Trial Engrossment of Amendment A00793 to House Bill 0129 P.N. 1311, Regular Session 2021-2022

A00793

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

129

Session of

2021

INTRODUCED BY COX, GLEIM, JOZWIAK, MILLARD, MIZGORSKI, MOUL,

RYAN, STRUZZI, THOMAS, ZIMMERMAN AND WHEELAND,

FEBRUARY 11, 2021

AS REPORTED FROM COMMITTEE ON LABOR AND INDUSTRY, HOUSE OF

REPRESENTATIVES, AS AMENDED, APRIL 20, 2021

AN ACT

Amending the act of December 5, 1936 (2nd Sp.Sess., 1937

P.L.2897, No.1), entitled "An act establishing a system of

unemployment compensation to be administered by the

Department of Labor and Industry and its existing and newly

created agencies with personnel (with certain exceptions)

selected on a civil service basis; requiring employers to

keep records and make reports, and certain employers to pay

contributions based on payrolls to provide moneys for the

payment of compensation to certain unemployed persons;

providing procedure and administrative details for the

determination, payment and collection of such contributions

and the payment of such compensation; providing for

cooperation with the Federal Government and its agencies;

creating certain special funds in the custody of the State

Treasurer; and prescribing penalties," in determination of

compensation, appeals, reviews and procedure, further

providing for rules of procedure AND FOR PLACE OF HEARING.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 505 of the act of December 5, 1936 (2nd

Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment

Compensation Law, is amended to read:

SECTION 1. SECTIONS 505 AND 505.1 OF THE ACT OF DECEMBER 5,

1936 (2ND SP.SESS., 1937 P.L.2897, NO.1), KNOWN AS THE

UNEMPLOYMENT COMPENSATION LAW, ARE AMENDED TO READ:

Section 505. Rules of Procedure.--(a) The manner in which

appeals shall be taken, the reports thereon required from the

department, the claimant and employers, and the conduct of

hearings and appeals, shall be in accordance with rules of

procedure prescribed by the board whether or not such rules

conform to common law or statutory rules of evidence and other

technical rules of procedure. [Rules established by the board

shall permit either party to a hearing to testify via telephone,

without regard to distance of hearing location from either

party.] The following shall apply:

(1) THE BOARD SHALL REVIEW AND REVISE ITS RULES TO MODERNIZE

THE METHODS BY WHICH HEARINGS ARE CONDUCTED. REVISED RULES

SHALL:

(I) PROVIDE FOR A TRANSITION FROM IN-PERSON AND TELEPHONE

HEARINGS TO HEARINGS CONDUCTED PRIMARILY VIA VIDEOCONFERENCE NO

LATER THAN THE EFFECTIVE DATE OF THE REGULATIONS PROMULGATED IN

ACCORDANCE WITH PARAGRAPH (2)(V).

(II) ALLOW PARTIES AND WITNESSES TO PARTICIPATE BY TELEPHONE

OR OTHER ELECTRONIC MEANS WHEN VIDEOCONFERENCING IS NOT

AVAILABLE.

(III) PROVIDE FOR THE CONTENTS OF THE HEARING NOTICE,

INCLUDING INFORMATION ON HOW TO ACCESS THE HEARING AND HOW TO

REQUEST AN IN-PERSON HEARING FOR GOOD CAUSE.

(IV) PROVIDE FOR THE PROCEDURES FOR PARTIES TO SUBMIT

EVIDENCE AND FOR THE DISTRIBUTION OF EVIDENCE DURING HEARING

PREPARATION, INCLUDING METHODS TO ELECTRONICALLY SUBMIT AND

DISTRIBUTE EVIDENCE.

(V) REQUIRE PARTIES AND WITNESSES TO ACCESS A HEARING

ACCORDING TO INSTRUCTIONS PROVIDED BY THE BOARD OR A REFEREE,

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WITHOUT THE NEED FOR THE BOARD OR REFEREE TO INITIATE CONTACT.

(VI) PROVIDE FOR IDENTITY CONFIRMATION FOR PARTIES AND

WITNESSES, INCLUDING THE SWORN AFFIRMATION OF IDENTITY, SUBJECT

TO 18 PA.C.S. § 4903 (RELATING TO FALSE SWEARING), FOR

INDIVIDUALS PARTICIPATING BY VIDEOCONFERENCE, TELEPHONE OR OTHER

ELECTRONIC MEANS.

(VII) ALLOW NOTICES OF HEARINGS TO BE PROVIDED

ELECTRONICALLY TO PARTIES AND COMMUNICATIONS RELATED TO THE

SCHEDULING OF AND ACCESS TO HEARINGS TO BE MADE BY TELEPHONE,

EMAIL OR OTHER ELECTRONIC MEANS, IF THE PARTY HAS AGREED TO

RECEIVE NOTICES AND OTHER COMMUNICATIONS BY THESE MEANS, AND

REQUIRE NOTICES OF DECISIONS AND OTHER DOCUMENTS THAT ARE

REQUIRED TO BE SENT BY MAIL TO ALSO BE SENT BY EMAIL OR OTHER

ELECTRONIC MEANS WHENEVER POSSIBLE.

