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As the 1984 New York Times article shows, unemployment is not a new issue, but it is proving to be an especially difficult challenge in 21st-century New Mexico.
We lag behind our Southwest region neighbors in economic growth and our young and best are seeking opportunities elsewhere in ever-greater numbers. When thousands in Albuquerque line up for a handful of low-paying retail jobs, who can blame them?
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“The shock of unemployment becomes a pathology in its own right.” - “Being Let Go,” N.Y. Times (1984) |
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Those lucky enough to have a steady job are not spared the specter of unemployment. Businesses fail, budgets are cut and programs are discontinued daily in this uncertain economy. Even in the best of times, a difference of opinion, performance issues, illness or, as we examined recently, even being too attractive for your boss to resist, might land you in the unemployment line.
The state Department of Workforce Solutions (www.dws.state.nm.us) provides job-seeker services and adjudicates unemployment income claims at an administrative level. DWS does not represent the interests of either the employer or employee but rather referees their disputes.
This system provides an initial determination by the department. Either the employee or employer can appeal that determination, and a hearing is provided before an administrative hearing officer, which is essentially a limited judicial function. An appeal to the department secretary may be made by either party, leading to a final administrative ruling. The next stop may be the courthouse.
Section 51-1-8, New Mexico Statutes Annotated and Rule 1-077, New Mexico Rules Annotated provide for judicial review of Workforce Solutions administrative decisions by the District Court for the county in which the unemployed person lives. The request for such an appeal must be filed with the court within 30 days from the date of the decision, not the date it is received. This points up how important it is for claimants to notify DWS of all address changes since department mail is not generally forwarded by USPS. In initially filing the appeal, the party must set out a statement of issues including a copy of Workforce Solutions’ final decision and a “short recitation of all facts relevant.”
As with judicial review of administrative decisions in general, the court’s review of an unemployment claim is limited in scope. It is not a trial de novo, or a new trial, where all issues are litigated again. Instead, the District Court judge performs a whole record review, meaning the judge reviews the documentary and testimonial record developed at Workforce Solutions to determine the propriety of its decision. The judge cannot reweigh the evidence and does not substitute his or her opinion for that of the administration simply because the judge may not agree with the decision or would have decided the issues another way. Instead, the court answers three questions: 1) was the administrative decision fraudulent, arbitrary or capricious; 2) was the administrative decision supported by substantial evidence in the record; and 3) was the decision within the administrative agency’s scope of authority?
To be arbitrary and capricious, the decision must defy logic and show a failure to consider and balance the evidence in any reasonable manner. Substantial evidence to support a decision means there is enough evidence in the record to reasonably support a conclusion on the issue at hand. DWS’ scope of authority is set by statute and issues might exist where, for example, a decision included determinations unrelated to unemployment compensation entitlement. Unemployment compensation appeals are given priority over all other civil cases. If a party is not happy with the District Court judge’s decision, they may ask for further review by the Court of Appeals, but such permissive appeals are discretionary and rarely granted.
If you have an unemployment insurance claim, contact the Department of Workforce Solutions. Make sure you keep your address information current throughout the process as mail will not be forwarded. As a parent who watched my college graduate son’s painful months-long struggle to find an entry-level job, I don’t know how to resolve our perennial inability to create meaningful employment opportunities in our Land Of Enchantment. Some suggest solutions as simple as cutting tax rates and as organically complex as reducing our dependence on federal funding. You can “Judge for Yourself” but I’d like to see my kids have a reason to stay here. Wouldn’t we all?
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.
