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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!

Paying for Permanent Vacations?

Rested :    Relaxed :   Returned to Work

With the arrival of summer, most of us are enjoying the sunshine, flowers, cool breezes, picnics and those much-anticipated vacations. As employers, we balance the day to day operation around staff rotating through their vacation schedules and manage the coverage gaps accordingly. Unfortunately, at the same time, employers often see a higher incidence of issues with some employees who do not manage vacation periods well. This includes more issues with absenteeism, quitting their jobs, no call/no shows, not returning on time from a vacation (including leaves) or other types of work attendance or schedule compliance problems. This frequently occurs when individuals are unable, or unwilling, to return from a personal leave, an FMLA period, vacation or other kind of leave. While ever more frequent during warm sunny months, it does occur year-round, but we traditionally note an uptick in these types of claims during the summer. If not managed properly, these issues can contribute to unwarranted and increased unemployment costs.

The unemployment statutes and regulations governing each state are separate and distinct from individual state maternity laws, the FMLA (federal), the Americans with Disabilities Act (ADA), discrimination laws, wrongful discharge case law and various ever-expanding statutory mandates and regulations currently in existence. Although an employer may be compliant with one or more legal obligations under any number of laws, that does not necessarily or often relate to a strong unemployment compensation case. In fact, there are numerous laws actually in conflict with unemployment standards or other laws. Dealing with the same set of facts may result in differing consequences and determinations, both pro and con, when applied to each individual law. This has been an issue when addressing unemployment laws when it comes to an employee’s ability to return to work following an approved leave of absence or vacation.

A common scenario occurs when an employee is on an approved leave (or vacation) from the employer. The company has complied with all their legal requirements and have held the employee’s job, pay, etc. open and available for the employee upon the expiration of the leave. The employee however tells the employer they are still unavailable to return from the leave. The employer calls their labor attorney who advises management the company has fulfilled all of their legal requirements under the law, so they can let the employee go. Confident in the attorney’s advice, the employer terminates the employee accordingly. The employee then files for unemployment compensation, submitting a letter from the employer to the local UI agency saying they were let go because they were “unable to return from a leave of absence”. The company thinks they have an open and shut winner but are shocked to receive a determination awarding benefits to the former employee. What happened?

While each state varies slightly, when an employer initiates a separation of employment, as they did in the example cited, it must be for misconduct. Someone’s inability to return from a leave is not misconduct or a violation of policy. Good ways to improve the case to defend against unwarranted charges and assist the employee in maintaining their employment are as follows:

  • Make sure to offer the claimant some other job, within any possible light duty restrictions a doctor may have imposed
  • Offer an extension to the leave to a given date (closed end). Speak with the employee to determine a realistic and workable date and request additional documentation as necessary
  • Require the employee to undergo an IME (independent medical exam)
  • Consider laying them off subject to recall if the circumstances are appropriate

It is important to remember, just because the individual may not be able to return to the full time work they previously performed for your organization, does not mean they are not “able and available for full time work” in another job capacity. It only means they weren’t able to return to their previous full-time job with your organization. Unfortunately, we do see claimants “venue shopping” in terms of claiming availability and fitness for duty, where unemployment is concerned but making opposite assertions where disability or workers’ compensation is sought. Where statements conflict and they are available to the employer, it is prudent to obtain these documents for use to contest unemployment claims.

Leaving Lines Open

The most effective tools to safeguard an employer from unjustified claim payments is to keep good records and lines of communication open. We have seen employees take three-week vacations, when they were approved for only two and argue they “thought” they had three weeks. All return to work dates should be in writing. Beginning and end dates should be communicated. There should be a written and enforced requirement for notifying the employer if something unforeseen happens while out on vacation. If it is a leave period, employers should include language, prior to the beginning of the leave, setting forth the employee’s responsibilities if they are unable to return (HR notification, doctor certification, management communication, etc.).

