44-709. Claims for benefits; filing; determination of; appointment of referees; appeals, time; procedures; board of review, membership, compensation and duties; witness fees; judicial review of order
44-709
44-709. Claims for benefits; filing; determinationof; appointmentof referees; appeals, time; procedures; board of review, membership,compensation and duties; witness fees; judicial review of order ofboard; findings, judgments, determinations and orders hereunder not admissibleor binding in separate or subsequent action or proceeding.(a) Filing. Claims for benefits shall be made in accordance withrules and regulations adopted by the secretary. The secretary shall furnish acopy of such rules and regulations to any individual requesting them. Eachemployer shall post and maintain printed statements furnished by the secretarywithout cost to the employer in places readily accessible to individuals in theservice of the employer.
(b) Determination. (1) Except as otherwise provided in thissubsection (b)(1), a representative designated by the secretary, andhereinafter referred to as an examiner, shall promptly examine the claim and,on the basis of the facts found by the examiner, shall determine whether or notthe claim is valid. If the examiner determines that the claim is valid, theexaminer shall determine the first day of the benefit year, the weekly benefitamount and the total amount of benefits payable with respect to the benefityear. If the claim is determined to be valid, the examiner shall send a noticeto the last employing unit who shall respond within 10 days by providing theexaminer all requested information including all information required for adecision under K.S.A. 44-706 and amendments thereto. The information may besubmitted by the employing unit in person at an employment office of thesecretary or by mail, by telefacsimile machine or by electronic mail. If therequired information is not submitted or postmarked within a response timelimit of 10 days after the examiner's notice was sent, the employing unit shallbe deemed to have waived its standing as a party to the proceedings arisingfrom the claim and shall be barred from protesting any subsequent decisionsabout the claim by the secretary, a referee, the board of review or any court,except that the employing unit's response time limit may be waived or extendedby the examiner or upon appeal, if timely response was impossible due toexcusable neglect. In any case in which the payment or denial of benefits willbe determined by the provisions of subsection (d) of K.S.A.44-706, and amendments thereto, the examiner shall promptly transmit theclaimto a special examiner designated by the secretary to make a determination onthe claim after the investigation as the special examiner deems necessary. Theparties shall be promptly notified of the special examiner's decision and anyparty aggrieved by the decision may appeal to the referee as provided insubsection (c). The claimant and the claimant's most recent employing unitshall be promptly notified of the examiner's or special examiner's decision.
(2) The examiner may for good cause reconsider the examiner's decision andshall promptly notify the claimant and the most recent employing unit of theclaimant, that the decision of the examiner is to be reconsidered, except thatno reconsideration shall be made after the termination of the benefit year.
(3) Notwithstanding the provisions of any other statute, a decision of anexaminer or special examiner shall be final unless the claimant or the mostrecent employing unit of the claimant files an appeal from the decision asprovided in subsection (c). The appeal must be filed within 16 calendar daysafter the mailing of notice to the last known addresses of the claimant andemploying unit or, if notice is not by mail, within 16 calendar days after thedelivery of the notice to the parties.
(c) Appeals. Unless the appeal is withdrawn, a referee, afteraffording the parties reasonable opportunity for fair hearing, shall affirm ormodify the findings of fact and decision of the examiner or special examiner.The parties shall be duly notified of the referee's decision, together with thereasons for the decision. The decision shall be final, notwithstanding theprovisions of any other statute, unless a further appeal to the board of reviewis filed within 16 calendar days after the mailing of the decision to theparties' last known addresses or, if notice is not by mail, within 16 calendardays after the delivery of the decision.
(d) Referees. The secretary shall appoint, in accordance withsubsection (c) of K.S.A. 44-714, and amendments thereto, one or morereferees tohear and decide disputed claims.
(e) Time, computation and extension. In computing the period oftime for an employing unit response or for appeals under this section from theexaminer's or the special examiner's determination or from the referee'sdecision, the day of the act, event or default from which the designated periodof time begins to run shall not be included. The last day of the period shallbe included unless it is a Saturday, Sunday or legal holiday, in which eventthe period runs until the end of the next day which is not a Saturday, Sundayor legal holiday.
(f) Board of review. (1) There is hereby created a board ofreview, hereinafter referred to as the board, consisting of three members.Except as provided by paragraph (2) of this subsection, each member of theboard shall be appointed for a term of four years as provided in thissubsection. Two members shall be appointed by the governor, subject toconfirmation by the senate as provided in K.S.A. 75-4315b and amendmentsthereto. Except as provided by K.S.A. 46-2601, and amendments thereto,noperson appointed to theboard, whose appointment is subject to confirmation by the senate, shallexercise any power, duty or function as a member until confirmed by the senate.One member shall be representative of employees, one member shall berepresentative of employers, and one member shall be representative of thepublic in general. The appointment of the employee representative member of theboard shall be made by the governor from a list of three nominations submittedby the Kansas A.F.L.-C.I.O. The appointment of the employer representativemember of the board shall be made by the governor from a list of threenominations submitted by the Kansas chamber of commerce and industry. Theappointment of the public representative member of the board, who, because ofvocation, occupation or affiliation may be deemed not to be representative ofeither management or labor, shall be made by the members appointed by thegovernor as employee representative and employer representative. If the twomembers do not agree and fail to make the appointment of the public memberwithin 30 days after the expiration of the public member's term of office, thegovernor shall appoint the representative of the public. Not more than twomembers of the board shall belong to the same political party.
