Dianne LugoSalem Statesman Journal
The Oregon Employment Department should stop doing partial translation of agency decisions sent to Spanish readers, and delay collection of employment benefit overpayments for those who are granted a late administration hearing, a Multnomah County Circuit Court judge has ruled.
Judge Eric Dahlin's April 5 ruling found the two practices unconstitutional. Dahlin also took issue with several other department practices challenged in a lawsuit filed by the Oregon Law Center against the agency and its director, David Gerstenfeld.
“Almost every issue identified by Plaintiffs is of concern, and OED as a public agency may want to consider voluntarily implementing most of the items Plaintiffs are asking for if it is reasonably feasible to do so," Dahlin wrote.
The judge acknowledged the department faced a historic and unprecedented demand for need during the COVID-19 pandemic. In 2020, 580,041 people received unemployment benefits, a 1,400% increase in benefits compared with 2019.
But “the pandemic alone did not cause all the problems identified by Plaintiffs as much as it exposed problems that already existed,” Dahlin wrote.
The Oregon Law Center asked the court to determine whether the agency was using an unconstitutionally confusing system it referred to as “impenetrable” and “fragmented.”
While the judge was critical of the department's backpay system, he said: “Nothing in this decision changes or unwinds any decision by OED in the more than 60,000 overpayment matters that became administratively final between January 2020 and May 2023, or any others since that time.”
The Oregon Law Center and the Oregon Employment Department declined to discuss the ruling. A spokesperson said the state agency is reviewing Dahlin's decision.
Employment Department should stop collecting payments until decisions are final
The Oregon Employment Department made nearly 80,000 overpayment decisions in 2022, according to the data provided to the Statesman Journal.
When the agency later determined someone was actually ineligible for benefits they received, deadlines were set for individuals to request a hearing. Hearings to dispute agency action are held by the Office of Administrative Hearings, which can allow late hearings for those who miss an initial deadline due to a good cause.
The Oregon Law Center asked Dahlin to determine that if that late hearing is granted, OED should not pursue collection of overpayments.
Dahlin agreed, saying the agency should be able to track whether a late hearing was granted and stop recouping payments.
“OED has not shown to the Court’s satisfaction that there would be a meaningful difference in the burden of not seeking repayment from these two different groups of claimants,” Dahlin wrote. “It may be that a new process needs to be set up where OAH is asked to provide direct, daily notice to OED of such good cause determinations, but that burden appears minimal compared to the potential harm.”
Eligibility decisions lack all critical information, partial translations unconstitutional
The judge also agreed with the Oregon Law Center that the department’s “Underlying Eligibility Decisions,” sent to Oregonians as the first notice in its two-notice decision, was insufficient and confusing.
The notices failed to explicitly warn of the money someone could owe, used jargon instead of plain language, “buried” appeal deadlines and did not include sufficient information relevant to an individual about why they were denied benefits.
Mixed English and Spanish translations also stumped Dahlin, who repeatedly asked questions about the translation practice during oral arguments.
“The Court agrees with Plaintiffs that the notices are unconstitutional as to Spanish readers who cannot read English because the notices use partial, but not complete, English-to-Spanish translation,” Dahlin wrote.
He said the agency may have unwittingly made the notices less understandable, and unconstitutional for those who cannot read English, despite the "best intentions to make the notices multi-lingual to try to make them more understandable."
“Had OED provided notices solely in English, such notice may have been constitutional (at least based on current case law), even if the notice was provided to a person who could not read or understand any English because the inability to read any part of the document would have notified the person of a need for further inquiry,” Dahlin said.
Spanish-only readers are not alerted that important information in the notice is not translated and therefore would have no reason to inquire further, he added.
Dahlin said he was not ordering the state agency to continue using multi-lingual notices or making specific orders on what language should be used, but recommending the agency confer with the Oregon Law Center as soon as possible about what the additional language should contain.
Judge sides with Oregon Department of Employment on other motions
Dahlin said the department and its customers could benefit from a more detailed explanation of “fault” but that was not required.
The long delays between someone receiving benefits and the department then issuing a decision reversing eligibility also were not unconstitutional, he ruled.
Dahlin also said while it was not unconstitutional for the agency to use mail versus texts and email to send decisions on overpayment, the department may want to use digital notifications.
“If OED’s goal is to provide the best possible notice so that claimants are timely informed of OED’s decisions, as a matter of good customer service providing electronic notice in addition to notice by First Class mail would seemingly help advance that goal (and would also head off individualized arguments that a particular claimant never received actual notice),” Dahlin wrote.
Oregon Employment Department's former system was inadequate
Dahlin said if the department had not already consolidated overpayment and eligibility information to a single notice when it changed its system in March, he would have agreed with the Oregon Law Center that the two-notice system was unconstitutional.
He agreed that to meet constitutional requirements, Oregonians should have had information about the approximate amount of the overpayment to make an informed decision on whether or not to challenge the initial eligibility decision.
The system OED used for years did not make clear how much the agency might eventually seek to claw back.
Dianne Lugo covers the Oregon Legislature and equity issues. Reach her atdlugo@statesmanjournal.comor on Twitter@DianneLugo
