motion, testimony by telephone of a party or witness when it appears from the record that the party or witness is located at least 50 miles from the location at which the tribunal will conduct the hearing, without regard to State boundaries.''
The Board believes that its language is less complex than that suggested by IRRC, yet accomplishes the intent behind the commentators' concern.
The CLS and IRRC also suggested that the Board amend § 101.86 (relating to appeal hearings) to make the regulations more internally consistent. Section 101.86 addresses appeal hearings in general following an appeal from a decision of the Department (Job Center). The Board elects to make no changes to § 101.86 for the following reasons: (1) the Board is reluctant to make unnecessary changes to any regulations outside of those already examined in this rulemaking process; (2) the Board perceives no inconsistency between §§ 101.86 and 101.128(a). Section 101.86 applies to hearings in general. However, if any of the criteria in § 101.128 are inconsistent with § 101.86, the former will control. Therefore, there is no inconsistency between these regulations (See § 101.127(b)); and (3) the Board believes that the language suggested by the CLS would be inconsistent with section 505a of the law (43 P. S. § 825.1), which governs the place of the hearing.
§ 101.128(b)(2)
Judson, the AFL-CIO, some referees and IRRC commented on subsection (b)(2). The major concern of the commentators appears to be that any employment, transportation or medical reason cited by a party or witness would be compelling.
In the final-form regulations submitted by the Board, it amended this subsection to address this perceived ambiguity.
In response to the concerns regarding ambiguity, the Board amended paragraph (2). It now states: ''The party or witness is reasonably unable to testify in person due to a compelling employment, transportation, or health reason, or other compelling problem.'' By modifying the specific problems with the word compelling and ''other problems'' with the word compelling, it is now clear that any problem must be compelling. The other minor changes to the language were for grammatical purposes.
§ 101.128(c)
Commentators Judson and the AFL-CIO suggested that this subsection requires clarifying language to indicate that only those parties or witnesses scheduled to testify by telephone or identified prior to the taking of testimony may testify by telephone.
The Board added language to clarify this subsection in response to this comment. It now provides: ''Only a party or witness scheduled to testify by telephone, or identified prior to the taking of testimony in accordance with § 101.131(f) (relating to conduct of a telephone hearing), may testify by telephone, and the testimony of each other party or witness shall be received in person.''
§ 101.128(d)
This was formerly § 101.122(d). The CLS commented that it should be improved and supplemented because in its past experience, the regulation was seldom followed by the referees.
In response, the Board has revised this subsection, utilizing a portion of CLS' proposed language. The subsection now requires the tribunal to promptly rule on a request for telephone testimony after a reasonable attempt has been made to inform the parties of the request, the basis for the request, the regulations under which telephone testimony can be taken, and the right of a party to object. This information and the referee's ruling must also be documented in the record.
§ 101.129(a) (relating to procedures subsequent to scheduling)
The AFL-CIO commented on the changes in wording of this subsection. Although it does not find the change of the word ''shall'' to ''will'' objectionable, it is concerned that the word ''only'' has been deleted. The Board has not made any changes to this subsection in light of this comment, because it does not believe that deleting the word ''only'' has changed the meaning or purpose of this subsection.
§ 101.130(a) (relating to notice of testimony by telephone and use of documents).
Varying comments were received concerning this subsection. Judson commented that she strongly supports this subsection as proposed. The AFL-CIO commented that the requirement in paragraph (2) is superfluous. Some referees and IRRC commented that the 14-day notice of hearing requirement is too long and unduly delays hearings, and suggested a shorter notice period.
After final-form submission, many commentors expressed the opinion that a 7-day notice period was too short, especially because the regulations require that parties submitting documents must do so 5 days before the hearing.
First, addressing the AFL-CIO's comment, the Board does not agree that having the hearing notice indicate the names of counsel, authorized agents, parties, and witnesses, if known, who are scheduled to appear or testify by telephone is superfluous. Informing parties of information that is known is beneficial to all involved and the Board declines to eliminate this part of the subsection.
