"The problem was this: none of us knew what the hell we were doing when we started to hear these cases," said Terrell, a lawyer with 40 years of experience hired as a contract judge specifically tohelp with the backlog.
The week and a half of training he had on unemployment law was insufficient. But worse, he was immediately given a heavy workload despite his lack of familiarity with unemployment law.
"We as lawyers have an ethical responsibility to not do something that we are not competent in," he said. "And here we were deciding the fates of people under laws we didn't fully understand, being told to make sure we decide six in a day. Don't get behind."
His experience was also shared by other lawyers hired by the Indiana Department of Workforce Development to help with a backlog so significant that people have had to wait as long as a year to receive an unemployment hearing.
Lawyers hired with little or no experience in unemployment law are typically required to decide anywhere from about 28 to more than 30 cases a week. That workload drove troubling monthly resignations among administrative law judges who became burned out or felt unprepared.to decide the fates of tens of thousands of Hoosiers.
And that affects people such as Penny Garrett.
For more than a year, Garrett held her breath as benefits that snowballed to $25,000 hung in the balance. After losing her job last year, she fought for her benefits in the state's appeal process that slowed to a near halt and continuously contradicted itself.
"There's no reason why anybody should have to wait six months to have an appeal," she said. "That's ridiculous."
TheDepartment of Workforce Development acknowledged the high turnover, short training period and high workload. But, officials said the agency had to make adjustments to accommodate the overwhelming number of applications and appeals during the pandemic and is doing its best to retain judges.
The department also attributed the attrition in part of the competitive market for workers as resignations are at an all-time high in Indiana and across the country.
"There's a real fight for talent going on," said Regina Ashley, chief unemployment insurance and workforce solutions officer at the state agency.
The department loses people who leave for better opportunities, pay or more flexibility.
"This is pretty fast-paced, it's pretty intense, and the work is really the priority," she said.
When Unemployment Judges Get it Wrong
Garrett was first approved and then denied for unemployment when she lost her $13-an-hour job signing people up for Medicaid last summer, the start of one of the toughest times of her life.
"I was suicidal," Garrett said.
She lives with her daughter, a disabled veteran, and her grandson.
"All she was getting was $142 a month, and I was getting nothing," Garrett said. "The only thing that saved us from losing our apartment was the moratorium."
At her February appeals hearing, a judge agreed with her employer that she was fired for a good reason. Employers can fight to keep people from receiving unemployment if they can show the employee was at fault for losing their job.
Unable to find a job because of her worsening health problems, Garrett appealed the judge's decision.
The unemployment judge was overruled after the Review Board, a panel of appointed attorneys who reconsider decisions made by unemployment judges, found the judge had made an error.
The board said the judge improperly summarized a portion of the company's policy and the employer's testimony to make her decision. It ordered another hearing. She was eventually given her benefits this August, more than a year after she lost her job and applied for unemployment.
Garrett's long and error-ridden experience with the appeals process, which spit out conflicting decisions throughout the course of a year, is not uncommon.
Michael Dalrymple, a lawyer who represents employees and employers in unemployment court, said he has heard from potential clients that their hearings were rushed by unemployment judges eager to get through them.
"They didn't feel like they were ever allowed the opportunity to tell their story," he said. "That upsets me. I understand the pressure, but it's not appropriate to short shrift applicants."
The pressure to wrap up hearings in 20 or 30 minutes, he said, is causing mistakes in the court decisions
Those represented by lawyers typically fare better, but the vast majority of unemployment applicants can't afford lawyers to navigate the appeals process.
The pressure to churn out decisions is a serious problem, Dalrymple said, because unemployment court is often where initial mistakes are corrected.
Dalrymple said he's found numerous factual errors in the decisions made by the Department of Workforce Development, particularly in letters sent to people asking for benefits back.
"It's relatively easy to prove, but it does take a little bit of time," he said. "You have to go through the letter and prove that the dates are wrong, prove that the dollars and hours are wrong and that they're not countable income."
Backlog Problems
The Department of Workforce Development said it would take about half a year to dig out of the backlog and bring the appeals workload back to pre-pandemic levels. Ashley said the agency currently has about 10,000 regular unemployment appeals cases and 6,000 federal pandemic unemployment assistance cases.
However, two state employees familiar with the backlog told IndyStar that the estimate is optimistic. The backlog, they contend, might take another year.
