UNEMPLOYMENT BENEFITS

Transcription

1 Page 1 of 10 UNEMPLOYMENT BENEFITS This brochure may be helpful to you if you recently lost your job (you quit or were fired), you want to apply for Unemployment Insurance Benefits, you want to appeal your benefits decision, and/or you need to prepare for your benefits hearing. For more information on your matter, please call The Legal Aid Society of Hawai i s hotline at (808) Copyright May 2001 Legal Aid Society of Hawai i All rights reserved. These materials may not be reproduced without the written permission of the Legal Aid Society of Hawai i. Under no circumstances are persons receiving these brochures to be charged for copies without written permission of the Legal Aid Society of Hawai i. This is meant to be an informational brochure, and is not intended to take the place of legal counsel. It is not intended to be a complete statement of law nor is it intended to fully describe or evaluate your options. The distribution of this brochure by the Legal Aid Society of Hawai i does not imply that an attorney-client relationship has been formed. F:\JUSTICE\BROCHURE\Welfare Revised November 2013

2 What are Unemployment Insurance Benefits (UIB)? Page 2 of 10 Unemployment Insurance, or UI, is unemployment administered by the state (via the Department of Labor) collects and distributes unemployment funds to a person who previously worked but now is unemployed. Both the employer and the state deposit money into the unemployment fund. Benefits are based on your past employment, rather than on your financial situation. If claims are paid out, the employer s unemployment insurance premiums may go up. How to apply for Unemployment Insurance Benefits: As soon as you become unemployed, call Hawai i Tele-Claim at (or outside of Hawai i). You will be required to answer some questions using an Interactive Voice Response (IVR) system, and then a Customer Service Representative (CSR) will take over the claim filling process. Within one to two (1-2) days you will receive an informational packet with instructions on how to complete any forms that need to be returned to the local office handling your claim. You may be eligible to receive UIB If: (1) You have worked long enough to qualify for benefits, and (2a) You were fired for any reason except misconduct, or (2b) You quit with good cause. You also must meet other conditions before you can be paid unemployment compensation: 1. Must be unemployed: You are not unemployed if you work full-time hours or receive temporary disability insurance. 2. File an application for Unemployment Insurance Benefits 3. File claim certifications: You must file timely claim certifications for each week you are unemployed. 4. Register for work with the State Workforce Development Division (WDD): You must be registered with WDD within seven (7) calendar days after the date you apply for unemployment benefits. 5. Participate in Reemployment Services (Worker Profiling): You may be referred for reemployment services. If referred, you must participate as directed. 6. Able to work: You must be physically and mentally able to work. 7. Medical waiver provision: If you are on active claim status and become physically or mentally unable to work, you may still be eligible for benefits. You will be eligible for benefits even though you are not available for work if you meet the following conditions: a. Your illness or disability is certified by a doctor b. You did not refuse work which would have been suitable for you prior to the onset of your disability c. You are registered for work prior to the onset of your disability

3 d. You filed a new, additional, or reopen claim before the beginning of the illness or disability 8. Available for work: you must be ready and willing to seek and accept work. a. You must make 3 or more job contacts every week: You must keep record of all your job contacts. Page 3 of Serve a waiting week period: All claimants must serve a mandatory one-week waiting period on a new claim. 10. Report for required interviews. Other designations: 11. Educational employees: Benefits based on services performed as an educational employee will not be paid between two academic years or terms if you have a contract or reasonable assurance of re-employment in the next year or term, or after the vacation/holiday recess period. 12. Professional athletes: Benefits based on services which consist of participating, preparing, or training to participate in sports or athletic events will not be paid between successive sports seasons if you have a reasonable assurance of performing such services in the next season. 13. Illegal alien: Benefits will not be paid based on services performed as an illegal alien. You may be disqualified from receiving UI Benefits if: 1. You voluntary quit without good cause. A voluntary quit occurs when you quit your job. You have the burden of proof to show good cause for leaving work. Good cause means you have a reason that would cause a reasonable and prudent worker who wants to maintain employment to quit. 2. You are discharged or suspended for misconduct connected with work. In a discharge or suspension, the employer fires or suspends the employee. The employer has the burden of proof to show that your actions or omissions are considered misconduct. To be considered misconduct, there must be a deliberate violation or disregard of the duties, responsibilities, or standards of behavior that an employer has a right to expect from an employee. 3. You fail to accept suitable work without good cause. Failure to accept suitable work includes refusal of a job offer from a prospective or former employer, failure to report to work after accepting a job offer, or failure to accept a referral from the Workforce Development Division. Suitable work depends on your prior work experience, skills, prior earnings, prospects for reemployment, and the degree of risk to your health, safety, or morals. 4. You are in a labor dispute. If you are not working because of a work stoppage due to a labor dispute, and you are directly interested in or participating in that dispute, you will not receive benefits for the duration of the work stoppage. 5. You are receiving other unemployment benefits. If you are receiving or applied, for unemployment benefits under another state or federal law. You are not entitled to receive unemployment insurance benefits from Hawai i.

