2019 Tennessee Code
Title 50 - Employer and Employee
Chapter 7 - Tennessee Employment Security Law
Part 3 - Benefits
§ 50-7-304. Procedure for claims and appeals.
(a) Filing. Claims for benefits shall be made in accordance with regulations the commissioner prescribes. Each employer shall post and maintain, in places readily accessible to individuals performing services for the employer, printed statements concerning benefit rights, claims for benefits and other matters relating to the administration of this chapter that the commissioner prescribes by regulation. Each employer shall supply to the individuals copies of the printed statements or other materials relating to claims for benefits when and if the commissioner prescribes by regulation. If the commissioner, as a result of the regulations or otherwise, elects to supply the printed statements or other materials to any employer or employers, it will be done without cost to the employer or employers.
(b) Determinations.
(1)
(A) Monetary Determination. A representative designated by the commissioner, and referred to as the “agency representative,” shall promptly examine the claim and, on the basis of the facts found by the agency representative, shall either determine whether or not the claim is valid monetarily and, if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration of the benefit. The claimant shall be furnished a copy of the monetary determination showing the amount of wages paid the claimant by each employer during the claimant's base period and the employers by whom the wages were paid, the claimant's benefit year, weekly benefit amount, and the maximum amount of benefits that may be paid to the claimant for unemployment during the benefit year. When a claimant is ineligible due to lack of earnings in the claimant's base period, the monetary determination shall so designate. The claimant shall be allowed ninety (90) days from the mailing date, or in-person delivery of the claimant's monetary determination to the claimant, within which to protest the claimant's monetary determination.
(B) Nonmonetary Determination. Further, the agency representative shall then review the claim deemed valid monetarily and render a determination on the nonmonetary issues presented, except that in any case in which the payment or denial of benefits will be determined by § 50-7-303(a)(4), the agency representative shall promptly transmit the agency representative's full findings of fact with respect to § 50-7-303(a)(4) to the commissioner, who, on the basis of the evidence submitted and additional evidence that the commissioner may require, shall affirm, modify or set aside the findings of fact and transmit to the agency representative a decision upon the issues involved under § 50-7-303(a)(4), which shall be deemed to be the nonmonetary determination of the agency representative. Any questions or issues involved in any nonmonetary determination may be referred by the commissioner to an unemployment hearing officer, who shall make the unemployment hearing officer's determination with respect to the nonmonetary determination in accordance with the procedure described in subdivision (c)(1). The agency representative shall promptly give written notice to the claimant and all other interested parties of the nonmonetary determination and the reasons for the determination. The nonmonetary determination of the agency representative shall become final, unless an interested party files an appeal from the nonmonetary determination within fifteen (15) calendar days after the date of mailing of the written notification of the nonmonetary determination to the last known address of the party, or within fifteen (15) calendar days after the date the written notification is given to the party, whichever first occurs.
(C) Reconsideration. At any time within one (1) year from the date of the making of any monetary or nonmonetary determination, the agency representative may, for good cause, reconsider the agency representative's decision, unless an interested party has appealed the monetary or nonmonetary determination and the appeals tribunal has accepted jurisdiction, and shall promptly give written notice to the claimant and all other interested parties of the agency representative's amended monetary or nonmonetary determination and the reason for the amended determination.
(2) Payment — Overpayments — Employer Response to Request for Separation Information — Employer Charges for Overpayment.
(A) Payment. Benefits shall be paid promptly in accordance with the agency decision or any decision of the appeals tribunal, the commissioner’s designee or a reviewing court.
(i) The payment shall be made upon the issuance of the decision unless and until the decision has been modified or reversed by a subsequent decision. The payment shall be made regardless of the pendency of any application for reconsideration, filing of an appeal, or a petition for judicial review.
(ii) If and when the decision has been modified or reversed, benefits shall be paid or denied for weeks of unemployment thereafter in accordance with the modifying or reversing decision.
(B) Overpayments. If no fraud or misrepresentation on the part of the claimant is involved and a subsequent decision adverse to the claimant results because of the employer's failure to respond as described in subdivision (b)(2)(C) or results because the employer did not appear for a scheduled hearing before the appeals tribunal or the commissioner’s designee, no overpayment will be established and the claimant will not be required to repay any benefits paid prior to the decision. Otherwise, the claimant will be charged with any benefits paid, and shall be liable to have the payments deducted from future benefits payable under this chapter, or shall be liable to repay the commissioner, for deposit in the unemployment compensation fund, a sum equal to the amount so received, and the sum shall be collectible in the manner provided in § 50-7-404(b), for collection of past due premiums.
(C) Employer Response to Request for Separation Information. If a separation issue exists, the separating employer will be asked to supply information describing circumstances leading to the separation. The information must be received by the agency within seven (7) days from the date the agency request for information is mailed to the separating employer. In the absence of the response, the decision of entitlement will be based on the claimant's statement and other information available to the agency. The separating employer may supply information to the agency prior to a request for information being mailed from the agency if the employer expects a separation issue to arise with regard to an employee.