Sun isn’t shining on your current UI process? Want to talk through a tricky leave or  employee getaway gone awry? Forego the message in a bottle, just reach us  here. We promise to leave out the vacation puns.
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You Can’t Quit, You’re Fired!

 

Winning Unemployment Quit or Discharge Claims

Every state unemployment agency has the enviable job of determining which separation standard applies when an unemployment claim is filed. Seems like a layup (a little March Madness nod), but often it isn’t so clear.

Adjudicators must determine whether a claimant was:

1.) Discharged from their employment

2.) Quit their job

3.) Are still employed

They must decide who initiated the separation of employment to apply the proper section of law. If the separation appears to have been initiated by the employer, the discharge statute then controls whether that individual is eligible for UI benefits and the legal burden of proof is on the employing unit. If it appears the employee initiated the separation, the voluntary quit statute is applied. This burden of proof falls on the claimant.

Straightforward right? Not so much.

Some separations can be confusing to employer and claimant alike, particularly where there was little or no proper communication.  Here’s a couple head scratching (but not uncommon) scenarios you seasoned HR professionals or management leaders may have experienced:

The “act like nothing ever happened” employee

If an employee is a “3-day no call no show” and the employer’s policy states that is considered a “job abandonment or voluntary quit”, what happens if the employee shows up to work on day four?

Do you fire that person?

Are they still considered a quit?

What if the employee says they don’t want to quit and never intended to do so?

A few things to consider are the claimant’s “state of mind”, during the period of absence. As all state adjudication make exception for this (more on that later). Other considerations like whether they were able to notify their supervisor can also blur the lines. Throwing another curveball, the employer may fire the employee for violating a no-call, no-show policy, only to have the claimant tell the unemployment office they quit.

Ultimately, the unemployment adjudicator must make that determination. However, an employer’s best line of defense is ensuring clear, well-written policies are provided plainly outlining an obligation to communicate with them in the event of an absence.  This safeguard employers as much as possible should the burden of proof shift from the claimant (a resignation) to the employer (discharge for policy violation).

The “heat of the moment” employee

“That’s it, I’m leaving, I can’t take it anymore, I quit!”. The employee storms out of the workplace. As their blood goes from boil to simmer, in hindsight, the employee reflects on their actions and can’t believe they quit. Their job is necessary to support their family. They realize daytime TV is awful, and their significant others have found a whole host of projects for them to take on.

Oops.

Returning to work the following day, they apologize for their outburst and tell their manager they didn’t mean to quit, acted rashly and want to get back to work. They state they were frustrated due to personal issues, which left them short-tempered and thus thinking unclearly. The manager at this point is confused as to what to do, and actually relieved to see this employee exit on their own terms.

 What happens now?

 Is it still a quit? Is it a discharge?

How will it impact unemployment?

Can the company say, “We already accepted your resignation”?

For unemployment purposes, most states recognize a “cooling-off” period and focus on the individual’s state of mind at the time. If in the heat of an exchange, as a reaction to something in the workplace (or outside) an employee quits and subsequently “cools off”, indicating they didn’t mean to quit, most states expect employers to rescind the hasty resignation. Particularly, where the employee attempts to rescind in short order. If an employer decides not to do so, it will be considered a discharge. The question then becomes why would you not allow the employee to return to work, if you had no plans to separate them? There is no specific length of time limiting the cool down period, but usually the more time that goes by the less likely an employer will be required to accept the claimant’s request.

Obtaining detailed written documentation of the event, like witness statements, will help tremendously. Even though the employer may be required to recognize an employee’s request to preserve their job, employers may still decide to discharge the employee for their actions (i.e. abandoning the shift, using profanity, insubordination, etc.).  Once again, that old “state of mind” will still factor into the state’s decision, as they determine if those actions are deliberate, willful or intentional.

