Labor & Employment Law

Employer rep at unemployment hearing was not practicing law

(Grafner v IDES, IllCtApp, (August 14, 2009), is an important state appellate case. An employee and a nonattorney representative (an outside provider of unemployment-related services to employers) did not engage in the unauthorized practice of law by appearing on an employer?s behalf and participating at an administrative hearing regarding a former employee?s eligibility for unemployment compensation benefits.

The court rejected the former employee?s claim that since a nonattorney provided evidence, argued, examined and cross-examined witnesses and made objections, the entire proceeding, which resulted in a ruling denying her unemployment benefits, should be rendered null.

?Evaluating the character of the acts performed here by the nonattorney representative,? the court found ?a lawyer?s training for their proper performance was not required and the nature of the hearing was not akin to the formality of proceedings occurring in a court of law.?

The appeals court did not hold that a nonattorney?s actions during such a hearing could never constitute the unauthorized practice of law, however; only that the actions undertaken here did not.

Mitchell H. Rubinstein

NYPPL Comment: Section 75.2 of the Civil Service Law, in pertinent part, provides that the hearing officer ?holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf.?

Full post as published by New York Public Personnel Law on August 25, 2009 (boomark / email).