Section 1. Amend Chapter 31, Title 19 of the Delaware Code, by striking §§ 3101 through 3106 thereof in their entirety.

Section 2. Amend §3125(b), Title 19 of the Delaware Code, by striking the phrase “, an appeal tribunal or the Unemployment Insurance Review Board” as it appears therein.

Section 3. Amend § 3318(a), Title 19 of the Delaware Code, by striking the phrase “which shall make its decision with respect thereto in accordance with the procedure described in subsection (c) of this section” as it appears in the third sentence thereof.

Section 4. Amend § 3318(b), Title 19 of the Delaware Code, by striking the phrase “10 calendar days after such Claims Deputy's determination was mailed to the last known addresses of the claimant and the last employer,” as it appears in the first sentence thereof and by substituting in lieu thereof the phrase:

“14 calendar days after the date the parties were given personal notice of the Claims Deputy's determination, or such determination was mailed to the last known addresses of the claimant and the last employer, whichever is later,”

Section 5. Amend § 3318(b), Title 19 of the Delaware Code, by striking the last sentence thereof in its entirety and by substituting in lieu thereof the following:

“If an appeal is filed from a Claims Deputy’s determination, benefits shall be paid in accordance with such determination notwithstanding such appeal; provided, however, that if the Claims Deputy’s determination is modified or reversed on appeal, benefits shall thereafter be paid or recouped according to the appellate decision.”

Section 6. Amend § 3318, Title 19 of the Delaware Code, by striking subsection (c) thereof in its entirety.

Section 7. Amend Chapter 33, Title 19 of the Delaware Code, by striking §§ 3319 through 3323 thereof in their entirety and by substituting in lieu thereof the following:

“§ 3319. Establishment, organization, and disqualification of administrative appellate body; Unemployment Insurance Appeals Referees.

(a) To hear and decide disputed claims, there is hereby established an administrative appellate body consisting of salaried employees of the Department, known as Unemployment Insurance Appeals Referees, each having sufficient knowledge and training to review determinations of a Claims Deputy and to conduct further appellate review pursuant to this chapter. The administrative head of this appellate body shall be known as the Chief Referee.

(b) No referee shall participate in any case in which he or she is an interested party. In the event a referee is disqualified from hearing an appeal delegated to the referee pursuant to § 3320 of this title, because he or she in an interested party, the appeal shall be delegated to a different referee. In the event a referee is disqualified from hearing an appeal as part of a panel of an Appeals Tribunal, the Chief Referee may select an alternate referee to serve on the Tribunal.

§ 3320. Appeal of a determination by a Claims Deputy; disposition of claims and questions referred by a Claims Deputy; appeals of orders for recoupment.

(a) (1) A determination of a Claims Deputy may be appealed to the appellate body established in § 3319 of this title or, in lieu of making a determination, a Claims Deputy may refer a claim or question involved therein to the appellate body established in § 3319 of this title. In either case, a hearing shall be held on the matter and the Chief Referee shall delegate the conduct of the hearing to a single referee who shall be referred to as the ‘Hearing Referee’.

(2) The Hearing Referee shall conduct a fair hearing in accordance with regulations prescribed by the Department. The Hearing Referee shall provide all parties with proper and timely notice of the hearing. At the hearing:

a. Each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses, and obtain the issuance of subpoenas for the production of documents or to compel testimony;

b. The Hearing Referee shall create and maintain a full and complete record of all proceedings in connection with the disputed claim and record all testimony at any hearing upon the disputed claim, but need not transcribe the same unless the disputed claim is appealed to the Superior Court;

c. The Hearing Referee shall accept evidence and hear testimony relevant to the proceedings and in a manner consistent with regulations prescribed by the Department; and

d. The Hearing Referee shall make findings of fact and conclusions of law based upon the evidence presented at the appeals hearing and shall affirm, modify, or reverse the determination of the Claims Deputy. The Hearing Referee’s decision shall be rendered in a timely manner, and shall notify the parties of further appellate rights.

(2) a. The parties shall be duly notified of the Hearing Referee’s decision, together with the Referee’s reasons therefore. The Hearing Referee’s decision shall be deemed to be final unless, within 14 calendar days after the date of mailing of such decision to the parties, it is appealed to the appellate body established in § 3319 of this title.

(i) If no timely appeal is made, benefits shall be paid or recouped in accordance with the Hearing Referee’s decision.

