Legislative Update
February 9, 2012
The Chamber makes progress on member concerns regarding the Unemployment Insurance Appeals Board
On February 8, Chamber lobbyist Joe Fitzgerald attended the Joint Sunset Committee hearing on Unemployment Insurance Appeals Board in order to relate a long-standing concern of our members and the business community at large regarding a requirement that corporations and similar entities retain legal counsel in order to appear before the Board.
This rule imposes an unfair and costly burden on small business owners and acts as a disincentive to employers who would otherwise defend themselves against unmerited claims.
Representative Brad Bennett (D-Dover) raised the issue at last night’s meeting and has advised the Chamber that it will be discussed at the next committee meeting and voted on as a point of consideration in their review of the Board.
The following statement was submitted to the legislators serving on that committee:
Mr. Chairman and Distinguished Members:
My name is Joe Fitzgerald, I am appearing on behalf of the New Castle County Chamber of Commerce, a 1,400 member business organization committed to representing the interests of our members and the business community at large before every level of government.
Our chief concern regarding the Unemployment Insurance Appeals Board is the requirement in their rule of procedure which mandates that corporations and other "artificial entities" such as LLCs and LLPs. Be represented by counsel in order to appear before them. The rule itself as it appears in Title 19 of the Administrative Code seems to allow both the employer and the employee to appear pro se (please see below). However, it is our understanding, as a result of concerns expressed by our members, and based on our conversations with the Secretary, that corporations must, in fact, retain counsel in order to appear before the Board. The rule in question follows:
4.3 Representation.
4.3.1 At any hearing, a party may appear pro se or be represented by an attorney-at-law duly admitted to practice law in the State of Delaware. A corporation or other artificial entity desiring legal representation must be represented by an attorney-at-law duly admitted to practice law in the State of Delaware.
4.3.2 The Board or its attorney may examine any witnesses, and move the admissions of documents and things into evidence.
As you know, many small businesses are formed as corporation, as well as as LLPs and LLCs (the other artificial entities to which this rule presumably applies). The requirement that such entities retain counsel in matters before a quasi-judicial board imposes a significant and frequently unnecessary expense on many businesses who have legitimate cause to contest a former employee's application for unemployment insurance. Clearly, this requirement creates an unfair disincentive to employers who may otherwise be inclined to appeal or defend themselves against unmerited claims by unqualified former employees.
The New Castle County Chamber of Commerce is calling for a rule change that would allow employers, if they so choose, to appear pro se, regardless of the form of their business. While we understand that this is a regulatory rather than a statutory requirement, we feel that the Committee should be aware of the concerns of the employers who appear before the Board. Thank you for your consideration of our concerns.
The Chamber's original letter to the Department of Labor is attached in PDF format.
Legislative panel discussion scheduled for February 29 at the Chamber, noon-1:30 p.m.
Join us for a legislative panel discussion of the issues that affect your bottom line! Several members of the House Small Business Caucus, to include House Economic Development, Banking and Insurance Committee Chairman Bryon Short, House Minority Leader Greg Lavelle, Representative Mike Barbieri (D-Iroquois Woods) and Representative Mike Ramone (R-Middle Run Valley), will discuss major business issues before the legislature as well as their vision for Delaware. The panel will be moderated with plenty of time remaining for questions and answers.
To register, please click the following link: http://www.ncccc.com/cwt/External/WCPages/WCEvents/EventDetail.aspx?EventID=1149