HR's Role in Fighting Unnecessary Unemployment Claims. James Ezell Attorney x 6258

Transcription

1 HR's Role in Fighting Unnecessary Unemployment Claims James Ezell Attorney x 6258 james.ezell@tasb.org

2 Overview HR s Role Basics Documentation Substitutes Costs This document contains legal information to facilitate a general understanding of the law. Nothing herein should be relied upon as legal advice in general or in reference to any specific fact situation. Readers should consult their own attorneys to obtain legal analysis and advice in order to apply these legal principles to any specific fact situation.

3 Basics of unemployment law Unemployment Insurance (UI) benefits are paid to those employees who lose their jobs through no fault of their own, who are discharged for a reason that is not workconnected misconduct, or who voluntarily quit because of good cause connected with the work. UI benefits are not paid to those who are discharged for misconduct connected with the work or voluntarily quitting without good cause connected with the work.

4 Discharge Sec DISCHARGE FOR MISCONDUCT. (a) An individual is disqualified for benefits if the individual was discharged for misconduct connected with the individual's last work. Misconduct connected with the last work No misconduct = discharged for other reason = benefits

5 Quitting Sec VOLUNTARILY LEAVING WORK. (a) An individual is disqualified for benefits if the individual left the individual's last work voluntarily without good cause connected with the individual's work. Voluntarily Without Good Cause Connected with the work

6 Other Reduction in Force = laid off Resign or face nonrenewal = laid off Retire or be non-renewed = laid off End probationary contract = laid off Best interests of the District = laid off Financial Exigency = laid off

7 Where do things get started? Claimant files with the TWC (online or phone) TWC gets claimant s side only TWC mails a claim form to you Only opportunity for you to respond TWC asks for rebuttals Return calls and include documents Decision mailed to both parties Check your mail frequently Loser appeals for a telephone hearing Don t miss the deadline; include documents

8 Timing Missing deadlines is the worst thing you can do! Your initial response Follow up phone calls Appealing for a hearing Call in on time Check dates on everything from TWC

9 Where does all this information reside? HR is the gatekeeper of information Don t farm this out Develop a procedure to coordinate Be consistent

10 Testimony When you are interviewed: Stick to the facts. Sound authoritative. Don t try to spare the claimant s reputation when dealing with the TWC. Tell them exactly why the person was fired. If it s relevant, bring it up. (This is your only chance!) If it s not, don t. (Don t volunteer extra information or get sidetracked.) The claimant s story: Remember, if you didn t tell the claimant why he was fired, he thinks he was let go for some unspecified reason. At-will employees still must be given a reason if you want to deny them benefits.

11 What to say Good replies We fired for insubordination / failure to follow directives. Bad replies There was no specific reason. She just wasn t working out. He violated policy. Please see the attached copy. He was an at-will employee, so we didn t give him a reason. Yes, there were previous warnings. We placed her on suspension in order to investigate and then fired her the next day. I don t have anything in his file. Maybe the principal knows. We evaluated her conduct for the entire term and decided not to have her back for next year.

12 Strategies to use Tip Pick a final incident and stick to it. Don t say lots of reasons. Let them hear from the person with the most knowledge. Use active voice and descriptive words. Cite your policy, procedure, or other documents. Don t use words like inability or incompetent to describe a claimant. Reason TWC decision based upon the final incident. Be specific. Second-hand info is not as believable as the source. Quantifiable: insubordination; no-call, no show; etc. You can t hold a person to rules unless you explain them. Show that the person was capable of performing the work, but failed to do it.

13 Sample Documents Employee Handbook Policy Guide Handbook receipt page Disciplinary warnings Video Resignation or Termination Letter Exit Interview form Medical releases Letter of Reasonable Assurance

14 Use documents to your advantage If both sides have different stories, documents can be the tie-breaker. Encourage documentation by supervisors. Lacking documents makes you look unprofessional. If it is important enough to talk to an employee about it, it is important enough to write it down. When in doubt, send in the document.

15 Subs Substitutes between assignments during the school year are considered laid off by the district. Why? You didn t fire them, so not misconduct. They didn t quit. There was no work available after their last assignment ended. UC is designed for layoffs. Unemployed means someone is not working or receiving wages. You can file a partial claim while working.

16 Limiting Sub Claims Consider drastic cuts in your sub list Move laid off employees to the top of the sub list for next year Better to put someone back to work as a sub than have them drawing UI benefits from you Keep the sub list short and busy. Use full time subs. Letters of Reasonable Assurance Issue a LRA to a laid off employee if planning to bring them back Talk with your neighboring districts Anyone refuse work? Keep a call log and report it. Remove frequent filers from your sub lists. Do not rehire former full timers as subs.

17 How much can a person receive? Former employees can receive up to 26 weeks of benefits at a maximum of $426/week. 26 weeks x $426/week = $11,076* Approximate annual salaries: $42,000 = $426/week $32,000 = $320/week $22,000 = $220/week Extended benefit claims up to 20 more weeks can mean another $8520. *Rates go up October 1, 2012, probably around $9-$15 per week.

18 What benefits do we pay for? Schools are reimbursing accounts Pay Regular benefits (red) Do not pay Federal Emergency (blue) Pay State Extended (green)

19 Wage Table 1 st Quarter 2 nd Quarter 3 rd Quarter 4 th Quarter The 5th Quarter Claim filed anytime during Claim filed anytime during Claim filed anytime during Claim filed anytime during 4/1/2012 6/30/2012 7/1/2012 9/30/ /1/ /31/2012 1/1/2013 3/31/2013 Base Period Lag Quarter Filing Quarter Base Period Lag File here? Base Period Lag File here? Wages Wages Wages Wages Wages Wages Wages Wages Wages Jan Feb Mar Apr May 2011 Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May 2012 Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Wages In This Quarter Are Not Used Wages In This Quarter Are Not Used

20 So what does the wage table tell us? Fewer wages an employee has, the smaller your liability for a claim Claimants who work for you less than a year will create less liability in the form of benefits since they won t have as many wages from you. Someone who works less than 90 days creates almost zero liability in a UI claim. If it s a new employee, it is better for you if they file quickly instead of waiting.

21 Call us! As members of the TASB UC program, help is available to you: James Ezell Attorney x 6258 james.ezell@tasb.org