With regard to the comments concerning the length of the notice period, after considering the arguments for a 14-day notice period and the arguments for a shorter notice period, the Board has chosen to retain the 14-day notice period as proposed.
Although the Board believes that a shorter notice period could be workable in most cases, after reviewing comments and speaking with IRRC, it realizes that in a small number of instances, 14 days may be needed for mailing the notice. To ensure that parties in all cases receive adequate notice, the Board has reluctantly reinstated the 14-day notice period.
In addition to these comments, some of the referees also indicated that identifying all relevant time zones could prove problematic in that errors can occur in attempting to identify times in other states.
The Board has retained this provision in the regulation but, at the suggestion of IRRC, has rewritten it to require that the hearing notice indicate ''the date and time of the hearing in prevailing Eastern time.'' This revision has been made to address the referees' concerns and to ensure that there will be less confusion on the part of parties and witnesses as to what time they will be contacted to testify by telephone.
The Board has also added two new provisions to this subsection at the suggestion of IRRC. Section 101.130(a)(3), revised since the first submission of final-form regulations, indicates that the notice of hearing will indicate the deadline by which the tribunal is to receive documents, if any, from all parties. Although this information has been a part of the notice of hearing in the past, it will now be a required part of the notice of hearing. The change in language from the first final-form submission is for clarification purposes.
Section 101.130(a)(4) indicates that the notice of hearing will state that the hearing will be tape recorded. This will ensure that all parties will be aware that their telephone testimony will be recorded, before the hearing begins. The Board has declined to include IRRC's suggestion that the regulation should include a statement that a written transcript would be prepared, because a written transcript of a hearing is prepared only if a timely appeal is taken from the referee's decision.
§ 101.130(b)
Judson commented that she strongly supported this subsection as written in the proposed regulations. The AFL-CIO commented that, as written, this subsection provides the referees with discretion to exclude testimony and evidence from consideration if a copy of this subchapter has not been provided to the parties or their counsel/agent, if known. It does not, however, provide any standards by which this discretion is to be exercised.
In an attempt to remedy this problem, the Board had rewritten the second sentence, stating: ''If a copy of this subchapter has not been provided to the parties and/or their counsel or authorized agent, if known, in advance of the hearing, testimony and evidence given or taken at the hearing will be excluded from consideration, unless the parties consent or the issue has been waived, and a new hearing in compliance with this subchapter will be scheduled.'' This final form language gave rise to comments that conveyed a concern that uninformed parties would waive rights of which they were not aware. In an effort to address these concerns, the Board has rewritten this section, which now states: ''When testimony by telephone is to be taken, the tribunal will send a copy of this subchapter with the notice of hearing. If the tribunal finds that an unrepresented party has not received a copy of this subchapter, a copy will be provided and the hearing will be rescheduled.''
This language will ensure that the unrepresented parties the commentators are concerned about will not be permitted to waive any rights or give uninformed consent. Those unrepresented parties will be provided a copy of the regulations and another hearing will be scheduled.
§ 101.130(c)
Judson commented that she strongly supports this subsection. Legal Services, Inc. questioned whether ''in advance of the beginning of the hearing'' was intended to mean the same as ''before the beginning of testimony'' found in § 101.131(f) (relating to conduct of a telephone hearing), and whether these provisions should be parallel.
''[I]n advance of the beginning of the hearing'' is not intended to mean the same thing as ''before the beginning of testimony'' found in § 101.131(f). The purpose of this subsection, and the language requiring that the parties intending to provide telephone testimony supply the tribunal with those names, locations and telephone numbers ''in advance of the beginning of the hearing,'' is to ensure that the referee will have the names and telephone numbers necessary to make all of the required telephone connections at or shortly before the hearing is scheduled to begin. Without this information in advance, the referee will not know whom to contact, important testimony may be missed, and unnecessary delays may result.
IRRC suggested that this language is intended to prevent surprise and possible prejudice. This is not the case. This position is more accurate in describing the reasoning for the language used in § 101.131(f) See explanation for § 101.131(f).
