23-674

23-674. Procedure in rendering decisions and
orders; rights of parties; representation

A. All interested parties to a hearing before the appeal tribunal or the appeals
board shall be given reasonable notice of the hearing and afforded an opportunity for
hearing. The notice shall state the time, place and issues involved but if by reason of
the nature of the proceeding the issues cannot be fully stated in advance of the hearing,
or if subsequent amendment of the issues is necessary, they shall be fully stated as soon
as practicable, and opportunity shall be afforded all parties to present evidence and
argument with respect thereto. If a party's legal or factual basis of contention is
substantially changed at the hearing, causing surprise to the opposing party, the hearing
shall be rescheduled with timely notice of the nature of the new contention unless a
waiver on the record is obtained from the party claiming surprise or the surprise could
have been avoided with due diligence. All hearings shall be recorded. The appeal
tribunal shall secure either a court reporter or an electronic means of producing a clear
and accurate record of the proceeding at the department's expense. If a party files an
application for appeal to the court of appeals pursuant to section 41-1993 and the
hearing has not yet been transcribed, the hearing shall be transcribed at the
department's expense. Informal disposition may be made of any case by stipulation, agreed
settlement, consent order or default.

B. In a hearing conducted pursuant to this section, parties may be represented in
the following manner:

1. An individual, either an employee or an employer, may represent himself or may
be represented by a duly authorized agent who is not charging a fee for the
representation.

2. An employer, including a corporate employer, may represent itself through an
officer or employee.

3. Any party may be represented by a person who is charging a fee for the
representation and who is either a duly authorized agent who was previously or is
currently retained by a party for purposes other than representation in an unemployment
compensation hearing or an attorney who is authorized to practice law in this state. An
attorney or agent representing a party before an appeal tribunal or the appeals board may
charge a fee not in excess of seven hundred fifty dollars but may request the department
to approve an additional amount which is reasonable for the services rendered. This is
limited only to an unemployment compensation appeal.

C. Notwithstanding any other law, representation of a party at a hearing conducted
pursuant to this section is not deemed to be the practice of law.

D. The tribunal and the appeals board may admit and give probative effect to
evidence which possesses probative value commonly accepted by reasonably prudent persons
in the conduct of their affairs. It shall give effect to the rules of privilege
recognized by law. It may exclude incompetent, irrelevant, immaterial and unduly
repetitious evidence. All evidence, including records and documents in the possession of
the department of which it desires to avail itself, shall be offered and made a part of
the record in the case, and no other factual information or evidence shall be considered
in the determination of the case. Documentary evidence may be received in the form of
copies or excerpts, or by incorporation by reference. The tribunal and the appeals board
may take notice of judicially cognizable facts and in addition may take notice of
general, technical or scientific facts within its specialized knowledge. Parties shall be
notified either before or during the hearing, or by reference in preliminary reports or
otherwise, of the material so noticed, and they shall be afforded an opportunity to
contest the facts so noticed. The tribunal and the appeals board may utilize their
experience, technical competence and specialized knowledge in the evaluation of the
evidence presented to them. Each party shall have the right of cross-examination of the
witnesses who testify and shall have the right to submit rebuttal evidence.

E. Every decision and order adverse to a party to the proceedings shall be in
writing or stated in the record and shall be accompanied by findings of fact and
conclusions of law. The findings of fact shall consist of a concise statement of the
conclusions upon each contested issue of fact. Parties to the proceeding shall be
notified of the decision and order in person or by mail.