(2) The terms of members who are serving on the board on the effective dateof this act shall expire on March 15, of the year in which such member's termwould have expired under the provisions of this section prior to amendmentby this act. Thereafter, members shall be appointed for terms of four yearsand until their successors are appointed and confirmed.
(3) Each member of the board shall serve until a successor has been appointedand confirmed. Any vacancy in the membership of the board occurring prior toexpiration of a term shall be filled by appointment for the unexpired term inthe same manner as provided for original appointment of the member. Each membershall be appointed as representative of the same special interest grouprepresented by the predecessor of the member.
(4) Each member of the board shall be entitled to receive as compensation forthe member's services at the rate of $15,000 per year, togetherwith the member's travel and other necessary expenses actually incurred in theperformance of the member's official duties in accordance with rules andregulations adopted by the secretary. Members' compensation and expenses shallbe paid from the employment security administration fund.
(5) The board shall organize annually by the election of a chairpersonfrom among its members. The chairperson shall serve in that capacity for aterm of one year and until a successor is elected. The board shall meet on thefirst Monday of each month or on the call of the chairperson or any two membersof the board at the place designated. The secretary oflabor shallappoint an executive secretary of the board and the executive secretary shallattend the meetings of the board.
(6) The board, on its own motion, may affirm, modify or set aside anydecision of a referee on the basis of the evidence previously submitted in thecase; may direct the taking of additional evidence; or may permit any of theparties to initiate further appeal before it. The board shall permit suchfurther appeal by any of the parties interested in a decision of a refereewhich overrules or modifies the decision of an examiner. The board may removeto itself the proceedings on any claim pending before a referee. Anyproceedings so removed to the board shall be heard in accordance with therequirements of subsection (c). The board shall promptly notify the interestedparties of its findings and decision.
(7) Two members of the board shall constitute a quorum and no action of theboard shall be valid unless it has the concurrence of at least two members. Avacancy on the board shall not impair the right of a quorum to exercise all therights and perform all the duties of the board.
(g) Procedure. The manner in which disputed claims are presented,the reports on claims required from the claimant and from employers and theconduct of hearings and appeals shall be in accordance with rules of procedureprescribed by the board for determining the rights of the parties, whether ornot such rules conform to common law or statutory rules of evidence and othertechnical rules of procedure. A full and complete record shall be kept of allproceedings and decisions in connection with a disputed claim. All testimony atany hearing upon a disputed claim shall be recorded, but need not betranscribed unless the disputed claim is further appealed. In the performanceof its official duties, the board shall have access to all of the records whichpertain to the disputed claim and are in the custody of the secretary oflabor and shall receive the assistance of the secretaryupon request.
(h) Witness fees. Witnesses subpoenaed pursuant to this sectionshall be allowed fees and necessary travel expenses at rates fixed by theboard. Such fees and expenses shall be deemed a part of the expense ofadministering this act.
(i) Court review. Any action of the board is subject to review inaccordance with the act for judicial review and civil enforcement of agencyactions. No bond shall be required for commencing an action for such review. Inthe absence of an action for such review, the action of the board shall becomefinal 16 calendar days after the date of the mailing of the decision. Inaddition to those persons having standing pursuant to K.S.A. 77-611, andamendments thereto, the examiner shall have standing to obtain judicial reviewof an action of the board. The review proceeding, and the questions of lawcertified, shall be heard in a summary manner and shall be given precedenceover all other civil cases except cases arising under the workers compensationact.
(j) Any finding of fact or law, judgment, determination, conclusion or finalorder made by the board of review or any examiner, special examiner, referee orother person with authority to make findings of fact or law pursuant to theemployment security law is not admissible or binding in any separate orsubsequent action or proceeding, between a person and a present or previousemployer brought before an arbitrator, court or judge of the state orthe United States, regardless of whether the prior action was between the sameor related parties or involved the same facts.
(k) In any proceeding or hearing conducted under this section, a party to theproceeding or hearing may appear before a referee or the board eitherpersonally or by means of a designated representative to present evidence andto state the position of the party. Hearings may be conducted in person, bytelephone or other means of electronic communication. The hearing shall beconducted by telephone or other means of electronic communication if none ofthe parties requests an in-person hearing. If only one party requests anin-person hearing, the referee shall have the discretion of requiring allparties to appear in person or allow the party not requesting an in-personhearing to appear by telephone or other means of electronic communication. Thenotice of hearing shall include notice to the parties of their right to requestan in-person hearing and instructions on how to make the request.
History: L. 1937, ch. 255, § 9; L. 1941, ch. 264, § 6; L.1943, ch. 190, § 4; L. 1959, ch. 223, § 4; L. 1965, ch. 320, § 1; L.1970, ch. 191, § 5; L. 1973, ch. 205, § 5; L. 1976, ch. 226, § 4; L.1976, ch. 370, § 61; L. 1979, ch. 161, § 2; L. 1980, ch. 149, §1; L. 1982, ch. 347, § 18; L. 1982, ch. 216, § 1; L. 1982, ch. 312,§ 2; L. 1984, ch. 318, § 9; L. 1986, ch. 191, § 3; L. 1986, ch. 318,§ 59;L. 1987, ch. 191, § 4;L. 1990, ch. 186, § 3;L. 1993, ch. 251, § 5;L. 1995, ch. 235, § 4;L. 1995, ch. 241, § 5;L. 1997, ch. 19, § 1;L. 1999, ch. 167, § 2;L. 2003, ch. 158, § 6;L. 2004, ch. 105, § 3;L. 2004, ch. 179, § 58; July 1.