IRRC also suggested that a minimum time period should be set in advance of the beginning of the hearing in which parties must supply this information. The Board declines to create any arbitrary minimum time period. There are few, if any, problems of parties failing to supply the needed information in reasonable time. Setting an arbitrary time period may create problems where none exist. Therefore, the Board makes no changes to this subsection. See also comments to § 101.131(f).
§ 101.130(d)
Judson and the AFL-CIO commented on this subsection. The AFL-CIO noted that the subsection should state that copies of the documents upon which the initial determination was based should also be sent to the parties' counsel or authorized agent, if known. The Board agrees and has added the necessary language to the end of the second sentence of the subsection. This makes this subsection consistent with the other subsections in this subchapter that require that notification or documents be sent to counsel or authorized agents, if known.
Judson commented that this subsection should clarify that copies of the documents will accompany the notice of hearing whether a party is appearing in person or by telephone.
The subsection provides that copies of the documents will accompany the notices of hearing to all parties. The Board is of the opinion that ''all parties'' clearly indicates that, regardless of whether parties will appear by telephone or in person, they will receive the documents. Additional language would be redundant.
§ 101.130(e)
The CLS, Judson, the AFL-CIO and IRRC commented on this subsection.
The AFL-CIO commented that by requiring all parties appearing in person to provide documents before the hearing cured a fundamental unfairness. Judson concurred.
The CLS commented that it found the subsection to be confusing as to whether it covers hearing exhibits. The CLS also commented that the subsection is unfair for persons appearing in person to be required to provide documents in advance of the hearing. During a discussion with IRRC after the first final-form submission, it also expressed concern about this language.
Addressing both the comment that the subsection is confusing and IRRC's concerns, the Board has again reworded the regulation in an attempt to clarify and implement its intent. It now states: ''When any testimony will be given from or with the aid of a document not previously distributed to the parties by the tribunal, the party expecting to introduce the document shall deliver it to the tribunal, and the tribunal shall distribute it to each other party and, if known, counsel or authorized agent, before or at the beginning of the testimony. The tribunal may require that the documents be delivered up to 5 days in advance of the hearing.''
Addressing the fairness of the requirement that all parties be required to provide documents in advance of the hearing, the Board is of the opinion that requiring only the party testifying by telephone to provide documents early would unfairly prejudice that party by denying it access to the in-person party's documents. Clearly, this is not the intent of the telephone regulations.
The Board has provided a notice provision in § 101.130(a), at the suggestion of IRRC, so that all parties will be aware of the document distribution requirement.
The Board has also changed the word ''request'' in the proposed subsection, to the word ''require,'' which is the word used in sunsetted § 101.124(d). The Board has changed this word to give the tribunal more authority to ensure that the documents are delivered for distribution to all of the parties.
§ 101.131(a)
Commentator Judson suggested additional language for improved clarity. The Board agrees with IRRC that the suggested, additional language is unnecessary and redundant. Therefore, no changes have been made to this subsection.
§ 101.131(b)
The AFL-CIO commented, and IRRC agreed, that in this subsection, if an objection to telephone testimony is sustained, it would be inappropriate to allow another telephone hearing to take place after sustaining the original objection. The Board does not agree with this assessment for the following reasons.
Just because an objection to telephone testimony is sustained, the scheduling of another telephone hearing is not automatically precluded. There are many possible objections. The facts or defects leading to those objections could well be cured and a new telephone hearing scheduled. Examples include: (1) If a party does not receive notice in the required time period, when brought to the attention of the tribunal, a new notice can be sent within the required time; (2) If documents to be used at the hearing were not properly distributed before the hearing, the documents can then be distributed properly. If the problem giving rise to the objection cannot be cured, the regulation, as written, does provide that the hearing can be scheduled in person.
The Board has added, as was suggested in IRRC's comments, the language ''in accordance with this subchapter,'' at the end of this subsection. This was added for clarification purposes.
§ 101.131(c)
Some referees commented that this subsection is time-consuming and should be the subject of an internal procedure.