(ii) If a timely appeal is made, benefits shall continue to be paid in accordance with the Claims Deputy’s determination notwithstanding the appeal; provided, however, that if either the Claims Deputy’s determination or the Hearing Referee’s decision is modified or reversed on appeal, benefits shall thereafter be paid or recouped according to the appellate decision.

b. If the Hearing Referee fails to make findings of fact, draw conclusions of law, and render a decision on the claim within a timely manner, the Chief Referee shall convene a panel of three Unemployment Insurance Appeals Referees, to be known as an ‘Appeals Tribunal’ and shall transfer the matter to the Appeals Tribunal for further consideration. The Appeals Tribunal shall review the determination of the Claims Deputy pursuant to § 3321 of this title as though it was on appeal and shall direct the Hearing Referee to conduct a fair hearing on the matter, to make findings of fact, and to draw conclusions of law for use by the Appeals Tribunal in rendering a decision on the claim. Under these circumstances, benefits shall continue to be paid in accordance with the determination of the Claims Deputy notwithstanding the transfer; provided, however, that if the Claims Deputy’s determination is modified or reversed by the Appeals Tribunal, benefits shall thereafter be paid or recouped according to the Appeal Tribunal's decision.

(b) (1) An order for recoupment issued by the Department pursuant to § 3325 of this title may be appealed to the appellate body established in § 3319 of this title. A hearing shall be held on the matter and the Chief Referee shall delegate the conduct of the hearing to a single referee who shall be referred to as the ‘Hearing Referee.’ The Hearing Referee shall conduct a fair hearing in accordance with regulations prescribed by the Department. The Hearing Referee shall provide all parties with proper and timely notice of the hearing. At the hearing:

a. Each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses, and obtain the issuance of subpoenas for the production of documents or to compel testimony;

c. The Hearing Referee shall accept evidence and hear testimony relevant to the proceedings and in a manner consistent with regulations prescribed by the Department; and

d. The Hearing Referee shall make findings of fact and conclusions of law based upon the evidence presented at the appeals hearing and shall affirm, modify, reverse, or enjoin the action to collect an overpayment, or order for recoupment. The Hearing Referee’s decision shall be rendered in a timely manner, and shall notify the parties of further appellate rights.

(i) If no timely appeal is made, the Hearing Referee’s decision shall be deemed to be final and recoupment, if required, shall be made in accordance with such decision.

(ii) If a timely appeal is made, enforcement of the order for recoupment shall be stayed until a final appellate decision is rendered on the matter; provided, however, that if the Hearing Referee’s decision is modified or reversed on appeal, recoupment, if required, shall thereafter be made in accordance with such decision.

b. If the Hearing Referee fails to make findings of fact, draw conclusions of law, and render a decision on the claim within a timely manner, the Chief Referee shall convene a panel of three Unemployment Insurance Appeals Referees, to be known as an ‘Appeals Tribunal' and shall transfer the matter to the Appeals Tribunal for further consideration. The Appeals Tribunal shall review the determination of the Claims Deputy pursuant to § 3321 of this title as though it was on appeal and shall direct the Hearing Referee to conduct a fair hearing on the matter, to make findings of fact, and to draw conclusions of conclusions of law for use by the Appeals Tribunal in rendering a decision on the claim. Under these circumstances, enforcement of the order shall be stayed and recoupment, if required, shall thereafter be paid in accordance with the decision of the Appeals Tribunal.

§ 3321. Appeals to the appellate body established in § 3319 of this title; Appeals Tribunals.

(a) Any time a decision of a Hearing Referee, or in the absence thereof a determination of a Claims Deputy, is appealed to the appellate body established in § 3319 of this title, the Chief Referee shall convene a panel of three Unemployment Insurance Appeals Referees, to be known as an ‘Appeals Tribunal’ to consider the appeal. None of the referees on the Appeals Tribunal shall be the Hearing Referee or an interested party.

(b) An Appeals Tribunal shall consider any appeal before it be on the record only, as identified in paragraph (4) or (5) of this section, without a de novo hearing and shall affirm, reverse, or modify the decision or determination before it. Findings of fact shall not be set aside unless the Appeals Tribunal determines that the record lacks substantial evidence that would reasonably support the findings.

