Social Welfare Law Commons^™

No Leave To Grieve: How Misfit Frameworks And America's "Grief Tsunami" Require Better Bereavement Policy, Katherine S. Hanson

Marquette Benefits and Social Welfare Law Review

The COVID-19 pandemic fueled America’s recent death surge: 2021 has become the deadliest year on record in the United States. Scholars and commentators claim that the American workplace re-mains unprepared for the impending “grief tsunami” in the wake of such pervasive loss. Likewise, American law is ill-equipped for workplace grief. Bereavement, while medically “normal,” lacks a substantial foothold in workplace benefits and in the law. Currently, organizations bear the burden of developing their own policies—and where available, these policies remain insufficient to accommodate the myriad logistical and emotional complexities associated with the loss of a loved one. In the event …

Puerto Rico's Second-Class Statehood: The Impact Of Restricted Access To Federal Public Benefits Programs On Puerto Rico's Economic Recovery, Evette Ocasio

DePaul Journal for Social Justice

No abstract provided.

For Him Who Shall Have Borne The Battle: How The Presumption Of Competence Undermines Veterans’ Disability Law, Chase Cobb

Washington and Lee Journal of Civil Rights and Social Justice

When the Veterans Administration denies a veteran’s claim for disability benefits it often does so based on the opinion of an expert medical examiner—usually a doctor or a nurse. But under a recent federal rule, the VA carries no burden of laying a foundation for the expert medical examiner’s opinion—no burden of establishing the quality of the expert’s education or the depth of her experience; no burden of establishing the scope of the expert’s training or the soundness of her reasoning. Instead, the VA may simply presume the qualifications of its own expert examiner and throw the burden on the …

Supreme Court, New York County, Khrapunskiy V. Doar, Daphne Vlcek

Touro Law Review

No abstract provided.

Note: Flatford V. Chater: No Absolute Due Process Right To Subpoena A Physician Providing Post-Hearing Evidence At A Social Security Disability Hearing, James L. Hoyle

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Note: Bush V. Shalala And Pratts V. Chater: Social Security Disability Ping Pong And Contrasting Approaches In The Second Circuit: The Central Role Of An Active Alj, Jorge J. Vera Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

Gideon Meets Goldberg: The Case For A Qualified Right To Counsel In Welfare Hearings, Stephen Loffredo, Don Friedman

Touro Law Review

In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean …

Tortious Interference With The Expectancy Of Entitlement Benefits, Paul Caritj

University of Michigan Journal of Law Reform

This Note proposes a new tort to address employers' and their agents' increasing abuse of the Unemployment Insurance appeals process, which interferes with employees' expectancy of entitlement benefits. Though existing state Unemployment Compensation statutes sanction both unemployed workers claiming benefits and employers for making fraudulent statements, these provisions approach the issue of fraud too narrowly to combat this growing problem. Meanwhile, no existing remedy properly compensates victims of this sort of abuse, adequately deters abusive behavior by scaling the penalty to the harm, and is accessible to economically disadvantaged plaintiffs. As well as providing an analysis of the specific problem …

Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch

University of Michigan Journal of Law Reform

The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been a …

Whatever Happened To G.I. Jane?: Citizenship, Gender, And Social Policy In The Postwar Era, Melissa E. Murray

Michigan Journal of Gender & Law

In this Article, it is argued that the GI Bill is consistent with the social welfare policies of the New Deal period, in particular the Social Security Act of 1935, and so should be examined within the analytical framework established by scholars like Linda Gordon and Theda Skocpol in their studies of the Social Security Act's social welfare programs. Although the Bill is gender-neutral on its face, it was framed by normative assumptions about military participation and work that ensured that it was socially understood to benefit male veterans.

Unemployment Compensation: Continuity, Change, And The Prospects For Reform, Jerry L. Mashaw

University of Michigan Journal of Law Reform

The Symposium proceedings for which this Introduction provides an overview had a decidedly reformative impulse and focus. Authors and discussants came together not just to ruminate about the future, but to grapple with concrete problems that are both a legacy of the past and the product of relatively recent changes. Reformers found much to criticize and to suggest, whether their focus was on stable structures or newly emerging issues. The purpose of this Introduction is to synthesize the views expressed and to reflect on them from the perspective of a student of benefits administration, but one not expert in the …

Unemployment Compensation In A Time Of Increasing Work-Family Conflicts, Martin H. Malin