The purpose of this subsection is to create a clear record of the attempts by the tribunal to complete the telephone contact in an effort to decrease the number of remand hearings due to parties alleging that they were available for the hearing, but did not receive a call from the tribunal.
The Board declines to eliminate this provision from the regulations in light of its stated purpose.
§ 101.131(d)
Comments to this subsection were received from the AFL-CIO, Judson, CLS, the referees and IRRC. The comments addressed the provision for stenographic recording of the hearing if a party or witness objects to having its testimony tape recorded and the objection is sustained by the tribunal, and the fact that the parties and witnesses do not know that their testimony will be tape recorded until the hearing starts since the hearing notice does not provide the information.
Addressing the comment concerning the notice of hearing, the Board has provided in § 101.130(a) that the notice of hearing will now indicate that the hearing will be tape recorded.
IRRC also suggested that the Board retain only the first two proposed sentences of this subsection and delete the remainder, which addresses the tribunal's response to objections and provides stenographic recording as an alternative to tape recording. The Board is in agreement with IRRC's comments concerning the Commonwealth's wiretap statute and its inapplicability to the taping of telephone testimony. Therefore, the Board will delete all but the first two sentences of this proposed subsection.
§ 101.131(f)
Comments were received from Legal Services, Inc., the Department, Judson and the AFL-CIO. Judson supported this subsection and Legal Services, Inc.'s comment was the same as was discussed in § 101.130(c). For the reasons stated therein, the Board declines language changes.
The Department commented that this subsection, as proposed, precludes the possibility of a party reacting to facts provided at the hearing and obtaining a witness for rebuttal.
The hearing notice contains instructions to the parties that they should produce all witnesses with firsthand testimony. In the event that facts of which a party was not aware first surface at a hearing, and the opposing party has not brought those witnesses to rebut the facts, the opposing party may request a continuance to provide or subpoena those witnesses. If the referee denies a continuance and that party receives an unfavorable decision, the aggrieved party can request a remand hearing from the Board. This is the same remedy available for in-person hearings.
For these reasons, the Board declines to make any exceptions to this regulation as suggested by this commentator.
The AFL-CIO expressed concerns that there is no reference to counsel or representatives. This subsection discusses only witnesses and parties, because it addresses situations where testimony is taken from unidentified witnesses or parties. Since counsel and representatives do not provide testimony, this subsection does not apply to them.
§ 101.131(g)
Judson and the AFL-CIO both asked if, in the absence of any objection from a party, the tribunal would fail to exclude testimony taken in violation of this subsection.
The Board has changed the subsection for clarification. It now states: ''No person may prompt or direct the testimony of a witness testifying by telephone. Testimony taken or given in violation of this subsection may be excluded from consideration, with or without an objection from a party.''
This change has been made so that it is clear that the tribunal may exclude testimony in violation of this subsection even without an objection from a party.
§ 101.131(h)
The AFL-CIO commented that if testimony taken from a document in violation of the regulations is excluded from consideration, the document from which the testimony is taken should also be excluded, but that the proposed regulation does not so state.
To remedy this deficiency, the Board has added ''as will be the document'' to the end of the second sentence of this subsection. The subsection now provides that the document from which excluded testimony was taken will itself also be excluded. It is not the intent to exclude otherwise admissible documents.
In addition, the Board, has removed the words ''or writing'' from this subsection to avoid redundancy.
§ 101.131(i)
In response to the proposed regulations, the AFL-CIO and the Department commented that this subsection seems to require all witnesses to take an oath prior to providing testimony, and that this may prove troublesome to persons who will not or are not permitted to take oaths. In addition, IRRC questioned the use of the word ''special.''
In response to the submission of final-form regulations, the Department raised the issue that the truthfulness of the testimony should be included in the regulations.
After reviewing the subsection and the various comments, the subsection now states: ''The oath or affirmation administered to parties or witnesses testifying by telephone shall indicate that the parties or witnesses will not testify from documents that are not in the record and that their testimony will not be prompted or directed during the hearing by any other person.''
