When Justice Ain’t So Blind

Last April a firestorm erupted when it was disclosed that Governor LePage had met privately at the Blaine House with hearing officers who decide whether unemployed Mainers are entitled to receive weekly benefits.  According to news accounts, the Governor told the hearing officers that they were deciding too many cases in favor of employees.  Afterwards, some of the hearing officers anonymously indicated that they felt that they had been bullied by the Governor.

Following the reports of the meeting, in what apparently was an unprecedented action, a lawyer and auditors from the federal Department of Labor (which pays the salaries of the hearing officers) descended upon Maine in May to investigate the controversy.   To date, the Labor Department has not taken any further action, at least publicly.

Now the smoldering controversy appears ready to reignite.  On Thursday, September 12, a blue ribbon panel appointed by the Governor, including former Maine Supreme Court Chief Justice Dan Wathen, and two representatives each from the employee and employer community, are slated to hear testimony from noon to 7 PM at the Cross Office Building.  Although the Governor claims that he received “hundreds and hundreds” of complaints about the unemployment hearing process, in fact a freedom of information act (FOIA) request disclosed only 30 such complaints.  Which raises the question, is there a problem here, or is this a solution in search of a problem? 

No doubt this Thursday the Blue Ribbon panel will hear from many business owners complaining about the process.  There probably won’t be many employees testifying (although I encourage them to do so).  Employees tend (hopefully) to be one-time consumers of benefits, while employers who layoff or terminate employees are far more likely to be repeat customers.  And of course, employees who are working aren’t likely to have the time to travel to Augusta.

Perhaps there are real procedural problems with the unemployment benefits process; if so, those problems need to be heard and if appropriate, fixed.  But the Governor’s fixation on the fact that too many employees are prevailing on unemployment claims is NOT one of those problems.  The unemployment system was created in 1935 together with Social Security as part of the social safety net to protect workers who lose their jobs through no fault of their own.  Accordingly, the Act is designed to be remedial in nature and FAVOR the prompt granting of benefits to workers so they can avoid the devastating consequences of unemployment.  During the most recent recession, there was a huge increase in claims here and nationally; the prompt grant of benefits protected workers against hunger and homelessness like that which occurred in the Great Depression when no such program existed.  For that reason, employees are supposed to and do in fact win most claims initially.

But when employers challenge the grant of unemployment benefits, the story becomes much different.  When review is requested by a hearing officer, last year employers won 35% of the time; employees won 29% of the time.  For the last 10+ years, employers and employees have won at about equal rates.  During that same period of time, employers who appealed to the three-member Unemployment Board have won far more often than not. 

While the numbers would suggest that, in fact, the process is not so tilted in favor of employees as the Governor believes, the real question isn’t who is winning and who is losing; the question is whether the process is fair and whether the law as written is being applied properly.  And here, the Governor’s thinly-veiled attempt to put his thumb on the scales of justice is what is really wrong. 

There’s a reason the symbol for the American justice system is of Lady Justice blindfolded.  Because when justice ain’t blind, there can be no justice at all.  

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