(VIII) ALLOW A PARTY OR WITNESS IN AN IN-PERSON HEARING TO

PARTICIPATE IN THE HEARING BY VIDEOCONFERENCE, TELEPHONE OR

OTHER ELECTRONIC MEANS, UNLESS GOOD CAUSE UNDER PARAGRAPH (4)

NECESSITATES THAT THE PARTY OR WITNESS APPEAR IN-PERSON.

(2) THE BOARD SHALL IMPLEMENT REVISED RULES AS FOLLOWS:

(I) THE BOARD SHALL SOLICIT PUBLIC COMMENTS ON THE CREATION

OF TEMPORARY RULES FOR HEARINGS. THE PUBLIC COMMENT PERIOD SHALL

BE AT LEAST FIFTEEN DAYS AND NOT MORE THAN THIRTY DAYS. WITHIN

THIRTY DAYS OF THE EFFECTIVE DATE OF THIS PARAGRAPH, THE BOARD

SHALL SUBMIT NOTICE OF THE PUBLIC COMMENT PERIOD TO THE

LEGISLATIVE REFERENCE BUREAU FOR PUBLICATION IN THE PENNSYLVANIA

BULLETIN.

(II) WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS

PARAGRAPH, THE BOARD SHALL SUBMIT NOTICE OF TEMPORARY RULES,

CREATED IN ACCORDANCE WITH PARAGRAPH (1) TO THE LEGISLATIVE

REFERENCE BUREAU FOR PUBLICATION IN THE PENNSYLVANIA BULLETIN.

A00793 - 3 -

(III) TEMPORARY RULES SHALL TAKE EFFECT NO LATER THAN THIRTY

DAYS AFTER THE PUBLICATION OF NOTICE UNDER SUBPARAGRAPH (II).

(IV) THE BOARD SHALL PROPOSE REGULATIONS TO REVISE RULES

UNDER PARAGRAPH (1) NO LATER THAN ONE YEAR AFTER THE EFFECTIVE

DATE OF THIS PARAGRAPH.

(V) THE BOARD SHALL PROMULGATE REGULATIONS TO REVISE RULES

UNDER PARAGRAPH (1) NO LATER THAN THREE YEARS AFTER THE

EFFECTIVE DATE OF THIS PARAGRAPH.

(VI) TEMPORARY RULES SHALL REMAIN IN EFFECT UNTIL THE

EFFECTIVE DATE OF REGULATIONS PROMULGATED UNDER SUBPARAGRAPH

(V).

(1) (3) Hearings shall be conducted via telephone ,

VIDEOCONFERENCE OR OTHER ELECTRONIC MEANS unless the referee

determines that good cause exists to hold an in-person hearing.

(2) (4) A party may request an in-person hearing in writing

to the department within ten days of the date of the hearing

notice FOR GOOD CAUSE . The hearing notice shall include notice

of the procedure to request an in-person hearing.

(3) (5) For the purposes of this subsection, good cause

shall include any of the following circumstances:

(i) A party to the hearing , OR a witness or other

participant has a physical, mental or intellectual disability,

which would impose an undue hardship on the individual if the

hearing is conducted via telephone , VIDEOCONFERENCE OR OTHER

ELECTRONIC MEANS .

(ii) A party to the hearing , OR a witness or other

participant requires an interpreter, and the department cannot

reasonably provide interpretation services via telephone ,

VIDEOCONFERENCE OR OTHER ELECTRONIC MEANS .

(iii) A party to the hearing offers compelling evidence that

A00793 - 4 -

conducting the hearing via telephone , VIDEOCONFERENCE OR OTHER

ELECTRONIC MEANS would create a significant advantage for an

opposing party.

(IV) A PARTY TO THE HEARING AFFIRMS, SUBJECT TO 18 PA.C.S. §

4904 (RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES), THAT

THE PARTY IS UNABLE TO PARTICIPATE IN THE HEARING VIA TELEPHONE,

VIDEOCONFERENCE OR OTHER ELECTRONIC MEANS.

(6) THE DEPARTMENT SHALL, WHEREVER POSSIBLE, MAKE ATTEMPTS

TO ASSIST THE BOARD IN FACILITATING ACCESS TO HEARINGS HELD VIA

TELEPHONE, VIDEOCONFERENCE OR OTHER ELECTRONIC MEANS FOR PARTIES

AND WITNESSES WHO REQUEST ASSISTANCE IN GAINING ACCESS TO THE

TECHNOLOGY NECESSARY TO PARTICIPATE IN A HEARING.

(7) THE FOLLOWING SHALL APPLY:

(I) ANY PROVISION OF 34 PA. CODE CH. 101 (RELATING TO

GENERAL REQUIREMENTS) THAT IS INCONSISTENT WITH THIS SUBSECTION,

OR WITH TEMPORARY RULES OR REGULATIONS PROMULGATED UNDER

PARAGRAPH (2), IS ABROGATED.