(D) Employer Charges for Overpayments. If the decision approving the claim is finally reversed, no premium paying employer's account shall be charged with any benefits so paid. The separating employer who fails to respond as described in subdivision (b)(2)(C) or who did not appear for a scheduled hearing before the appeals tribunal or the commissioner’s designee will be charged with that portion of benefits paid that are attributable to wages paid in its employment during the base period.
(E) Offset expenses and fees.
(i) In addition to any remedies authorized by this chapter, the department may offset any covered unemployment compensation debt, as defined in 26 U.S.C. § 6402, due to the department against any federal income tax refund due to the department's claimant debtor in accordance with § 6402 of the Internal Revenue Code (26 U.S.C. § 6402) and the federal Treasury Offset Program (31 CFR Part 285) or any successor program.
(ii) [Deleted by 2015 amendment, effective July 1, 2015.]
(iii) Any fee or administrative expense imposed by the United States department of the treasury or the United States department of labor in connection with such offset shall be the responsibility of the debtor.
(iv) Following such offset, the amount of credit to which a debtor is entitled shall not exceed the amount of the credit received by the department.
(c) Appeals.
(1) In the case of an appeal that has been filed pursuant to subdivision (b)(1) and that has not been withdrawn, an unemployment hearing officer shall first afford all interested parties reasonable opportunity for a fair hearing, and the unemployment hearing officer shall affirm, modify or set aside the findings of fact and decision of the agency representative. The unemployment hearing officer promptly shall give written notice to all interested parties of the unemployment hearing officer's decision and the reasons for the decision. The decision of the unemployment hearing officer shall be deemed to be the final decision of the commissioner, unless further appeal is initiated pursuant to subsection (e) within fifteen (15) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party, or within fifteen (15) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs. In the absence of an appeal to the commissioner’s designee and within thirty (30) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party or within thirty (30) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs, the unemployment hearing officer may reconsider the unemployment hearing officer's decision and thereupon promptly shall give written notice to the claimant and all other interested parties of the amended decision and the reasons for the decision. The amended decision of the unemployment hearing officer shall be deemed to be the final decision of the commissioner, unless further appeal is initiated pursuant to subsection (e) within fifteen (15) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party, or within fifteen (15) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs.
(2) Notwithstanding any other provision of this chapter, the time limit provided in subdivision (b)(1) for an appeal to the appeals tribunal may be extended for good cause by the appeals tribunal, and the time limit provided in subdivision (c)(1) for an appeal to the commissioner’s designee may be extended for good cause by the commissioner’s designee. In determining whether or not good cause exists for extending the time limits, the appeals tribunal and the commissioner’s designee shall consider the length of the delay, the reason for the delay, and the prejudice or lack of prejudice to the parties.
(d) Unemployment Hearing Officers. To hear and decide disputed claims, the commissioner shall appoint one (1) or more unemployment hearing officers selected in accordance with § 50-7-605. No person shall participate on behalf of the commissioner or the commissioner's designee in any case in which the person is an interested party. The commissioner may designate any regular qualified employee or employees of the department of labor and workforce development as temporary or acting unemployment hearing officers who shall serve as hearing officers without additional salary and for the period of time the commissioner designates. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter. All permanently and temporarily appointed unemployment hearing officers will constitute a part of the unemployment compensation division. The commissioner shall provide the designees designated to hear second stage appeals and the unemployment hearing officers with proper facilities and assistants for the execution of their functions. The department shall hold annual training for all unemployment hearing officers. Such training shall include updates on any new laws or regulations involving employment security law enacted by the state or federal government.
(e) Commissioner’s Designees.
(1) The commissioner shall designate Tennessee licensed attorneys within the department of labor and workforce development to adjudicate appeals of the decisions of the unemployment hearing officer. The individuals so designated shall be referred to as the commissioner's designees and will constitute a part of the department of labor and workforce development's legal division.
(2) The commissioner's designees may on their own motion affirm, modify, or set aside any decision of an unemployment hearing officer on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence, or may permit any of the parties to the decision to initiate further appeals before it. The commissioner's designee shall permit the further appeal by any of the parties interested in a decision of an unemployment hearing officer. The commissioner may remove to a designee or transfer to another unemployment hearing officer proceedings of any claim pending before an unemployment hearing officer. The commissioner's designee shall promptly give written notice to all interested parties of the designee's findings and decision. Any decision of the commissioner's designee shall be the final decision of the commissioner.
(f) Procedure. The manner in which disputed claims shall be presented, the reports required from the claimant and from employers, and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the commissioner for determining the rights of the parties, whether or not the regulations conform to common law or statutory rules of evidence and other technical rules of procedure; provided, that proof of misconduct may include personnel records and other business records that are in the possession of a claimant's employer and that are relevant to a claim, and such records shall be admissible and may constitute evidence of misconduct, regardless of whether such evidence is hearsay or whether corroborated by direct witness testimony, if such evidence is accompanied by an affidavit of its custodian or other qualified person certifying the evidence as a business record. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed, unless the disputed claim is appealed to chancery court. Notwithstanding § 4-5-312(c) or any other provision to the contrary, the appeals tribunal and the commissioner’s designee may, for good cause, hold all or part of the hearing by telephone conference. In determining good cause, the appeals tribunal and commissioner’s designee shall consider the wishes of the parties and such factors as the physical security risk to the participants or the department's staff, the travel distance to the hearing location for either or both parties, the relative hardship or convenience to the parties, the complexity of the issues and any other factor relevant to having a fair hearing.