University of Michigan Journal of Law Reform

The demographics of the workplace have changed substantially since the nation's unemployment insurance system was enacted in the 1930s. The number of dual-earner and single-parent families has increased dramatically. Yet, the basic requirements for eligibility for unemployment compensation have not varied much since their initial enactment. In this Article, Professor Malin explores the availability of benefits to individuals who lose their jobs because of conflicts between work and family responsibilities and to unemployed individuals whose family responsibilities restrict the types of jobs that they are able to take. He finds that the states have differed greatly concerning the degree to …

A Case For Pregnancy-Based Unemployment Insurance, Mark R. Brown

University of Michigan Journal of Law Reform

Professor Brown argues that unemployment insurance laws should be amended to provide coverage to otherwise eligible, pregnant claimants. Under current law, women who quit because of pregnancy are either disqualified from receiving unemployment benefits altogether or qualify only after childbirth. Those who are fired, meanwhile, often either cannot prove the motivation for their discharge or discover that they are disqualified because of their unavailability for work. Professor Brown uses a case study to illustrate the problems posed by pregnancy and unemployment insurance. He proposes model legislation that extends coverage to all pregnant claimants who temporarily separate from their employment.

Procedural Reform In The Unemployment Insurance System, Marla D. Clark, Jesse S. Reyes

University of Michigan Journal of Law Reform

In the 1990s, we have witnessed a political movement toward smaller governament and reduced federal funding for social benefits programs. At the same time, evidence suggests that the unemployment insurance (UI) system as it works today still may not benefit all of its intended recipients. The need for improved UI services and the scarcity of resources available to meet this need create a tension between political pressures and constitutional considerations of fairness and due process. While constitutional considerations always override political pressures, the real issue is where to strike the appropriate balance between fundamental fairness and economic reality.

Clarifying Conditions For Nonmonetary Eligibility In The Unemployment Insurance System, Amy B. Chasanov

University of Michigan Journal of Law Reform

This Article explores the nonmonetary eligibility requirements that unemployed individuals must meet in order to receive Unemployment Insurance (UI) benefits. These eligibility criteria, which are decided by the states, vary significantly. Because states often have relatively vague statutes regarding their specific nonmonetary eligibility criteria, state rules, regulations, and case law interpret these statutes and better define the criteria. The author discusses the results of a recent survey of UI nonmonetary eligibility criteria which provides information on the status of criteria across the nation than has been available previously. The author concludes that policy reform in this area should be focused …

Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas

University of Michigan Journal of Law Reform

Emsellem and Halas posit that claimants need representation at unemployment compensation proceedings. Evaluating statistical and survey data, the authors find that representation significantly improves a claimant's chance of receiving unemployment compensation. Improved recovery rates, they argue, benefit not only claimants but also society. The authors analyze the factors inducing employer appeals of compensation awards. They also review the systemic issues that accompany the provision of representation to those unable to afford it or to those unfamiliar with the unemployment compensation process. Finally, the authors present models of expanding claimant representation.

Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan

University of Michigan Journal of Law Reform

The premise of this Essay is that unemployment compensation appeals hearings take the form of inquests rather than follow the traditional adversarial model. Given this, the hearing officer carries a special burden of ensuring that due process is afforded. State review systems should structure the process so that the difference, along with the unique burden, is made explicit.

Are Non-English-Speaking Claimants Served By Unemployment Compensation Programs? The Need For Bilingual Services, Mary K. Gillespie, Cynthia G. Schneider

University of Michigan Journal of Law Reform

This Article examines the need for interpreters and translated written materials in unemployment compensation programs for those claimants who do not read, understand, or speak English well or at all. Thousands of employable persons in the United States do not read, understand, or speak English. These persons may be unable to receive unemployment compensation benefits or may receive delayed benefits solely because they are unable to comprehend English. The authors examine how ten states with substantial populations of limited-English-proficient speakers have provided these persons access to their state's unemployment compensation programs. The authors find varying practices among the states in …

Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer

University of Michigan Journal of Law Reform

As the executive branch shrinks and reduces expenditures, its adjudicative functions adjust to the new fiscal reality. Telephone hearings are, therefore, increasingly being used in order to control costs. This Article examines the impact of telephone hearings on the due process elements of unemployment compensation 'fair" hearings. The Authors review the applicable federal and state law and find that there is no absolute bar to using the telephone to conduct administrative hearings. They test the empirical effect of the telephone on hearings in California and Maine. Their analysis of hundreds of hearings indicates that parties to telephone hearings are less …

The Law And Politics Of The Enforcement Of Federal Standards For The Administration Of Unemployment Insurance Hearings, John C. Gray Jr., Jane Greengold Stevens