(II) TEMPORARY RULES FOR HEARINGS ISSUED UNDER PARAGRAPH (2)

SHALL NOT BE SUBJECT TO ANY OF THE FOLLOWING:

(A) SECTION 612 OF THE ACT OF APRIL 9, 1929 (P.L.177,

NO.175), KNOWN AS "THE ADMINISTRATIVE CODE OF 1929."

(B) SECTIONS 201, 202, 203, 204 AND 205 OF THE ACT OF JULY

31, 1968 (P.L.769, NO.240), REFERRED TO AS THE "COMMONWEALTH

DOCUMENTS LAW."

1980 (P.L.950, NO.164), KNOWN AS THE "COMMONWEALTH ATTORNEYS

ACT."

(D) THE ACT OF JUNE 25, 1982 (P.L.633, NO.181), KNOWN AS THE

"REGULATORY REVIEW ACT."

(b) When the same or substantially similar evidence is

A00793 - 5 -

relevant and material to the matter in issue in applications and

claims filed by more than one individual or in multiple

applications and claims filed by a single individual the same

time and place for considering each such application and claim

may be fixed, hearings thereon jointly conducted, a single

record of the proceedings made and evidence introduced with

respect to any application or claim considered as introduced

with respect to all of such applications or claims: Provided,

That in the judgment of the board or referee having jurisdiction

of the proceeding such consideration will not be prejudicial to

any party.

SECTION 505.1. PLACE OF HEARING.--[HEARINGS] IN-PERSON

HEARINGS ON APPEALS SHALL BE HELD WITHIN THE COUNTY IN WHICH THE

EMPLOYE REGULARLY REPORTS FOR WORK. SUCH HEARINGS MAY BE HELD AT

THE COUNTY SEAT OR AT SUCH OTHER SUITABLE PLACE OR PLACES WITHIN

THE COUNTY AS THE BOARD SHALL DESIGNATE, AND WHEN ALL OF THE

PARTIES TO ANY APPEAL AND THE BOARD AGREE, SUCH HEARINGS MAY BE

HELD AT ANY SUITABLE PLACE.

Section 2. This act shall take effect in 60 days.

Section 1. Section 505 of the act of December 5, 1936 (2nd

Sp.Sess., 1937 P.L.2897, No. 1), known as the Unemployment

Compensation Law, is amended to read:

Section 505. Rules of Procedure.--(a) The manner in which

appeals shall be taken, the reports thereon required from the

department, the claimant and employers, and the conduct of

hearings and appeals, shall be in accordance with rules of

procedure prescribed by the board whether or not such rules

conform to common law or statutory rules of evidence and other

technical rules of procedure. [Rules established by the board

shall permit either party to a hearing to testify via telephone,

A00793 - 6 -

without regard to distance of hearing location from either

party.] The following apply:

(1) The board shall review and revise its rules to permit a

party to a hearing or a witness to testify via telephone,

videoconference or other electronic means, without regard to

distance of hearing location from the parties, at the request of

one or more parties when one of the following applies:

(i) The parties consent to the receipt of testimony via

telephone, videoconference or other electronic means.

(ii) The party or witness is reasonably unable to testify in

person.

(iii) Telephone, videoconference or other electronic means

of participation are more accessible to a party or witness.

(2) In determining whether a party or witness may testify

via telephone, videoconference or other electronic means under

paragraph (1), the referee shall consider factors that would

make in-person participation inaccessible or less accessible

including issues related to:

(i) Transportation.

(ii) Lack of suitable childcare.

(iii) Existing employment or business responsibilities.

(iv) The health of the party or witness or the health of a

family member under the care of the party or witness.

(3) The board shall review and revise its rules to modernize

the methods by which testimony permitted under paragraph (1) may

be taken. Revised rules shall:

(i) Provide a transition from testimony via telephone to

testimony via videoconference no later than the effective date

of the regulations promulgated in accordance with paragraph (4)

(ii).

A00793 - 7 -

(ii) Allow parties and witnesses to participate via

telephone or other electronic means when videoconferencing is

not available.

(iii) Provide for contents of the hearing notice, including

information on how to request to testify via telephone,

videoconference or other electronic means.

(iv) Provide instructions to parties and witnesses permitted

to testify via telephone, videoconference or other electronic

means in accordance with paragraph (1) on how to participate via

telephone, videoconference or other electronic means, which

shall include:

(A) Procedures to access and participate in the hearing via

telephone, videoconference or other electronic means without the

need for the board or referee to initiate contact.

(B) Procedures to submit and distribute evidence, including

methods to electronically submit and distribute evidence.

(v) Provide for identity confirmation for parties and

witnesses, including sworn affirmation of identity, subject to

18 Pa.C.S. § 4903 (relating to false swearing), participating

via telephone, videoconference or other electronic means.

(vi) Unless otherwise required by Federal or State law, any

notice or communication to a party or witness shall be mailed to

the last known post office address or transmitted via telephone,

email or other electronic means, as designated by the recipient.

(4) The board shall implement rules as follows:

(i) The board shall propose regulations to revise rules

under this subsection no later than one year after the effective

date of this paragraph.

(ii) The board shall promulgate regulations to revise rules

no later than two years after the effective date of this

A00793 - 8 -

paragraph.