According to a federal Department of Labor database, which lags, there are about 13,411 state unemployment cases in September in Indiana and about half will still take from at least four months to more than a year to resolve. Michigan, in comparison, has 3,922 cases that month. Kentucky, similarly, has 4,572. Illinois has 6,423.
The state's unemployment agency pushed back against the data, noting that federal tracking doesn't include pandemic unemployment assistance appeals cases and may have inaccuracies dependent on the state agencies reporting them.
When the pandemic hit the United States and forced massive business closures and job losses across the country, the federal government started a pandemic unemployment program that vastly expanded the number of Americans eligible for benefits.
The Department of Workforce Development was overwhelmed by a deluge of unemployment applications to its state program as well as the subsequent newly-created federal pandemic unemployment assistance.
At its peak, hundreds of thousands of Hoosiers submitted applications for unemployment benefits in the summer of 2020. The already thinly-staffed agency had to scale up quickly and hired contractors to answer phones, and pulled administrative law judges to investigate initial claims.
The department stands by that decision, which it said was necessary to help with the workload. Ashley said the department told four full-time judges to work on claims investigations and asked other judges to help out with overtime hours.
But, the decision to divert judges cost them. Appeals cases began to pile up.
"For some reason, they just didn't seem to really see what was coming until the tidal wave kind of washed over the whole department," said a senior employee at the department who is not authorized to speak to the media. IndyStar has agreed not to name the employee because of fear of workplace retaliation.
By January, there were nearly 21,800 state unemployment appeals in the backlog, according to federal data.
The long wait is just one of the problems with the appeals system. Sometimes mail notices about hearings and appeals come days before the court date, providing claimants little time to prepare, or even worse, after an important deadline has passed.
When Amanda Byers lost her job in February, her employer fought to block her unemployment after she was approved. Because employers pay a portion of unemployment, they will contest benefit payments if they believe the employee quit or was fired for a good reason.
Story continues below the gallery.
She received a letter about her court date in October and only had two business days to prepare her documents before her hearing.
"This was such a painful process to wait and go through," she said.
After anxiously waiting eight months, Byers' former employer withdraw their objection so she received the benefits.
"Is anybody not on antidepressants yet?" she asked. "This has been such an anxiety inducing [time] and this was just one more log on the fire."
Constant Turnover
Typically, the department would lose a few administrative law judges a year, said a former attorney at the Department of Workforce Development. But it's been off the charts.
During the pandemic, the department is losing anywhere from one to two every month, as the department officials said, to as many as three to four judges, according to department employees. The agency has about 50 full time administrative law judges and 17 part-time judges.
Those who don't meet their quotas will face discipline.
"We have mentoring and coaching. And we would work with staff to get them to where they need to be," Ashley said.
Low pay and thin staffing has been a longtime problem at the Department of Workforce Development and flared up into a full-blown crisis with the pandemic.
One young attorney quit shortly after starting, unable to keep up with the workload and uncomfortable with what she was asked to do with so little expertise and time.
Agency officials said starting pay is about $47,500 and average pay is $57,000 for administrative law judges.
The department said that while some lawyers felt overwhelmed, others were better suited for the job.
David Remondini, a part-time judge that the department recommended for the story after being presented with the claims from current and former employees, said it took him months to feel confident in all his decisions.
"There was a very steep learning curve with the law and technology," he said, "and just the experience of managing a hearing where there are often contested and contentious parties."
When he first started, he had a "flicker" of doubts about one or two cases out of the dozen he took on every week. Eventually his confidence grew with experience.
The Department of Workforce Development gave judges guidelines to help them make decisions but they were limited to common situations. Some administrative law judges were frustrated they didn't have access to digital or in-person law libraries for complicated cases.
Jared Staudenmeier, another judge recommended by the department, said he relied on the guidelines to confidently decide his cases.
Staudenmeier and Remondini both said their workload was manageable, although Remondini said he may feel differently if he worked full time. He works three days a week for about half the day.
Roberta Ross, a contract judge hired to help clear the backlog and who worked every day, said she had to stay late and work as many as 80 hours, with many of those hours unpaid.
"A couple of times they paid more," she said. "But I wasn't paid the hours I worked because I knew they weren't going to pay for two weeks every week."
With hours of unpaid overtime, her pay stretched to among the lowest paid workers in the state.
"My poor husband. I never got home for dinner," she said. "It was all day, every day,"
She left after a few months.
©2021 www.indystar.com. Distributed by Tribune Content Agency, LLC.