4 Page 4 of You are engaging in fraud. You will be disqualified for benefits beginning with the week in which the determination of fraud is made and for the next 24 months if you knowingly make a false statement or withhold material facts for the purpose of obtaining benefits. In addition to the two-year disqualification, you must repay all unemployment benefits you were overpaid. The law requires that you inform the Department of Labor of anything that affects your eligibility for benefits. Depending on the seriousness of the offense, your case may be referred for CRIMINAL PROSECUTION. If convicted you can be fined up to $10,000, or imprisoned up to 5 years, or both. 7. Pension and Retirement Pay. As of July 1, 2005, there are no deductions to your unemployment benefits because of social security or railroad retirement benefits. 8. Deductible Income. Income such as wages, commissions, bonuses, vacation pay, holiday pay, back pay, and residual pay are deductible from your weekly benefit amount and must be reported when you file your claim certifications. Union vacation pay is deductible when paid by the employer to the union trust fund and must be reported. If you received a denial in the mail If you are denied benefits and disagree with the Notice of Decision on Unemployment Insurance Claim, you may file an appeal to the Employment Security Appeals Referees Office (ESARO). What is an appeal? An appeal is a request that you make to ESARO asking them to re-think their decision. In this case, you are asking for a hearing to further explain why you should get unemployment benefits. How do I appeal? You must appeal in writing within 10 calendar days (not business/working days) of the date on the notice they sent to you. The appeal must be received within 10 calendar days. To appeal, all you need to do is identify your claim and state that you would like to appeal. You should also attach a copy of the denial letter. You can appeal the decision two ways: (1) get an appeal form from the local claims office, or (2) write a letter asking for an appeal. Simply identify your claim and say you want to appeal. See sample letter for more specific instructions. It is safest to hand-deliver or mail by certified mail your appeal. Keep a copy for your records. If you missed the appeal deadline ESARO may be able to extend your 10-day appeal deadline to 30 days if you have a compelling reason for missing the deadline. However, if it has been more than 30 days since your denial, it is too late to file an appeal even with a compelling reason. You will need to reapply all over again. A compelling reason can be something like a death in the family, extreme illness, or a necessary absence from the state.

5 Page 5 of 10 A compelling reason is not forgetting, or you misreading the date on the ruling. If you miss the 10-day appeal deadline, file your appeal and state your reason for missing the deadline. You will then receive a notice of the hearing date. At the hearing, the appeals officer who hears your case will first decide if the reason for missing the 10-day deadline is compelling. If he/she decides it is not, he/she will deny your request for an appeal. After you file your appeal, you should get a hearing notice in the mail. If you do not get one, call your hearings office and ask about the status of your appeal. Once you have received a hearing notice, you need to start preparing for your hearing. What is a hearing? A hearing is an informal administrative procedure. At your unemployment appeals hearing, a hearing officer will listen to you and your employer. The officer will then decide whether or not you will receive Unemployment Benefits. You should be prepared to tell your story and support your claims with evidence. Do I need a lawyer? No. Anyone can represent you at the hearing. You can have a lawyer, a friend or family member speak for you, or you can represent yourself. If you do not speak English well, you can request an interpreter. I need more time to prepare If you need more time to prepare your case, you can call the hearings office and ask for a continuance. This means that you are asking for a later court date. Call the office as soon as possible to reschedule. Keep in mind, the hearing office can deny your request, so be ready to provide a good reason. There are several things that you should do to prepare: 1. Read the hearing notice The notice tells you the time and place of the hearing. You must be at the correct place at the right time. If you are late or go to the wrong place, the hearing officer will think that you are not going to show up. If you cannot make it to the hearing, you must call the hearings office right away to see if you can reschedule it. The notice also tells you the issues that will be covered at the hearing. These are the only issues that can be brought up at the hearing. If there is a fact or argument that you want to bring up that is not noted on the hearing notice, contact the hearings office immediately and ask them to put that new issue in the hearing notice. For example, if your hearing notice says the issue is whether you quit for good cause, but you think you were fired, call the office and tell them to put the issue of being fired on the notice. If you don t add in the issue before the hearing, the hearing officer may not allow you to argue the issue. 2. Think about what you want to prove and what you want to say When you first applied for UIB benefits, you were sent a letter that denied your application. In this letter, the claims examiner explained the reason(s) for your denial. Some common reasons for denial of Unemployment Benefits are: You were fired for misconduct You were not working long enough to qualify for benefits

