23-674. Procedure in rendering decisions and orders; rights of parties; representation

A. All interested parties to a hearing before the appeal tribunal or the appeals board shall be given reasonable notice of the hearing and afforded an opportunity for hearing. The notice shall state the time, place and issues involved but if by reason of the nature of the proceeding the issues cannot be fully stated in advance of the hearing, or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable, and opportunity shall be afforded all parties to present evidence and argument with respect thereto. If a party's legal or factual basis of contention is substantially changed at the hearing, causing surprise to the opposing party, the hearing shall be rescheduled with timely notice of the nature of the new contention unless a waiver on the record is obtained from the party claiming surprise or the surprise could have been avoided with due diligence. All hearings shall be recorded. The appeal tribunal shall secure either a court reporter or an electronic means of producing a clear and accurate record of the proceeding at the department's expense. If a party files an application for appeal to the court of appeals pursuant to section 41-1993 and the hearing has not yet been transcribed, the hearing shall be transcribed at the department's expense. Informal disposition may be made of any case by stipulation, agreed settlement, consent order or default.

B. In a hearing conducted pursuant to this section, parties may be represented in the following manner:

1. An individual, either an employee or an employer, may represent himself or may be represented by a duly authorized agent who is not charging a fee for the representation.

2. An employer, including a corporate employer, may represent itself through an officer or employee.

3. Any party may be represented by a person who is charging a fee for the representation and who is either a duly authorized agent who was previously or is currently retained by a party for purposes other than representation in an unemployment compensation hearing or an attorney who is authorized to practice law in this state. An attorney or agent representing a party before an appeal tribunal or the appeals board may charge a fee not in excess of seven hundred fifty dollars but may request the department to approve an additional amount which is reasonable for the services rendered. This is limited only to an unemployment compensation appeal.

C. Notwithstanding any other law, representation of a party at a hearing conducted pursuant to this section is not deemed to be the practice of law.

D. The tribunal and the appeals board may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. It shall give effect to the rules of privilege recognized by law. It may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence. All evidence, including records and documents in the possession of the department of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The tribunal and the appeals board may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within its specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. The tribunal and the appeals board may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them. Each party shall have the right of cross-examination of the witnesses who testify and shall have the right to submit rebuttal evidence.

E. Every decision and order adverse to a party to the proceedings shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. Parties to the proceeding shall be notified of the decision and order in person or by mail.