Archive for August, 2012

August 21, 2012

Non-English speakers may have good cause to file unemployment appeals late in Nebraska

Anybody who represents a significant number of injured in workers in Nebraska is going to represent many people who 1) do not understand English and have a very limited education in their native  language and 2) will have to file for unemployment benefits to support themselves because their workers’  compensation claim is being disputed by their employer.

If a workers compensation claim is disputed, often times an unemployment claim will be disputed as well.  If an employee is denied unemployment by an adjudicator, they have 20 days to appeal that decision to the Nebraska Appeal Tribunal.  However my experience is that the notice of right appeal comes in English and non-English speakers many times don’t understand what the document means. Sometimes this means non-English speakers may miss appeal deadlines because they don’t understand the form.

However 224 NAC 1 (003) (B) states than a person can file late if good cause is shown.  I had a recent experience where the Nebraska Department of Labor  found good cause for an appeal that was 15 days late where my client only understood Spanish and the notice of right to appeal came in English.  This decision agrees with fundamental principles of constitutional law. No person shall  be deprived of life, liberty or property without due process of law. See U.S.C.A. V and XIV .Neb. CONST. Art. I, § 3. The central meaning of due process of law is that parties who are to be effected are entitled to be heard; and in order to exercise that right they must be first notified. Baldwin v. Hale, 68 U.S. 223, 233 (1863) The right to be heard must come at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 334 (1976)

I doubt that due process means that a non-English speaker can file a unemployment appeal years or even months after receiving notice of appeal. Weeks would probably be pushing the envelope.  No court is going to excuse a lack of due diligence. However lawyers who represent non-English speakers should be willing to file late unemployment appeals if the employee is not unreasonably late and if the notice of right to appeal came in English.

I think the administration of unemployment benefits would be more efficient if a system could be worked out to notify non-English speakers in their native languages. I think this something that could be worked out between the NDOL and the business community without  legislative involvement.

 

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