University of Michigan Journal of Law Reform

Unemployment insurance claimants are entitled to have state unemployment programs administered in accordance with federal standards, which include the provision of prompt and fair hearings for claimants if their applications for benefits are denied. Violations of these rights are widespread, but the United States Department of Labor's Unemployment Insurance Service has never brought a formal proceeding to enforce the federal standards of administration. This Article explains why enforcement of the federal standards is needed and why it has not been provided and suggests methods by which advocates for claimants can seek to enforce federal standards in the face of this …

Unemployment Compensation For Employees Of Educational Institutions: How State Courts Have Created Variations On Federally Mandated Statutory Language, Maribeth Wilt-Seibert

University of Michigan Journal of Law Reform

Over the past sixty years, Congress has enacted a system of unemployment insurance for workers who have become unemployed through no fault of their own. While the Social Security Act of 1935 created much of the statutory framework for this system of insurance, Congress did not include employees of educational institutions within its system of unemployment insurance until 1970, when it amended the Federal Unemployment Tax Act of 1954 (FUTA). Since Congress enacted those amendments, each of the fifty states has passed legislation that substantially conforms to the FUTA amendments. Yet, despite the uniformity of state statutory language, state appellate …

Interstate Claims: Their History And Their Challenges, Mark D. Esterle

University of Michigan Journal of Law Reform

This Article provides an overview of the cases and statutes relating to interstate claims for unemployment compensation. The author suggests that the current federal statutes and regulations are inadequate on the grounds that they are ambiguous, lead to inconsistent results in different states, and may fail to ensure due process in claims determinations. The author highlights these problems with regard to interstate fact finders, attorney representation, witness subpoenas, and access to judicial review. Finally, he points to regulations that cover interstate unemployment compensation claims by federal employees and military servicemembers as models for new regulations of uniform application.

Federal Law Requirements For The Federal-State Unemployment Compensation System: Interpretation And Application, Gerard Hildebrand

University of Michigan Journal of Law Reform

The benefits provided to states by federal unemployment compensation law are conditioned on meeting several requirements. This Article examines some of these requirements, how they came about, how the United States Department of Labor and the federal courts have interpreted them, and how conflicts between the states and the federal government have been resolved. The Article concludes that certain types of requirements work best within this federal-state system.

Introduction: Unemployment Compensation Eligibility, Cheryl A. Leanza

University of Michigan Journal of Law Reform

This Introduction will review the Symposium sessions which dealt with eligibility issues. Many of the statements made by the panel participants and audience members highlighted the contemporary problems of a system established over sixty years ago. Thus, this Introduction seeks to record the main points made during these sessions in an effort to contribute to the debate regarding reform of the unemployment compensation system.

Down And Out In Weslaco, Texas And Washington, D.C.: Race-Based Discrimination Against Farm Workers Under Federal Unemployment Insurance, Laurence E. Norton Ii, Marc Linder

University of Michigan Journal of Law Reform

This Article explains how federal law excludes half of the nation's farm workers from the unemployment insurance (UI) system. It describes how even those fortunate enough to work in covered employment often lose their benefits when employers use crew leaders who fail to report wages and pay unemployemnt insurance taxes. This discriminatory treatment of farm workers is then shown to be racially motivated and to have a disproportionate impact on the non-White majority of agricultural workers. Today's partial exclusion of these workers from UI isa legacy of Congress's complete exclusion of farm workers from all New Deal legislation intended to …

Introduction: The Federal-State Partnership Of Unemployment Compensation, Richard W. Fanning Jr.

University of Michigan Journal of Law Reform

Federal and state governments jointly administer the unemployment compensation system. Many participants at the Symposium addressed this aspect of unemployment compensation, and it is the topic of the four Articles that follow. This Introduction discusses three broad areas in order to provide a framework for issues concerning federal-state relations in unemployment compensation. This Introduction also will highlight some of the points made by Symposium participants in response to the ideas expressed in the following Articles. Part I addresses how the federal-state partnership operates and defines areas of responsibility for both the states and the federal government. Part I also discusses …

Timeliness In The Unemployment Compensation Appeals Process: The Need For Increased Federal Oversight, Sharon M. Dietrich, Cynthia L. Rice

University of Michigan Journal of Law Reform

Anecdotal evidence suggests that during the recession of 1989-1992, unemployment insurance claimants suffered unprecedented delays in the receipt of their benefits. Advocates reported that claimants who were initially denied benefits suffered delays of months, and even years, before the state administrative appeals process resolved their claims. Although federal law establishes timeliness standards for processing appeals, many states did not meet those standards. In this Article, the Authors discuss and analyze the results of a nationwide review of state compliance with federal timeliness standards. They then assess the state and federal responses to the increased number of unemployment insurance claims and …

Equal Protection

Touro Law Review

No abstract provided.

Public Relief

Touro Law Review

No abstract provided.