An oath or affirmation is administered by the referee at the beginning of every hearing under sections 201, 203 and 506 of the law (43 P. S. §§ 761, 763 and 826). In the instance of a telephone hearing, in addition to the oath or affirmation always being administered, the referee will now include language that the parties or witnesses will not testify from documents not in the record and will not have their testimony prompted or directed by another person. This additional language is to emphasize the restrictions on anyone testifying by telephone and to help ensure that they will comply with the restrictions.
The change in language from the first final-form submission has occurred because, after much consideration, the Board concluded that it was very reluctant to require people to swear or affirm under oath that they would comply with procedural regulations that are subject to interpretation. The new language now requires people to specifically swear or affirm that they will follow these two specific requirements while testifying by telephone.
In response to IRRC's suggestion that the word ''special'' be deleted, the Board has done so as it does not find the word ''special'' necessary.
In response to the comment that some people cannot or will not take an oath, the words ''or affirmation'' have been added.
In response to the comment that the truthfulness of testimony should be included, the Board again declines to include that in this subsection. The oath administered at every hearing includes a provision that the witnesses will tell the truth. This specific subsection only addresses what needs to be added in the case of a telephone hearing. To add a truthfulness provision would be redundant.
§ 101.132 (relating to representation by telephone)
The AFL-CIO, Judson, CLS, the referees and IRRC were concerned that allowing representation by telephone with no restrictions and for the convenience of the representatives might allow abuse of the use of the telephone hearings for representation, increase costs, increase delays in holding hearings, cause more disruptions and unduly burden the referees in the scheduling and conducting of telephone hearings.
In response to these concerns, the Board has deleted proposed § 101.132 in its entirety, and has replaced it with sunsetted § 101.122(f), which states: ''The counsel or authorized agent of a party may appear at a hearing by telephone, with the approval of the tribunal.'' Thus, approval of the tribunal will be required before a party is permitted to be represented by telephone.
§ 101.133 (relating to data maintenance requirement)
The CLS commented that it opposed the elimination of the data maintenance requirement and the sunset provision because of the potential for abuses in telephone hearings and because of the revisions in the proposed amendments.
IRRC agreed that the Board should continue to maintain data concerning telephone hearings, but stated that it believed the sunset provision to be unnecessary given the fact that these regulations have worked reasonably well in the past and are now being fine-tuned.
In response to IRRC's comments, the Board has added § 101.133 to the final-form regulations. This added section requires the Board to compile and maintain data concerning telephone hearings. The mechanisms for this data gathering are already in place. Nevertheless, the Board rejects the assumption that abuse will occur absent there being regulatory checks in place.
Production of documents under subpoena in a telephone hearing.
The AFL-CIO commented that the regulations do not address the situation where documents are subpoenaed through a subpoena duces tecum, and how these documents should be distributed when a telephone hearing has been scheduled. The AFL-CIO suggested that a regulation is needed to address this situation. IRRC believed the AFL-CIO's comment had merit.
The Board declines to add a regulation addressing this comment for several reasons. First, the Board is aware of no more than a few instances where this situation has presented a problem. Second, in response to those few instances, administrative steps were taken to cure the problem, that is, including typed instructions on the subpoena itself informing the parties and witnesses that the subpoenaed documents must be delivered to the tribunal in advance of the hearing, for distribution to all parties. It is the Board's opinion that these administrative steps have cured this minor problem and a regulation is not necessary. Regulations that address every potential eventuality would be cumbersome.
Who is Affected by the Final-Form Regulations
Unemployment compensation claimants, employers and their respective representatives (attorneys, paralegals, union representatives, tax consultants, and the like), the Department, and witnesses who participate in appeal hearings where testimony or representation will occur by means of a telephone will be affected. Telephone hearings constitute approximately 6.5% of all hearings conducted.
The final-form regulations will ensure that parties involved in a hearing where testimony is received by means of a telephone will have a fair hearing.