(c) In any case, the Appeals Tribunal shall remand the matter to the Hearing Referee for further proceedings on the record if:

(1) It determines that the record is insufficient for its review; or

(2) It determines that new evidence has come to the knowledge of one of the parties since the hearing before the Hearing Referee, and that such evidence could not, in the exercise of reasonable diligence, have been discovered for use at said hearing, and that such evidence is so material and relevant that it would probably have changed the result of the hearing before the Hearing Referee.

(d) If the claim is appealed pursuant to § 3319(2)a., the appeal shall be on the record of the Hearing Referee and the Appeals Tribunal shall determine:

(1) whether the Hearing Referee committed an error of law and/or correctly or incorrectly applied the law to the facts in the record; or

(2) whether the Hearing Referee’s decision constituted an abuse of discretion.

(e) If a claim is appealed to the Chief Referee pursuant to § 3319(2)b., the appeal shall be on the record of the Claims Deputy and the Appeals Tribunal shall determine:

(1) whether the Claims Deputy committed an error of law and/or correctly or incorrectly applied the law to the facts in the record; or

(2) whether the Claims Deputy’s determination constituted an abuse of discretion.

(f) If no timely appeal is made from a decision of an Appeals Tribunal, benefits shall be paid or recouped in accordance with the decision of the Appeals Tribunal. If a timely appeal is made from the Appeals Tribunal’s decision, benefits shall continue to be paid as awarded notwithstanding the appeal; provided, however, that if the decision of the Appeals Tribunal is reversed on appeal, benefits shall thereafter be paid or recouped according to the appellate decision.

(g) The manner in which appeals shall be presented to the Appeals Tribunal shall be in accordance with regulations prescribed by the Department, whether or not such regulations conform to Delaware Rules of Evidence and other technical rules of procedure.

§ 3322. Finality of Appeals Tribunal’s decision; duty to exhaust administrative remedies; position of Department in judicial review.

(a) Any decision of the Appeals Tribunal shall become final 10 business days after the date of mailing thereof to the parties, and judicial review thereof as provided in this subchapter shall be permitted only after any party claiming to be aggrieved thereby has exhausted all administrative remedies as provided by this chapter.

(b) The Department shall be deemed to be a party to any judicial action involving any such decision, and may be represented in any such judicial action by any qualified attorney employed by the Department and designated by it for that purpose or at the Department’s request by the Attorney General.

§ 3323. Judicial review; procedure.

(a) Within 10 business days after the decision of the Appeals Tribunal has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the Superior Court in the county in which the claimant resides or the employer's place of business is located against the Department for the review of such decision, in which action any other party to the proceeding before the Appeals Tribunal shall be made a defendant. In such action, a petition, which need not be verified, but which shall state the grounds upon which a review is sought, shall be served upon the Department or upon such person as the Department may designate, and upon all other parties to the case. With its answer the Department shall certify and file with the Court all documents and papers, as well as a transcript of all testimony taken in the matter together with the Appeals Tribunal’s findings of fact and decision therein. In any judicial proceeding under this section, the findings of the Appeals Tribunal as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law. Such actions shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under this chapter.

(b) An appeal may be taken from the decision of the Superior Court to the Supreme Court of this State in the same manner, but not inconsistent with this chapter, as is provided in civil cases.

(c) It shall not be necessary in any judicial proceeding under this section to enter exceptions to the rulings of the Appeals Tribunal and no bond shall be required for entering such appeal. Upon the final determination of such judicial proceeding, the Appeals Tribunal shall enter an order in accordance with such determination. A petition for judicial review shall not act as a supersedeas or stay, nor shall the Appeals Tribunal or any court enter an order of supersedeas or stay which shall delay the payment of any benefits to which the claimant has been determined to be entitled or delay any determination of claimant's rights to any benefits.”

Section 8. Amend § 3325, Title 19 of the Delaware Code, by striking the second paragraph thereof in its entirety and by substituting in lieu thereof as follows:

“The Department shall issue a notice of overpayment and an order for recoupment, stating its grounds therefore, before initiating action to collect the overpayment. Unless, within 14 calendar days after such order was mailed to the person at the person's last known address, the person files an appeal to the appellate body established in § 3319 of this title, the order shall be final and recoupment shall be made in accordance with such order.”

Section 9. Amend Chapter 33, Title 19 of the Delaware Code, by striking § 3344 thereof in its entirety and by substituting in lieu thereof the following:

“§ 3344. Determination of liability of employer for assessments; administrative and judicial review; time limits.