Safe bets

We are continually amazed by all the twists, turns and monkey wrenches thrown into what look like clear separations. As always, your best practices will strengthen any separation particularly when you strive to apply them uniformly. Where “good cause” reasons exist to rescind a hasty resignation, with an otherwise quality employee, doing so can be prudent.  After all, the best way to avoid a risky unemployment claim is doing everything you can to make sure it’s never filed.

Looking to share a war story, get a bit of insight or learn a bit more about managing unemployment? Drop us a line here. We don’t bite.
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Formal warnings result in huge overpayments

The U.S. Government Accountability Office (GAO) recently released their study examining unemployment overpayments on a national level. The study took a very targeted view of states in which claimants are issued formal “warnings” for not meeting their work search requirements. The results were staggering, as it was found that $1.6 billion (of $3.9B total)  in over overpaid unemployment benefits in 2016 were made to claimants that were in violation of their requirement to actively search for work.

READ THE FULL STUDY HERE

The Department of Labor clearly affirms and acknowledged these findings, and is working to draft guidance for state agencies. However, they cite the challenges they have in efficiently implementing a timely system to identify and allow claimant recourse before suspending payments.

As UTCA has always endeavored to protect employers from unwarranted UI costs at all levels, this study is troubling. Any overpayment  an employer incurs can impact an experience rating or direct payments made to a state UI agency. Although UTCA actively tracks any and all charges to our employers, and diligently protests erroneous charges, there is no direct insight into the agencies tracking of a claimant’s requirement to search for work. The costly inefficiencies identified in the study lie within the state agencies. We will continue to track the developments as the Department of Labor looks to find a unified solution to this daunting overpayment issue.

What does this newly-quantified study mean to employers? The GAO’s study tells us it is  more crucial than ever before for employers to be aware and pro-active in their approach to managing the unemployment. Creating a system to ensure you are minimizing your UI cost factors within every means you can control is the key.

If you are an employer unsure of the efficiency of your current UI program, or want the peace of mind to know they are taking advantage of all their opportunities to control cost, contact us today. There is never a fee for your initial assessment.

 

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Major system reform looming for PA unemployment

 

 

 

Pennsylvania’s unemployment has been a hot topic of discussion in recent weeks. Not in the broad, glowing sense that we are seeing cheery unemployment news covered nationally. While PA is enjoying a decline in their rates of unemployment (4.7 percent as of October) , they are still a tick higher than the current U.S. average (4.1 percent). The real news is coming from Harrisburg, as recently passed legislation will fuel major changes in the state’s administration of unemployment services.

After effective legislation in 2016, several state UC service centers  were closed and the PA Dept. of Labor staff was depleted by 500 workers. In tandem with reliance on antiquated technology, the productivity and responses within the unemployment compensation program have suffered. The performance issues are well documented here. Fast forward to this past week, the PA House has officially passed resultant legislation to not only return employees to the ranks, but finally push through the online system conversions that have been in play for years. Rejoice!

With most UI news being centralized around claimants and the relation to state and federal economy, the employer’s experience is often lost. Shocker.  Fortunately, even amidst service strain at the PA Department of Labor, UTCA experienced little disruption to the employer-based response and adjudication process. Our established agent presence, reputation and relationships at the state allowed us to continue working efficiently to advocate for our employers.

So what does the change legislation change mean for employers?

The increased workforce at the Pennsylvania  unemployment compensation service centers can only mean good things for employers and claimants alike.

Likewise, in our experience, the conversion to online-based claims systems ultimately benefit everyone.

But pump the breaks.

The transition process can be a bit challenging as states and their employees roll out the platform. Employers managing their UI programs should remain hyper vigilant of any communication from the state when the system gets closer to implementation. Many system launches have left employers ill-informed while eliminating paper claims, without knowing they are responsible for registering and regularly monitoring the new web-based platforms. This lack of awareness can lead to a serious risk in increased charge activity for missed claims, and benefit integrity compliance penalties. We have engaged several prospective employers over the last five years that thought their claim activity had pleasantly (and magically) disappeared. When in reality, they were never made aware of the “switch” and had been incurring copious claims and charges. For Pennsylvania employers already struggling to manage unemployment, be “on-guard” as the online system develops further. UTCA will continue to actively engage the PA Dept. of Labor to stay abreast of new developments, while continuing to champion our employers through whatever hiccups new technology may pose!