(g) Witness Fees. Witnesses subpoenaed pursuant to this section shall be allowed fees at the rates fixed by the commissioner; provided, that the rates shall not be less than the per diem and mileage rates fixed by the laws of the state in other civil cases. The fees are deemed a part of the expense of administering this chapter.
(h) Appeal to Courts. Any decision of the commissioner, in the absence of any application by any interested party for rehearing of that decision, shall become final ten (10) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party or within ten (10) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs. In the written notification shall be an explanation that further appeals shall be conducted within thirty (30) days of the commissioner's final decision by filing a petition for judicial review in the chancery court of the county of the party's residence and that the petition shall be against the commissioner of labor and workforce development. Judicial review of any decision of the commissioner shall be permitted only after any party claiming to be aggrieved by the decision has exhausted the administrative remedies provided by this chapter.
(i) Court Review.
(1) Within thirty (30) days after the decision of the commissioner has become final, any party aggrieved by the decision may secure judicial review of the decision by filing a petition for judicial review in the chancery court of the county of the party's residence against the commissioner for review of the decision, except that any petition for judicial review of tax liability must be filed in the chancery court of Davidson County. In the case of a petition filed by an aggrieved party who is not a resident of the state, within thirty (30) days after the decision of the commissioner’s designee has become final, a nonresident party may secure judicial review of the decision by filing a petition for judicial review against the commissioner in the chancery court of the county where the employer is located, except that any petition for judicial review of tax liability must be filed in the chancery court of Davidson County. Any other party to the proceeding before the commissioner’s designee shall be made a defendant to the petition and duly served with process. For the purposes of this subsection (i), the parties to the proceeding before the commissioner’s designee shall be deemed to include the original claimant or applicant for benefits, and each and every employer from whom the claimant received, during the claimant's base period, any wages for insured work, whether or not the party appeared and participated in the proceeding before the commissioner’s designee; and all the parties shall be deemed necessary parties to any petition for judicial review filed pursuant to this subsection (i). In such action, the petition shall distinctly state the grounds upon which the review is sought, and shall be served through the normal processes of the court upon the commissioner or the attorney general and reporter. Immediately upon the filing of the petition, the petitioner shall cause to be forwarded to the commissioner, for informational purposes, a copy of the petition, which shall be in addition to the copy of the petition served by the court at the time of service of the process. With the commissioner's answer, which shall be filed within thirty (30) days from the date the commissioner or the attorney general and reporter is served with the process, the commissioner shall file in the court a complete transcript of the record, which shall contain all documents and papers, a transcript of all testimony taken in the matter and findings of fact and conclusions of law by the commissioner’s designee.
(2) The chancellor may affirm the decision of the commissioner or the chancellor may reverse, remand or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(A) In violation of constitutional or statutory provisions;
(B) In excess of the statutory authority of the agency;
(C) Made upon unlawful procedure;
(D) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(E) Unsupported by evidence that is both substantial and material in the light of the entire record.
(3) In determining the substantiality of evidence, the chancellor shall take into account whatever in the record fairly detracts from its weight, but the chancellor shall not substitute the chancellor's judgment for that of the commissioner’s designee as to the weight of the evidence on questions of fact. No decision of the commissioner’s designee shall be reversed, remanded or modified by the chancellor, unless for errors that affect the merits of the final decision of the commissioner’s designee. The petition for judicial review shall be heard by the chancellor either at term time or vacation as a matter of right, any other statute of this state to the contrary notwithstanding.
(4) It shall not be necessary in any judicial proceedings under this section to enter exceptions to the ruling of the commissioner’s designee, but the petition shall distinctly state the grounds upon which the action of the commissioner’s designee is deemed erroneous. An appeal may be taken from the judgment and decree of the chancery court having jurisdiction of these controversies to the Tennessee court of appeals, in the same manner, but not inconsistent with this chapter, as provided in other civil cases.
(5) In any judicial proceeding under this subsection (i), the appellant or petitioner shall give bond for costs, or in lieu of bond take the oath prescribed by law for paupers.
(6) Upon the final determination of the judicial proceedings, the commissioner’s designee shall enter an order in accordance with the final judicial determination.
(j) Notice of Health Insurance. The commissioner, in performing the duties established in this section, shall provide to every individual at the time the individual first inquires about unemployment compensation benefits the following notice:
- You may be entitled to have the state of Tennessee pay the premium for your ongoing health insurance. For more information, contact your local department of human services.
(k) Conclusiveness of Findings. No finding of fact or law, judgment, conclusion, or final order made with respect to a claim for unemployment compensation under this chapter may be conclusive in any separate or subsequent action or proceeding in another forum, except proceedings under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.
