More Weeks, More Charges and the $600 Question

Covid-19 UnemploymentAs employers continue to navigate through the Covid-19 pandemic, the CARES Act has provided a tremendous amount of optimism. UTCA has been diligently providing insight to clients, non-clients, human resources and industry associations as they all pose their unique situations. Among the economic provisions being extended to businesses of all size and scope, the unemployment implications are still evolving.

Since the passing of the CARES Act., many are curious as to how and when the additional UI supplements are being issued. Pressure mounting from curious furloughed employees is inundating not only the state unemployment agencies, but HR departments as well. So we hope to shed some light on the current status so you can keep your employees and departments informed.

It is important to understand that while the federal government has passed several tiers of unemployment relief (read the summary here), the individual state agencies now must work directly administer these federal provisions. There is not a universally outlined implementation process from the U.S. Department of Labor that can easily integrate into the state systems. Coupled with the tremendous operational demand of new claim filings, state agencies are incredibly taxed. From a sheer technology perspective, instituting these new processes will be a challenge.

Of the many questions we’ve fielded, common echoes have been heard:

A furloughed employee filed with the state, but has only been approved for 26 weeks. They want to know why they aren’t getting the additional 13 weeks?

The additional 13 weeks of benefits as defined in PEUC (Section 2107) will be provided to the claimants after exhausting their state unemployment allowable weeks (typically 26 weeks), totaling 39 weeks of available benefits. In most instances, it is likely the state agencies will not show the federally extended benefits expressed in their initial eligibility determinations.

In more traditional times, extended benefits (the great recession, natural disasters) state agencies have paid the initial 26 weeks (more or less depending on the state) with the extended week’s “tab” being reimbursed by the federal government. We are hopeful that most claimants affected by Covid-19 will have returned to work before having to utilize federally extended benefits.

 They were only approved for their weekly benefit amount of $XXX.XX, but they aren’t getting the additional $600 per week as promised, why were they denied?

Currently, every state unemployment agency has agreed to the provisions in the CARES Act. Per the provisions, the additional $600 per week can be issued as early as 4/5/2020 until 7/31/2020. Although all states have made agreements, some may not have implemented the mechanisms necessary to process the additional weekly payments. Some agencies such as the New York Department of Labor are slated to pay the additional $600/week now.

As many states are still working through their individual process for distributing these funds, it’s likely many states will stall and retroactive payments may be issued. It is important to note that these additional $600 allotments may not be shown in a claimant’s initial monetary determination of their standard state weekly benefit amount. So this expectation may be helpful when advising your concerned furloughed employees.

We’re a non-profit, reimbursable employer and the CARES Act only seems to allow us relief of half of our Covid-19 related charges, is this true?

It is true that the CARES Act currently only identifies “partial” benefit charge reimbursement related to Covid-19 as “generally 50 percent”. However, individual states may offer additional terms of relief in the future. Additionally, the guidance allows states “maximum flexibility” in granting extensions of benefit charge payments due by non-profits. For example, pending bill no. 2618 in Massachusetts proposes a 120-day extension of scheduled payment without penalty or interest. UTCA has been continuously engaged with several industry associations that are strongly advocating for equitable relief for all employers.

Interestingly, per Section 2103 of the CARES Act states “…partial reimbursements apply to all payments made during this time period, even if the unemployed individual is not unemployed as a result of Covid-19.. UTCA is actively trying to confirm this tenant, and how it will be interpreted by individual states.

In It Together

We understand and empathize with all of you weighing the future of your workforce with business needs in mind, all while trying to dissect so much new information. While all the answers aren’t yet cemented as it relates to UI, we hope this piece helps you communicate expectations internally and to your employees with bit more confidence. We will continue to update you as specific state regulations pass.

If you have a specific question you would like to pose about your workforce, we’re happy to help any way we can. Please feel free to can contact us here.

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UI Phone Hearings and Coronavirus – Temporary or New Norm?

Unemployment Covid-19

We’ve seen state unemployment agencies transition to phone hearings as opposed to “live” or in-person hearings, for some time now. Amidst the COVID-19 scare and social distancing guidelines, states such as Massachusetts have limited the format to telephone-only. While moves like these may be a temporary response, telephonic unemployment hearings might become the new norm for states that previously allowed for “live” format. It’s never been more crucial to brush up on telephonic hearing preparedness than it is right now.

One differentiation of telephonic hearings is the documentation and presentation of evidence. As the witness is not there in person, documentary evidence cannot be provided directly to the Judge (Referee, Examiner, etc.) as the hearing is being conducted. It is imperative you send new documentation not previously submitted at the Determination level, in advance to both the state agency and the claimant. Judges can exclude written, relevant evidence if that individual state’s procedures are not followed and/or the claimant has not been provided access to such evidence.

