NC employment agency, attorney face off in court

dranii@newsobserver.comMarch 11, 2014 

NC Primary Lt Gov

Dale Folwell

AP

— A Wake County Superior Court judge has ordered the state Division of Employment Security to continue making documents available to lawyers who rely on them to solicit new clients for at least a day or two more.

Judge Paul Ridgeway issued the order from the bench Tuesday. It keeps in place a temporary restraining order that requires the agency to make notices of appeals hearings for contested unemployment claims available on a daily basis to employment law attorneys who pay to receive them.

Ridgeway, who issued the order after a nearly four-hour hearing, indicated he intends to issue a ruling on a request for a preliminary injunction before the temporary restraining order expires at the end of the day Thursday.

“I will address it as urgently as possible,” he said. “Obviously, it’s an important issue.”

Durham attorney Monica Wilson is seeking a preliminary injunction that would require the state to continue making the hearing notices available, as it has done for a decade, while she presses her lawsuit against Employment Security.

Wilson obtained the temporary restraining order last week when the agency abruptly changed its policy and decided to make the notices available as few as three times a month, rather than daily. Wilson contends that, since many hearings are scheduled 10-to-14 days in advance, decreasing the frequency would prevent her and other employment law attorneys from contacting potential clients in time.

The state agency initially obeyed the temporary restraining order but balked on Monday after being notified by the U.S. Department of Labor that the information should be kept confidential. The Labor Department contacted the agency after reading a news article about Wilson’s lawsuit.

“We understand we have been doing it incorrectly,” agency lawyer Tom Hodges said in arguing that the state should no longer release the information.

Hodges also argued that the agency could lose its federal grant, its sole source of funding for operations, if it defied the Labor Department. Federal funding for the current fiscal year totals $57.7 million.

Attorney Jim White, who represents Wilson, argued that, despite the Labor Department’s position, the state is within its rights to make the hearing notices available because federal law clearly defers to state law regarding what constitutes a public record.

White also argued that Employment Security changed its policy on making hearing notices available in a cynical bid to prevent lawyers from representing unemployed workers at appeals hearings – and, ultimately, to put the law firms that represent them out of business.

“Because in the end, if these law firms are out of business and people don’t have affordable counsel, we can reduce the amount of unemployment that’s paid in the state,” White said.

Agency chief Dale Folwell testified that he instituted the new policy because of concerns about security because lawyers and couriers retrieve the documents from agency headquarters in Raleigh without going through security. He also said he was concerned that local lawyers who retrieve the documents have an unfair advantage over lawyers elsewhere in the state who must have the documents mailed to them.

Ranii: 919-829-4877

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