6 Page 6 of 10 You did not have good cause to quit Whatever the reason is, you need to gather evidence and testimony. At the hearing, you must show the hearing officer that every reason they used to deny you unemployment benefits was wrong. For example, if you were denied because you did not work long enough and did not have good cause to quit, you need to prove that both reasons were not true. 3. Gather evidence that supports what you want to say. To collect evidence that helps your case, you should: a) Copy your file at the UIB office The UIB office has a file of your case. You have a right to look at it and to photocopy it. There are several things to look at in the file: 1) Your employer s reasons for disagreeing with your claim 2) The reason for unemployment denial This information is important because it will give you clues on what your employer will say and how to defend yourself at the hearing. You should take advantage of this file and use it to your benefit. For more information, call the hearings office their phone number is on your hearing notice. b) Subpoena people, witnesses, and documents: For people/witnesses A person who will testify at the hearing is called a witness. You should gather witnesses who know firsthand information that can help your case. Talk to people such as co-workers who can help your case. Examples include a worker who saw you get fired and knows that it was not for misconduct or a worker who witnessed your boss harassing you and can testify that you quit for good cause. If you think that a witness may not show up at the hearing, you should subpoena that person or get a written statement from them. A subpoena is an order that tells a person that they must appear at the hearing. (See below for more information on how to subpoena.) Prepare Your Witnesses Talk to them before the hearing about the questions you will be ask at the hearing. Plan your questions ahead of time. Ask short questions that let your witness tell your side of the story. Focus on showing why your story is true, and how the reasons you were denied benefits are wrong. By preparing your witnesses ahead of time, you can decide whether or not their testimonies are appropriate and will help your case. Remember, you don t need a lot of witnesses. You need witnesses who know the most direct, first-hand information. Do not subpoena witnesses who have made statements that hurt your case. They will probably repeat the statements and will further hurt your case. For documents:

7 Page 7 of 10 Collect any documents that can help your case a letter firing you will prove that you were fired, or good evaluations of your work may help to invalidate a claim of misconduct. You can also get documents from your employer or other people. If you need a document for your hearing that you can t get on your own or that a person might not bring, you may go to the hearings office and request a subpoena. Before the hearing, prepare how you will be using the documents. Make sure that each document is appropriate and will help your case. Submit your written evidence as soon as possible to the hearings office. You should also send a copy of your evidence to your former employer. You can request that the hearing officer subpoena an unwilling witness or a document. Please request your subpoena immediately, so that the person subpoenaed may have enough time to comply with the request. The hearings office may grant or deny your request. Provide the following in your request: 1. Your appeal number, date and time of the hearing, and appeal officer s name. 2. Individual name and street address. (Witness or custodian of the document) 3. Reason why the individual or document is relevant. 4. Your attempts to secure the individual or document. How do I get a subpoena? To get a subpoena, you must file a request at the hearings office. Keep in mind that it takes at least seven (7) days for the subpoena to be served, so you need to request a subpoena as soon as possible. If it is a person you want to subpoena, then you must give the hearings office the person s full name and a correct address where the subpoena can be served. If you need a document, you need to give them the full name and address of the person who has the document. The Hawai i Sheriff s Office will serve the subpoena, but will do so only if the name and address of the witness to be served is correct. Strategies you can use at your hearing If the notice says you were fired for misconduct, you can: 1) Deny the misconduct behavior, or 2) Admit the misconduct behavior, but say that it was an isolated incident of negligence or a case of bad judgment. If the notice says that you quit without good cause, you can: 1) Show that you attempted to fix the problem before you quit. This includes a letter to a supervisor or a talk with your boss, and 2) Prove that you had good cause to leave your job. Examples of good cause include: medical reasons, family circumstances, financial circumstances, and unacceptable work conditions. Being dissatisfied with your working conditions is usually not considered good cause since you presumably accepted your working conditions when you initially took the job. For working conditions to be good cause for quitting, you must show that: Your employer has substantially changed the working conditions, or You were unaware of the conditions when you took the job, or You were deceived about the conditions of employment.