Cost and Paperwork Requirement
There will be negligible cost to the agency to revise the existing regulations and a small number of forms. There will be no costs to local government, the private sector or the general public. Parties who appear by telephone can potentially save money in travel costs and time because their presence at a central location will not always be required.
Sunset Date
The effectiveness of the amendments will be reviewed periodically by the Board. Thus, no sunset date is necessary.
Contact Persons
The contact persons are Clifford F. Blaze, Esq. (717) 783-1232 or Linda S. Lloyd, Esq. (717) 787-8510, Room 1623 Labor and Industry Building Seventh and Forster Streets, Harrisburg, PA 17121.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of the notice of proposed rulemaking, published at 26 Pa.B. 1144 to IRRC and the Chairperson of the House Labor Relations Committee and the Senate Labor and Industry Committee for review and comment. In compliance with section 5 (b.a) of the Regulatory Review Act, the Board also provided and the Committees with copies of the comments received.
In preparing the final-form regulations, the Board has considered all comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House and Senate Committees on November 20, 1997. IRRC met on November 20, 1997, and approved the regulations in accordance with section 5(c) of the Regulatory Review Act.
Order
The Board orders that:
(a) The regulations of the Board, 34 Pa. Code Chapter 101, are amended by deleting §§ 101.121--101.126 and by adding §§ 101.127--101.133 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) This order and Annex A shall be certified and deposited with the legislative Reference Bureau as required by law.
(d) This order and Annex A shall take effect upon publication in the Pennsylvania Bulletin.
WILLIAM A. HAWKINS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6385 (December 6, 1997).)
Fiscal Note: Fiscal Note 12-43 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VI. UNEMPLOYMENT COMPENSATION
CHAPTER 101. GENERAL REQUIREMENTS
Subchapter E. TELEPHONE HEARINGS §§ 101.121--101.126. (Reserved).
§ 101.127. Purpose and scope.
(a) In-person testimony is normally preferable to testimony by telephone; however, there can be reasons to justify receiving testimony by telephone. This subchapter is promulgated to provide the conditions under which testimony by telephone will be scheduled and received, to safeguard the due process rights of the parties, and to ensure that testimony by telephone is received under uniformly applied rules. Testimony by telephone may be received only if specifically authorized by this subchapter.
(b) When the general rules of this chapter conflict with this subchapter, this subchapter controls.
§ 101.128. Scheduling of telephone testimony.
(a) The tribunal may schedule, on its own motion, testimony by telephone of a party or witness when it appears from the record that the party or witness is located at least 50 miles from the location at which the tribunal will conduct the hearing, without regard to State boundaries.
(b) The tribunal may schedule testimony by telephone of a party or witness, at the request of one or more parties, when one of the following applies:
(1) The parties consent to the receipt of testimony by telephone.
(2) The party or witness is reasonably unable to testify in person due to a compelling employment, transportation, or health reason, or other compelling problem.
(c) Only a party or witness scheduled to testify by telephone, or identified prior to the taking of testimony in accordance with § 101.131(f) (relating to conduct of a telephone hearing), may testify by telephone, and the testimony of each other party or witness shall be received in person.
(d) The tribunal will promptly rule on a request that testimony be taken by telephone after a reasonable attempt has been made to inform the parties of the request, the basis for the request, the regulations under which telephone testimony can be taken, and the right of a party to object. The basis for the request, the position of the parties, if known, and the ruling will be documented on the record.
(e) A party or witness scheduled to testify by telephone will be permitted to testify in person.
§ 101.129. Procedures subsequent to scheduling.
(a) If a party moves to withdraw consent to the receipt of testimony by telephone prior to the taking of testimony, the tribunal will allow the withdrawal if it is found that the consent was not freely and knowingly given.
(b) An objection to the receipt of testimony by telephone shall set forth the reasons in support thereof and shall be promptly communicated to the tribunal, but may not be asserted subsequent to the taking of testimony.
(c) The tribunal will promptly rule on objections to testimony by telephone after a reasonable attempt to obtain the position of the other party. The basis for the objection, the position of the other party, if known, and the ruling will be documented on the record.
