In a first for me, the Nebraska Department of Labor reversed a finding that my client had quit without good cause and awarded my client full unemployment benefit without a hearing.

The procedure where the Nebraska Department of Labor reverses itself on benefit determination without a hearing is called redetermination. As unemployment claims and unemployment decision appeals increase, I believe the Nebraska Department of Labor will use increasingly use this procedure.

What is redetermination and how is different than appeal

Normally reversing a decision by a claims adjudicator requires filing an appeal under Neb. Rev. Stat. §48-634. The appeal usually leads to a hearing where an administrative law judge decides whether someone is eligible for unemployment benefits.

But Neb. Rev. Stat. §48-631 allows an adjudicator to reconsider their decision. They can reconsider based on newly discovered wages, miscalculated wages or determinations made on misrepresentations of fact.

Now misrepresentation sounds like and would apply to fraud by an employer or employee. But, 219 NAC 15 001-D(1)  broadly defines misrepresentation for the purposes of redeterminations. For the purposes of redetermination, ignorant misrepresentation can prompt a redetermination. A lawyer may know how to obtain documents or know what documents to submit to prove a case for unemployment that a newly unemployed worker wouldn’t have thought to submit initially.

Why I think increasing in unemployment claims will lead to more redeterminations?

First, I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals, is looking to manage their case load. As a result of the pandemic, I estimate the case load at the Tribunal has nearly tripled since before the COVID pandemic.

Consequently the increase in case loads since the pandemic has doubled the time between appeals and hearings from about four to eight weeks.  But by law, the Appeal Tribunal wants to schedule hearings as soon as possible. But one advantage to a longer lag between appeal and hearing date is having more time for discovery.

With more time, a lawyer can submit those documents to the Tribunal well in advance of hearing. By submitting those documents to the Department of Labor, the Department can make a redetermination short of hearing.

Redetermination as summary judgment?

In regular civil cases, courts can dispose of cases through summary judgment. Summary judgment is a disposition of a case based on documents without a trial. The purpose of summary judgment is to speed up case resolution and save court time.

However the Nebraska Appeal Tribunal lacks a summary judgment procedure. In normal times something like summary judgment is unnecessary. However as appeals back up, the redetermination procedure may function as a form of summary judgment in the Nebraska Appeal Tribunal.

Redetermination isn’t always the end

But, parties can still appeal from a re-determination — this means employers. But in my experience, employers are less likely to appeal determinations that go against them. Addtionally, the CARES Act makes it less likely that employers will have their rates go up or be charged if an employee quits with good cause or is fired without good cause. This lessens their reason to file an appeal