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Judge rules on behalf of PUA claimants against DETR

Published: Jun. 25, 2020 at 9:10 PM PDT|Updated: Jul. 20, 2020 at 2:24 PM PDT
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RENO, Nev. (KOLO) - UPDATE: A judge ruled Monday, July 20, 2020 in a lawsuit filed on behalf of Pandemic Unemployment Assistance claimants against Nevada’s Department of Employment, Training, and Rehabilitation (DETR).

The Honorable Barry L. Breslow, Judge of the Second Judicial District Court in the State of Nevada found that DETR has for the most part exercised its discretion reasonably, but said there are two ways DETR has been in error in how it approached the problems:

  • DETR erred in not paying gig workers who are still collecting some income, but had their income substantially affected by the shutdown.
  • DETR is not to stop benefits that have already started, and then delayed due to further investigation.

Another hearing is scheduled for July 30 at 10 a.m. The judge made it clear that by that date, the court wants to see progress from the state in terms of responding to the UIPUA backlog, and what steps DETR is making to move people ahead in the line. The state also must show the progress its making to address filers from February 29 to March 5 who were denied because it was before the COVID outbreak, but who claim their jobs were affected by COVID.

To watch Monday’s hearing in its entirety, click here.

ORIGINAL STORY: Nevada’s Department of Employment, Training, and Rehabilitation (DETR) is facing a lawsuit, filed June 22, for not paying unemployment benefits to pandemic unemployment assistance (PUA) claimants in a timely manner. All PUA claimants in Nevada are automatically included in this lawsuit.

The lawsuit states in part, “DETR has made a terrible mistake that is preventing approximately 60,000 self-employed individuals from receiving about half a billion dollars in desperately needed unemployment compensation benefits that they are clearly entitled to.”

It’s called Amethyst Payne, Iris Podesta-Mireles, Anthony Napolitano, Isaiah Pavia-Cruz, Victoria Waked, Charles Ploski, Dariush Naimi, Tabitha Asare, Scott Howard, Ralph Wyncoopon, Elaina Abing, and William Turnley and all other similarly situated vs. State of Nevada ex rel Nevada Department of Employment, Training and Rehabilitation (DETR).

The lawsuit started with a simple conversation between friends.

Amethyst Payne recalls the day she told Mark Thierman about Gov. Sisolak’s order to closer her business called Therapeutic Massage in Reno to prevent the spread of COVID-19. She told Thierman about her difficulties and the fact that at that time there was no way to apply for PUA benefits.

“He realized that multiple other people were not getting paid and didn’t have a way of even getting into a system,” said Payne.

Thierman recalls the conversation as well. “She wasn’t the first to talk with me about it and I finally said, ‘OK, lets see what’s going on.’”

He sued DETR to construct a website for PUA applicants May 12th. Four days later on May 16 the PUA website to apply was operational.

Thierman gets attention when he files a lawsuit.

He’s a Harvard Law School graduate. He says he’s responsible for about a $1 billion in payouts in his 42 year career, has been featured in the New York Times and Business Week for a settlement of about $100 million against brokerage firms for violating labor laws, and has argued before the U.S. Supreme Court.

He’s also a partner at the law firm Thierman and Buck.

He says he talked with Nevada’s Attorney General Office representatives Chief Deputy Attorney General of the Boards and Open Government Division Greg Ott and Robert Whitney the following Monday, May 18 after the PUA application website was launched.

Thierman then took another new step to push for DETR to make timely payments.

He recalls saying, ‘“I’m not going to serve you with a lawsuit unless I find out you’re not fixing this and they said, ‘Oh no no no. We’re going to be OK.’”

The delays continued so Thierman filed a second lawsuit June 23. It’s mentioned in the second paragraph of this online report.

This type of lawsuit is called an “ORDER TO SHOW CAUSE”.

Thierman explains how it works this way, “It’s a swing and if you hit it, you hit it out of the ball park and if you miss, you’re out. It’s an order from the court that says to the other side, in this case the State of Nevada, I think that there is a problem that our side identified. Your wrong unless you can convince the State of Nevada that you’re right. The burden is on you (the State of Nevada).”

At 1:03 p.m. on June 24, 2020, The Honorable Barry L. Breslow, Judge of the Second Judicial District Court in the State of Nevada signed an “Order to Show Cause” of “OSC” directing the State of Nevada and DETR to explain to his satisfaction the reason(s) DETR has not paid approximately 60,000 of Nevada’s gig workers unemployment compensation “when due” on July 7, 2020, at 9:00 a.m. If the Judge is not satisfied with the explanation, then the OSC says that Judge Breslow issue a court order to DETR and its officials to start paying these people all their unemployment compensation benefits immediately.

Thierman says his goal is simple. “The plaintiffs are not asking for money (a payout). What they’re asking DETR to do is its job, which by the way in this case is pay money (that they are owed because they lost their jobs due to the COVID-19 pandemic),” he said.

KOLO 8 Evening Anchor Noah Bond asked, “Can you tell me what your findings are? Why are people not getting paid in a timely manner?”

He explained it’s caused by red tape. The U.S. Department of Labor Wage and Hour Division memo to DETR workers loosely states Nevada residents can’t receive money from unemployment insurance and pandemic unemployment assistance at the same time. This directive is causing DETR workers in Nevada to do an extensive back-and-forth check before issuing payment. Thierman says this makes up 80 percent of all the problems DETR is facing when trying to release the funds.

This leads to a lengthy adjudication process, which is responsible for holding up the money and preventing families in need from getting this critical assistance.

The lawsuit states this is not the approach the State of Nevada should take when distributing the money.

“Instead of being a mother may I say yes. The process should be about making the State pay and then try and get it back later. If one, or two, or three, or four of them are incorrectly paid then there’s a whole mechanism for getting it back. I don’t say people should commit fraud,” said Thierman.

Judge Breslow agrees with Thierman and has told DETR it must respond by July 7.

“What will happen if DETR can’t make a convincing case?” asked Bond.

“I get an order from the judge telling DETR pay the money,” said Thierman.

“How long will it take to pay the money after that? Can you tell me that?” asked Bond.

“I can’t but I don’t imagine it will take long,” said Thierman.

“I don’t believe the people at DETR are anything less than hard working and sincere and want to help, but they are in the weeds. They are down in the lower levels. They can’t see the forest from the trees,” said Thierman.

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