(a) The Department may delegate to a suitable employee of the Department the power to make preliminary determinations on all questions relating to the liability of employing units for the assessments mentioned in this subchapter, but such administrative rulings shall be subject to the review of the appellate body established in § 3319 of this title. The person taking the appeal shall be designated as the complainant. The appellate body shall hear such appeals within a reasonable time and all proceedings before any Hearing Referee or Appeals Tribunal of the appellate body shall be conducted in a manner consisted with the review of all claims before the body.

(b) The appellate body’s decision shall be final and conclusive as to the liability of the employing unit unless, within 10 days after mailing thereof the complainant or the Department appeals to the Superior Court for the county in which the complainant resides. The Department may be represented in any such appeal by any qualified attorney employed by the Department and designated by it for that purpose or, at the Department's request, by the Attorney General. In every such appeal the cause shall be decided by the Court from the record, without the aid of a jury, and the Court may affirm, reverse or modify the appellate body’s decision. The appellate body’s findings of facts shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court shall remand the case to the appellate body for completion of the record. If the Court finds that the appellate body has made an error of law, the Court shall reverse or modify the appellate body’s decision and render an appropriate judgment.

(c) In every such appeal the cause shall be decided by the Court from the record without the aid of a jury, and the Court may affirm, reverse or modify the appellate body’s decision. The appellate body’s findings of fact shall not be set aside if the Court finds the record contains substantial evidence to reasonably support the findings. If the Court finds that additional evidence should be taken, the Court shall remand the case to the appellate body for completion of the record. If the Court finds that the appellate body has made an error of law, the Court shall reverse or modify the appellate body’s decision and render an appropriate judgment.

(d) The Superior Courts for the several counties of this State shall have jurisdiction to hear and determine all appeals taken pursuant to this chapter and by appropriate rules shall prescribe the procedure in such appeals.

(e) The decision of the Court shall be in writing and the Prothonotary shall file a certified copy thereof with the appellate body.

(f) Costs may be awarded by the Court and, when so awarded, the same amount of costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services in the Superior Court.”

Section 10. This Act shall become effective as follows:

(1) Beginning 6 months following the enactment of this Act into law:

a. Persons appealing decisions from Claims Deputies, or orders for recoupment issued by the Department pursuant to § 3325 of Title 19, shall be able to choose to make the appeal to either the Unemployment Insurance Appeals Board or to the appellate body established pursuant to this Act;

b. Claims Deputies shall only refer claims and questions involved therein to the appellate body established pursuant to this Act; and

c. All remands from the Superior Court or Supreme Court on appeals from decisions of the Unemployment Insurance Appeals Board shall be sent to the appellate body established pursuant to this Act for further consideration by a Hearing Referee or an Appeals Tribunal at the direction of the referring Court.

(2) Beginning 8 months following the enactment of this Act into law, all provisions of this Act shall be effective and persons appealing decisions from Claims Deputies, or orders for recoupment issued by the Department pursuant to § 3325 of Title 19, shall be able to make the appeal only the appellate body established pursuant to this Act.

Section 11. The Unemployment Insurance Appeals Board shall sunset effective June 30, 2003 and shall conclude its business on or before December 30, 2004 or at such earlier date as required by law.

Section 12. The Department of Labor shall appoint each current Unemployment Insurance Appeals Board (UIAB) member as a salaried employee of the Department of Labor, to be paid at an hourly rate based on the entry-level annual salary of a UIAB referee reduced to an hourly rate for a 37 ½-hour week, for employment as an Unemployment Insurance Appeals Referee (UIAR) as described in this Act until the date upon which his or her term as a UIAB member would have expired had the UIAB not been terminated, if the UIAB member chooses to become a referee. When a UIAB member's expiration date arrives or if a UIAB member chooses not to become a referee, the position of UIAR becomes a merit system position, for which the UIAB member may apply. A panel of 3 Unemployment Insurance Appeals Referees must be composed of both fulltime Department of Labor Unemployment Insurance Appeals Referees and appointed referees who were UIAB members, whenever possible. This section shall sunset one year after the date of its enactment into law unless the Joint Sunset Committee reestablishes it.

SPONSOR:	Rep. Ulbrich & Sen. Peterson;
	Reps. Hudson, Schwartzkopf, Valihura, Viola; Sens. Copeland, Sokola