As always, if you are an employer challenged by managing unemployment (or an inefficient UI vendor), don’t hesitate to contact us. We’re here to listen, not push.

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UTCA Gives Thanks to 20th Annual Client Update Sponsors!

UTCA would like to pass along our sincere gratitude to all sponsors of the 20th Annual Client Update!

In preparation for the October 5th event, UTCA would like to give special thanks to Paragus Strategic ITCheckWriters Payroll, Johnson & Hill Staffing Services, and Employers Association of the NorthEast (EANE). These key partners, who provide widely-respected services or support to the employer community will have exhibitor tables set up at our update. Our exhibitors will be on hand to say “Hello” to many of our mutual clients and will be available to provide information to those interested in learning more about their organizations. Please take a few minutes to stop by their tables and chat!

If you have not already, please make sure to RSVP “Yes” to this years’ update! Please join us for our traditional program with a hot breakfast, networking with your peers, and in honor of our 20th Annual Conference new and updated prizes! Participants will have a chance to win Springfield Thunderbirds tickets, restaurant gift cards, and much more.

The event will be held at the Sheraton Springfield, Mahogany Room, 1 Monarch Place. Registration begins at 8:00am. The program begins at 9:00am and concludes at 12:30pm. As always, this is a free conference for UTCA clients. We hope to see you there!
         

 

 

 

 

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Arkansas’ Employers Could See Significant Reductions in Their Unemployment Taxes

Effective January 2018, most of the provisions in House Bill 1405 will take effect – one of those being the reduction of the unemployment insurance benefits claim period from five months to four months. The combined efforts of this provision and others noted in this bill plan to reduce Arkansas’ Employers’ insurance taxes by $50 million annually. The local Fort Smith Regional Chamber of Commerce hopes that it will also encourage those drawing unemployment benefits to look for work faster.

Click here for a summary of HB 1405: https://openstates.org/ar/bills/2017/HB1405/ 

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Georgia’s Jobless Rate Decreases as Job Creation Rate Rises

The jobless rate in Georgia has fallen to its lowest levels in almost 10 years as the State’s Labor Industry is creating jobs and putting a record number of people back to work. In the month of June alone, over 27,000 jobs were created which is almost double the state’s normal job creation rate.

Read the full story here:  http://www.ledger-enquirer.com/opinion/article163369158.html

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Tennessee Sets Internal Unemployment Rate Record

The state of Tennessee’s Department of Labor is setting records within their unemployment compensation program. Not only did they announce an historically low unemployment rate of 3.6%, but they are also paying out approved unemployment claims at a record rate due to recent system upgrades. According to the Department of Labor, the majority of people waiting for benefits are receiving their first payment within 10 days.

Read more about this story here: http://www.wsmv.com/story/35935559/tn-unemployment-rate-lowest-in-history-system-paying-people-faster

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Vermont Ruling Expands Employment Classification of Independent Contractors

In a recent ruling issued by the Vermont Supreme Court, owners of a limited liability company (LLC), can be considered an independent contractor even when they do not have any employees.

In a statement issued by the Commissioner of the Department of Labor, Lindsay Kurrle noted this ruling “provides a level of clarity that we have not had previously.” She went on to state, “The classification of independent contractors is an issue that the department is committed to — both ensuring that workers are properly protected, and that businesses who want to utilize independent contractors are doing so with confidence and predictability of how the law is applied.”

Read more about this ruling here: http://www.benningtonbanner.com/stories/high-court-widens-pool-of-independent-contractors,511798

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