8 Page 8 of 10 At the hearing What do I need to do at the hearing? 1. Be on time at the correct location 2. Clearly tell your side of your story 3. Question your witnesses. You will also have a chance to question the other side s witnesses. What if my employer brings up issues that I am not prepared to argue? You have a right to know the issues that will be presented. These are the issues listed in your notice. If your employer tries to bring up new issues that were not on the hearing notice, you should Object. You can ask the Referee to: say that the issue is not allowed to be raised stop the hearing and set a later date to finish the hearing so you have time to get ready for the new issue, and/or take a short break to allow yourself time to think of how to argue against the new issue. You yourself also may not bring up issues not listed on the notice. Be sure to call the hearings office before the hearing if you want to add another issue onto the hearing notice. If you win your appeal You have won your right to unemployment benefits. Assuming you meet all the eligibility requirements, you will receive benefits for the time since you were first denied unemployment benefits. This decision is final, unless your employer requests to reopen the case due to new evidence. Your employer may also appeal the decision in Circuit Court. If you lose your appeal You have a choice to appeal that decision. Depending on your situation, you have two options: 1. Re-open the case: If you have new evidence that was not available at the time of the hearing, you can apply within 30 days of the decision to have your case re-opened. 2. Court appeal: If you do not have new evidence, you can appeal your decision in Circuit Court. You have 30 days from the date of the decision to file a circuit court appeal. Wrongful termination: If you believe you have been wrongfully terminated, you may have a direct claim against your former employer. Here are some typical reasons that people get fired where a case of wrongful termination may exist: A personal conflict with your boss and/or colleagues that results in you getting fired. A breach of contract where you are improperly fired for violating part of your contract. A downsizing where you are told that your job is being eliminated only to find out that your employer then hires someone to replace you in the exact same position. Being fired or forced to quit so that your boss can hire a friend to replace you. Sexual harassment (i.e., you are sexually harassed and when you rebuff the advances or report them, you are fired). Discrimination based on sex, race, age, religion, sexual orientation, political affiliation, etc. You report a wrongdoing in the company and are fired (i.e., you are a whistleblower).

9 Page 9 of 10 These are just some of the reasons where a case of wrongful termination might exist. Certainly your specific situation and the employment laws that govern your area of employment may take precedence. You should seek advice from a private attorney in this case. If you think you ve been discriminated against, you have to file a claim with the State Civil Rights Commission & Equal Employment Opportunity Commission. appeal claims examiner discrimination documentation evidence hearing hearing officer subpoena testimony witness To ask the courts/administrators to rethink their decision. In the case of UIB, you are asking for a hearing to further explain why you should receive UIB. The person who reviews your application for unemployment benefits When someone treats you differently on the basis of sex, race, religion, sexual orientation, etc. Any written evidence that supports your claim Any kind of proof that supports your claim A legal proceeding where a decision is made based on the evidence and testimony of both parties The person at the hearing who will make a decision based on the evidence and testimony of both parties A document that is written by the agency which orders a person to show up or a document to be produced at the hearing A witness s story that is given under oath about the case at the hearing A person who testifies at a hearing and swears their testimony is true Honolulu 830 Punchbowl Street, Room or Hilo 1990 Kinole St. Room Kaua i Kuhio Hwy. Room To file a discrimination claim: Hawai i Civil Rights Commission Department of Labor: Unemployment Offices Kāne ohe Kawa St. Room 205 (Monday & Wednesday only) Kona Halekii St. Room Moloka i 55 Makaena Pl. Room Waipahu Mokuola Street, Room Maui 54 S. High St. Room Hearings Office Punchbowl St. #411 Honolulu, HI Legal Aid Society of Hawai i 924 Bethel Street

10 Page 10 of 10 Honolulu, HI Legal Aid s Hotline: O ahu: Neighbor Islands: REMEMBER: This brochure is meant to provide general information, and does not provide specific legal advice about your individual case. The law often changes. Each case is different.