A key disadvantage to the telephone hearing is that the Judge does not have the ability to observe witnesses. Lacking are cues from the claimant’s face, body language, movements, demeanor etc. These factors are substantial when it comes to determining the credibility of witnesses. Thus, the Judge will be making their determination regarding witness credibility in less than ideal circumstances. In addition, it is well known through various studies, people are more likely to lie when they are not confronted face-to-face.

Important Dos & Don’ts for Phone Hearings:

  • Be sure to follow the registration or notification process as outlined by the state agency. Some states may provide a number to call to connect, while others require advanced registration requirements to provide numbers so the judge can contact you. Failing to follow these steps may leave you in default or delay the process and get you off on the wrong foot!

 

  • Presentation skills must be adjusted in this setting. A well-modulated voice, which conveys confidence, quick, direct, firm answers to questions as well as the ability to reference a document efficiently without scrambling through a file, can do much to create an impression of credibility.

 

  • Witnesses must provide crisp, clear and professional testimony. UTCA assists clients to be prepared and know the case facts. As witnesses cannot be observed thoughtfully considering a response—too long a pause can appear slow and uncertain. An inadequate response may be looked upon as unfavorable or that a witness is ad-libbing.

 

  • Remember to speak audibly! And, if anyone cannot hear another party during the hearing, quickly let this be known. This is a procedural option and not a violation of protocol. Do not wait until midway through the proceeding to make the Judge aware of this detriment.

 

  • Multiple witnesses: It is always best to have them in the same room, on the same speakerphone if possible. Given the current state of quarantining and social distancing this might not be possible. Multiple lines or locations often irritate Judges and increase the chance of technical failures, but under current circumstances this may be the safest option for most employers.

 

  • Always have the case file paperwork available, directly in front of you. Please review it prior to the hearing one last time.

 

  • Judges often become very annoyed if they hear a phone ring, a ping of an arriving text or some other avoidable sound. In addition, all other devices, computers, faxes etc., should be turned off. All environmental noises should also be eliminated.

 

  • Stay on the Judge’s good side! Remember, they are the decision maker and assess credibility. Be at your phone at the start of the hearing, waiting for the call to come in. Judges get audibly annoyed being put on hold for witnesses to be located. This is similar to being “late” for a live hearing. Use direct dial numbers if available to avoid transfers and disconnects.

 

  • DO NOT talk while somebody else is testifying. While this is also true for a “live” hearing, it is more important for a telephone hearing as the Judge may not be able to distinguish who is or isn’t speaking.

 

  • DO NOT cross talk with other employer witnesses. If you are heard whispering to another person during the hearing, it gives the appearance you are looking for assistance in answering a question, and may be providing less than truthful testimony.

 

Nervous about your next hearing or deliberating an appeal?  Contact us here!

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Devil is in the Detail – Keys to Winning Attendance-based UI Claims

Winning an unemployment case is a difficult task as it is, even more so when it involves absenteeism or tardiness. Unfortunately, most absentee cases are determined by the final incident. It’s no secret we can’t be present for every final incident to ensure not only the proper steps are taken to follow company policy, but proper documentation is occurring as well. Ultimately, this means front-line managers and supervisors must recognize the importance of this information. Most employers have well-established and comprehensive written attendance policies, and require their employees to sign-off that they have received the handbook or policy.

 

Despite their best efforts, sometimes even thorough employers fail to make specific distinctions in their policies such as:

When is a doctor’s note required?
• What is considered excessive absenteeism?
• Who are they to communicate their tardiness  or absence to?
• What is an acceptable means of communicating tardiness or an absence (call, text, email)?
• When is an absence considered excused or unexcused?

Problems for employers with absenteeism (and other time related policy issues) generally originate with the manner in which the employer documents day-to-day violations. Employers may have detailed policies spelling out the aforementioned attendance issues – it is the documentation process that often determines a win or loss in the unemployment arena. Management must remember: pure numbers of absences or tardiness may violate your policy and justify a legal discharge but do not guarantee a winning unemployment case, or even a strong unemployment case.

To make your case much stronger, it means more than just logging the dates of absenteeism, tardiness and corrective action. You must document everything for each and every absence or instance of tardiness. Specifically:

• What exact time did they communicate their absence /tardiness?
• Who called in, the employee themselves or a family member, friend, etc.?
• With whom did they speak or when was the message received?
• Did they leave a voice message?
• Did you save the message, email or text?
• What was the exact reason or excuse given?
• Did they provide a doctor’s note?
• What did the manager/supervisor say in response to the call?
• What was the employee’s start and finish time?
• Did the manager/supervisor make any requests of the employee?

