Kentucky court rules employers must have representation in unemployment insurance proceedings

On April 26, the Kentucky Court of Appeals ruled that employers can no longer use a non-lawyer representative in unemployment proceedings, saying it violates the separation-of-powers provisions of the Kentucky Constitution.

This decision is among the broadest case law decisions, reversing previous case law and imposing additional costs on employers in Kentucky.

The court determined that its decision would be applied prospectively and remanded the case before it to the Kentucky Unemployment Insurance Commission for proceedings where attorney representation would be required.

The business community has actively challenged similar case law in Ohio, Pennsylvania, and Illinois arguing that requiring attorney representation in unemployment insurance administrative hearings is inconsistent with due process. In many cases, businesses say the cost of representation by an attorney may exceed the amounts at issue.

In response to the ruling, the Kentucky Office of Unemployment Insurance gave the following statement saying that while the case is being appealed, there will be no change to the current practice:

“The Court’s decision, if it becomes final, will affect employers as it invalidates the state’s current statute allowing non-attorneys to represent an employer in administrative proceedings related to unemployment insurance claims. The Kentucky Unemployment Insurance Commission is taking the appropriate steps to seek the Kentucky Supreme Court’s review of the decision. In the meantime, there will be no changes to the current practice of allowing representation by non-attorneys in these administrative proceedings.”

The full decision can be found here: http://opinions.kycourts.net/coa/2017-CA-001156.pdf

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