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May 24, 2019 11:51am

Key Guidance for Employers on Recent Unemployment Ruling

Last month, the Kentucky Court of Appeals issued a ruling overturning Kentucky’s long-standing practice of allowing employers to represent themselves in proceedings related to unemployment claims. The decision could have a significant impact on Kentucky employers and Kentucky’s unemployment insurance system depending on how the case evolves. If it stands, employers would be required to have legal representation at future unemployment proceedings.  

In its opinion, the Court determined that the 35-year-old state law allowing for employer self-representation in unemployment claims constitutes the “unauthorized practice of law” and violates the separation of powers provisions of the Kentucky Constitution as they relate to the judicial and legislative branches of government.   

The Kentucky Office of Unemployment Insurance has released important guidance for employers. 

On April 26, 2019, the Kentucky Court of Appeals issued a ruling pertaining to employer representation in administrative proceedings determining unemployment insurance eligibility. According to the Court’s ruling in the matter of Nichols v. Kentucky Unemployment Insurance Commission, employers would be required to have representation by an attorney during appeal hearings and proceedings held before the Unemployment Insurance Commission. The Court’s decision can be found here. The decision is not yet final because the Commission has the right to seek review by the Kentucky Supreme Court.

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.