Again, the importance is always placed on a final incident. When pressed for a claimant’s excuse for the final incident, a supervisor may say: “It was always something about their car”. Looking at the claimant’s statement to the unemployment office they may say their car wouldn’t start. The claimant will be found eligible and the employer will lose any protest because we can’t dispute their statement. In a different scenario, if the supervisor documents the final excuse on paper as “my car broke down on the way to work” and the claimant tells the unemployment office “my car wouldn’t start”, you have an inconsistent statement casting doubt on the credibility of the claimant which can turn a very weak case into a likely winner.
Employers have won cases based on the variety of dramatic excuses given by a claimant over time for absenteeism (cat had emergency surgery; fire-truck blocked me in on my street; power failure in area; pipe burst in my apartment; a baseball shattered my windshield). Some excuses can be so outlandish and inconsistent that it paves the way for a much easier disqualification. Whether it’s an outrageous story or a seemingly slight nuance in a statement, solid documentation will always be extremely helpful.

More is Less, and That’s Good

What’s the lesson in all this? Contrary to the old “Less is More” adage, employers that record more detail in the documentation process, will likely result in paying less out in UI benefits for absence and time related separations. See what we did there?

Are attendance claims a sore spot? Contact us here !

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Rewrite, Refresh or Reissue? Are your unenforced policies putting you at risk?

As we enter the 2020s, many of us have lofty goals for ourselves and our organizations. Whether it’s launching company-wide initiatives, “tweaking procedures” or revisiting marks we may have missed the previous year. As the year takes off, our laundry list can quickly be reprioritized, shuffled and some of those forgotten, nagging items can resurface as major issues. Often times this takes the form of policies or procedures that may have fallen by the way side in recent years. Perhaps it was due to a departmental restructuring, management shift or new business process. Maybe it’s continually pushed by challenges coordinating training with staff. If there are policies that exist in your workforce that haven’t been enforced consistently, it may leave you open to exposure in unemployment and other areas of risk. With the new year in full swing, this might be the best time to focus in on those back-burner policies!

In each state there are similar requirements under the law, i.e., your rules and policies must be known, followed and consistently enforced with all employees regardless of their overall job performance. Employers are not to indiscriminately pick and choose against whom they enforce policies (certainly not without repercussions). When this does happen, risks far greater than unemployment can be generated. A supervisor simply cannot play favorites and selectively apply policies based on their opinion of the worthiness of the employee involved.

As many human resource professionals know, these scenarios frequently occur without their knowledge, when supervisors don’t report events to their manager or human resources. These supervisors may view their employees as their management “territory” and prefer not to be held accountable to organizational standards. Unless reported, the HR department would not know what is going on in that particular department. This can come back to haunt the employer.  It does not matter what type of performer the employee is in the workplace, the policies must be enforced equally.

These situations can arise intentionally or inadvertently, i.e., when a new supervisor is simply inexperienced and does not apply policies correctly, or at all. This can go on for months or years, when more senior management does not detect the oversights. In other instances, refusing to formally address policy violations or misconduct may even be a corporate culture issue and method for the employer.

This also happens more frequently with multi-location employers, where oversight may be more difficult and decentralized. As such, these issues in the workplace commonly “snowball” where management believes they are trapped by past practices and unable to address recurring issues, or emerging issues, due to lack of precedence and a history of permissive or inconsistent practices. Unfortunately, this situation can be self-perpetuating costing the employer far more in unemployment costs and generating risks related to disparate treatment or wrongful discharge litigation.

So, these questions arise:

  • How does an employer correct their previous mistakes or prior inaction?
  • Can they?
  • Should they?
  • Are they stuck in this perpetual cycle?

Most employers recognize their past indiscretions and want to improve their management practices. In these situations, the best way to proceed is really to start from square one:

  • Designate a “reset” that begins with the re-issue (or perhaps first issue) of a well written, and updated employee handbook, code of conduct, rules, etc.
  • Poorly written policies can be deleted and replaced with strong, legally appropriate and clear standards.
  • Then, all employees must acknowledge their receipt of the new handbook, whether it is distributed via hard copy or over an internal intranet.

What does this mean for the employer?

The burden is on the employer to establish employees were made aware of the organization’s expectations. The re-issue should be accompanied by some type of memorandum stating this is the new, updated handbook, superseding all prior policies and from this point forward our organization will be strictly adhering to the specifics outlined in the handbook.