§ 101.130. Notice of testimony by telephone and use of documents.
(a) When testimony by telephone is to be taken, the tribunal will mail the notice of hearing to the parties and, if known, to their counsel or authorized agent at least 14 days in advance of the hearing. The hearing notice will indicate:
(1) The date and time of the hearing in prevailing Eastern time.
(2) The names of counsel, authorized agent, parties, and witnesses, if known, who are scheduled to appear or testify by telephone.
(3) The deadline by which the tribunal is to receive documents, if any, from all parties.
(4) The hearing will be tape recorded.
(b) When testimony by telephone is to be taken, the tribunal will send a copy of this subchapter with the notice of hearing. If the tribunal finds that an unrepresented party has not received a copy of this subchapter, a copy will be provided and the hearing will be rescheduled.
(c) A party intending to testify, to offer the testimony of witnesses, or to be represented by telephone, shall, in advance of the beginning of the hearing, supply the tribunal with the name, location and telephone number of the persons who will so appear.
(d) When scheduling a telephone hearing, the tribunal will enclose with the notice of hearing copies of the documents upon which the initial determination was based. These copies will accompany the notices of hearing to all parties, and their counsel or authorized agent, if known.
(e) When any testimony will be given from or with the aid of a document not previously distributed to the parties by the tribunal, the party expecting to introduce the document shall deliver it to the tribunal, and the tribunal shall distribute it to each other party and, if known, counsel or authorized agent before or at the beginning of the testimony. The tribunal may require that the documents be delivered up to 5 days in advance of the hearing. See § 101.131(h) (relating to conduct of a telephone hearing).
§ 101.131. Conduct of a telephone hearing.
(a) Before testimony is received, the tribunal will advise all parties of the right to object to telephone testimony and to request an in-person hearing in compliance with Subchapter B (relating to provisions governing hearings before the Department or referee).
(b) A party may pursue an objection to telephone testimony at the hearing and shall set forth reasons in support thereof. If the objection is sustained, the tribunal will reschedule the hearing at a later date, either in person or by telephone, in accordance with Subchapter B or this subchapter. If the objection is not sustained, the tribunal may proceed with the hearing in accordance with this subchapter.
(c) At the start of the hearing, the tribunal will state on the record the time and telephone numbers at which the tribunal initiates the contact with any party, witness, legal counsel or authorized agent who is to testify or appear by telephone.
(d) The proceedings of the hearing will be tape recorded to preserve the record. A person testifying or appearing by telephone will be advised by the tribunal that the proceedings are being tape recorded.
(e) The tribunal will permit parties a reasonable opportunity to question other parties or witnesses testifying by telephone for the purpose of verifying the identity of the parties or witnesses. Falsification of identity may subject the parties or witnesses to prosecution and punishment.
(f) A party or witness not identified to the tribunal and all other parties before the beginning of the testimony will not be permitted to testify by telephone. Testimony taken or given in violation of this subsection will be excluded from consideration.
(g) A person may not prompt or direct the testimony of a witness testifying by telephone. Testimony taken or given in violation of this subsection may be excluded from consideration by the tribunal, with or without an objection from a party.
(h) A document not provided as required by § 101.130(e) (relating to notice of testimony by telephone and use of documents) may not be admitted nor testimony given or taken from it unless consent has been requested from and given by all parties. Testimony taken or given in violation of this subsection will be excluded from consideration, as will the document.
(i) The oath or affirmation administered to parties or witnesses testifying by telephone shall indicate that the parties or witnesses will not testify from documents that are not in the record and that their testimony will not be prompted or directed during the hearing by any other person.
§ 101.132. Representation by telephone.
The counsel or authorized agent of a party may appear at a hearing by telephone, with the approval of the tribunal.
§ 101.133. Data maintenance requirement.
The Board will compile and maintain data on the scheduling and receipt of testimony by telephone.
[Pa.B. Doc. No. 97-2081. Filed for public inspection December 26, 1997, 9:00 a.m.]
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