Leung v. Employment Dept.

Under OAR 471-040-0010(2), the phrase "gaining knowledge that the person needed or was entitled to such [language] assistance" "refers to the department's knowledge or awareness, obtained by any means, that the person needed or was entitled to oral or written language assistance."

Leung, a native Cantonese speaker with broken English, made a late request for a hearing regarding his right to extended unemployment insurance benefits. The Employment Appeals Board (EAB) affirmed the administrative law judge’s denial of this request. On appeal, Leung argued the Employment Department “failed to follow its policy on assisting claimants with limited English language proficiency,” and further that the Department’s failure met the “good cause” standard for a late hearing request under OAR 471-040-0010(1). The Court held the EAB incorrectly understood OAR 471-040-0010(2), which correctly interpreted instructs that a claimant does not need to prove that he expressed a language preference or asked the department to communicate in a particular language. The Court interpreted the phrase “gaining knowledge that the person needed or was entitled to such [language] assistance,” as referring to the Department knowing or having awareness “that the claimant ‘needed or was entitled to’ oral or written language assistance.” The Department, by the terms of its policy, must provide language assistance “upon gaining knowledge” of the need, and this knowledge may be expressly conveyed through a request for assistance or through communication and observation allowing the inference of limited English proficiency. Reversed and remanded.