The handbook, or rules of conduct release date would be the formal reset date for the organization. Employers are not to announce this “reset” status, new period or use such terminology. All that is required is the new or updated rules or policies and the statement as noted above.

Employers want to make sure their language does not admit or acknowledge you have not uniformly enforced your policies in the past. Most importantly, the emphasis must focus on the future, the employer is now required to comply with their own written guidelines and policies, or they will revert back to the same position of disparate and careless application of rules and standards.

In terms of unemployment, management witnesses can now truthfully testify at a future UI hearing: “As of the policy issue date, this rule has been strictly enforced and uniformly adhered to.” This places the employer in a strong position to contest invalid claims and protect them from risks far beyond the unemployment arena.

Is that dormant policy giving you heartburn or has it resulted in UI charges? Let’s cross another thing off your to-do-list!

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Massachusetts Hikes Unemployent Tax Rates Again!

Despite a relatively healthy UI trust fund, and national trends lowering UI tax rates, the Massachusetts Department of Unemployment Assistance has confirmed that Tax Rate Schedule “E” will officially be enacted as of January 1, 2019. This schedule will effectively raise employer contribution rates, with the minimum rate being .94% (previously .83%) and the maximum rate at 14.37% (previously 12.65%).

Fortunately, the state Solvency Assessment will be set at 0.96%, which has decreased by from 1.01%. The taxable wage base for 2019 will remain unchanged at $15,000 per employee.

This schedule will be applied to all Massachusetts 2019 tax rate notices, which employers will begin receiving in the next few weeks. If you are a UTCA client, or just an employer with questions about your experience and rate calculation we would be happy to review with you. Please contact us here.

 

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UTCA Hosts Their 18th Annual Client Update!

Unemployment Tax Control Associates (UTCA) recently hosted its 18th Annual Client Update at the Sheraton Monarch Place Hotel and Conference Center in Springfield, MA.

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Extended Benefits = Extended Recession?!!

In a recent congressional report by the Committee of Ways and Means, the effect of the Emergency Unemployment Compensation (EUC) program is examined, and the data is staggering. Historical periods of extended benefits and record-breaking costs added to the national debt confirm what many employers (UTCA included) have believed as the US has struggled to create new jobs.

EUC Duration graph

This is a highly recommended read:

http://waysandmeans.house.gov/uploadedfiles/euc_labor_day_report_082814.pdf

 

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Massachusetts Freezes Rates: Law Passage and DUA Guidelines

On 4/15/14, Governor Deval Patrick signed an Unemployment Insurance rate freeze for 2014, eliminating a $500 million increase on employers that took effect January 1.  This bill is a stand-alone measure that does not take up any system reforms but addresses the more immediate need to secure UI payments for Q1/2014, while our legislators consider reform action.  As passed, this law freezes UI contributions at the current Schedule E and keeps the Trust Fund at a healthy $800M and represents the sixth consecutive year the state has prevented an automatic increase in employer UI taxes. With the rate issue now resolved, Massachusetts employers must square up with the UI system for the first quarter of 2014, which has an extended deadline for filing first quarter taxes of May 30, 2014.

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Emergency Unemployment Compensation Extension Act of 2014 Passes the Senate

The EUC temporary extension bill that has been debated for months was finally brought to a vote on the floor of the US Senate as an amendment to HR 3979 late yesterday and passed on a vote of 59 to 38 with three abstentions.  It was significant that the vote on the bill only received 59 votes in favor after earlier obtaining a 61 vote margin on cloture. The bill text is available at http://www.gpo.gov/fdsys/pkg/BILLS-113hr3979eas/pdf/BILLS-113hr3979eas.pdf

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Performance Improvement Plans are effective in more ways than one!

Recently, we received a claim response from an employer indicating “Poor Performance” with regard to a salesman who had been terminated. Comments provided indicated that he had been on a Performance Improvement Plan (PIP) which required him to take his company issued laptop home with him. On the date the decision to discharge was made, the salesman had called out sick, and when the company went into his office, they found his laptop hidden in his desk drawer. The claimant was fired for violating the PIP. The claim was returned to the state as a discharge for misconduct. The claimant had been warned – via the PIP – of the requirement to take his computer home with him each night in an effort to help him meet his sales goals. Evidence that he failed to do so clearly existed. When questioned by the state, the claimant denied knowing he had to take the laptop home and alleged co-workers often left theirs in their office. The signed PIP was crucial to the employer’s case. The form clearly spelled out each and every objective the salesman was to meet. 

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