News & Press

Jaw-Dropping Update on Massachusetts 2021 Unemployment Tax Rates

Each year, Massachusetts “tax paying” employers (not Reimbursable employers) pay an annual statutory UI Solvency Assessment. The solvency rate used in the calculation of each company’s UI experience for 2021 was announced today and is quickly reverberating through the employer community.  The Massachusetts Department of Unemployment Assistance has set the rate at 9.23%, which is an approximate 1600% increase from last year’s rates! The uniform solvency assessment is designed to cover the cost of benefit payments not directly chargeable to individual employers. However, as required by the non-charging provisions of the CARES Act, all regular Massachusetts COVID-19 related claims paid to eligible workers employed by contributory employers (for-profit and tax paying) are “relieved” to the state’s Solvency fund. This rate is computed annually in accordance with the statutory requirements of M.G.L Chapter 151A and is not within the discretion of the DUA to modify.

Employers in the Commonwealth recently received good news with the unemployment insurance rate freeze locking rates at “Schedule E” for 2 years. This clearly is news on the other end of the spectrum. Employers were not forewarned of the extreme Solvency Assessment escalation and the DUA has indicated the 9.23% rate is due to state law and cannot be overridden by their agency.

To distill this further, Covid-19 related claims were not directly “charged” to the individual experience rated accounts of Massachusetts employers in 2021.  Thus, the earned rate of employers was not subject to escalation as a direct result of Covid-19 claim payments.  The payments were re-directed and charged to the Solvency Fund financed by ALL employers through the Solvency Assessment surcharge, as a shared cost.  This policy prevented many employers from developing negative reserve balances, which would have likely made their 2021 UI base tax rate even higher.  However, it seems now the state aware of the Trust Fund status and solvency mechanism, relied upon the use of this mandated assessment to replenish the Solvency Fund.  In short, they simply shifted the direct rate escalation and liability (due to the forced shut down of our economy) to another line item of every employer’s rate notice. Even those who may have maintained full employment or experienced very little in claim activity.  Regrettably, the DUA and government officials did not alert the employer community, nor provide them sufficient opportunity to mobilize legislative interventions to off-set the impact of this measure.

As the Solvency Fund historically pays for dependency allowances and state funded extended benefits, which were substantially greater last year with the historical increase in unemployment insurance claims – it is not hard to see how the fund would be depleted. Unfortunately, the Solvency Assessment Rate is not discretionary, and the Secretary does not have the ability to set a rate that will not result in a balanced Solvency Fund.  It appears the only way this matter can be addressed is through Legislative action. UTCA has already initiated steps to pursue any and all forms of redress, including engaging legislators directly to pursue legislative remedies immediately. It is our understanding President Biden’s recent infusion of stimulus funds to state governments may be eligible to offset UI Trust Fund insolvency, and we support any calls to do so.

We are asking our clients and impacted employers to contact your legislators  to address this unprecedented and unsustainable cost increase to our very vulnerable employer community.  It is our humble opinion, employers still recovering from economic devastation of the pandemic, are in no position to withstand additional tax burdens and this will ultimately cause more job losses.

Please stand by for more updates and information related to UTCA’s activities to pursue legislative relief and galvanize a coalition of employers in this effort.  Timothy Phelan, General Counsel, Suzanne Murphy, CEO and Evan Murphy, Director of Business Development will be spear-heading efforts related to mobilizing clients in addressing the Solvency Assessment.

 

Atty. Timothy Phelan: (413) 686-9275

tphelan@utcainc.com

 

Suzanne Murphy: (413) 686-9271

s.murphy@utcainc.com

 

Evan Murphy: (413) 686-9877

emurphy@utcainc.com

Massachusetts Unemployment Excise Rate Pending Approval with Baker

 

Taxing Times

Massachusetts Bill H.90 “An Act financing a program for improvements to the Unemployment Insurance Trust Fund and providing relief to employers and workers in the Commonwealth” is currently pending Governor Charlie Baker’s approval. The bill has gained a lot of publicity as employer-friendly legislation that would prevent a potential increase (tax schedule E to G) of UI tax rates by 60% for some employers. With the massive UI payouts as a result of the pandemic, the commonwealth’s UI trust fund is likely to be insolvent by 2022. So in a move to prevent insolvency without dramatically increasing the UI tax schedule, Bill H.90 proposes an additional “excise rate” that will be assessed to employers along with their current UI contribution rate. The excise rate increases with the base UI contribution rate. You can view the proposed schedule below or view a separate attachment here.

Mass Bill H.90 Unemployment Excise Table

What does this mean to you?

It seems all but certain the proposed bill will be signed. Shortly thereafter, the Massachusetts DUA will have to work to get out all the 2021 Massachusetts Annual Tax Rate Notices  to employers which have been delayed. The notices should feature the new excise rate as well. Until those notices are issued, employers, their payroll providers or TPAs cannot file their quarterly employment and wage detail filings. Q1 2021 filings are typically due by 4/30/21. It is unclear if any extensions will result due to the delay in tax rate notices that are typically received between mid- December and mid- January.

As a tax-rated employer in Massachusetts that had to layoff or furlough employees due to the pandemic, there is a chance that the Covid-related charge relief efforts extended by the state kept you from significant tax increases. Raising the UI tax-rate schedule would have seriously reduced the positive effect of that relief. Depending on how severe or how long your reductions were (or still are) the smaller proposed “Excise Rate” might be palatable to you. As an employer who was fortunate enough not to be greatly affected by the pandemic, your outlook is likely less rosy as you figure out how to budget for this additional expense.

Whatever your viewpoint might be, the key to controlling unemployment cost is the same. It is now more important than EVER before to seize every opportunity you have to limit UI benefit charges to your account. With benefit charge payments higher than ever before and the new excise rate, the cost associated with missing or surrendering protest opportunities has become much higher.

D0 you feel like you don’t have the insight you need? Do you understand what your unemployment activity is telling you?  Does it feel like you’re paying claims you shouldn’t be?  Feel free to contact us here, we’re here to help in any way we can.

APRA and unemployment – what employers need to know!

ARPA Unemployment

 

The American Rescue Plan Act of 2021  Act has passed.  You’ve now sifted through all the articles about the third stimulus check and I’m sure your mind goes to the next most exciting question…..which unemployment provisions were affected?!

Many of the provisions enacted in the CARES Act were extended, as they were set to expire as of Sunday, 3/14/21. Here’s a brief refresher and explanation of what effect ARPA has now:

Greater Non-Profit Relief

From UTCA’s standpoint, this may be the single most significant and needed change to the previous federal relief efforts. Non-profit, reimbursable (or “self-funded”) employers incurred disproportionately higher unemployment costs that have had severe impacts to their operations. Due to the mechanisms of how state trust funds are funded, reimbursable employers were left out of the same 100% federal relief of Covid-19 related benefit charges. The CARES Act called for a 50% reimbursement of these charges. Some non-profits were fortunate enough to be in states that increased relief to 100%, but most states adopted the federal guidance at 50%. Under ARPA, that rate of relief increases to 75% from 3/15 through 9/6. While this is a positive step, UTCA continues to advocate for 100% relief and hopes local and state legislators persevere to include greater forgiveness in future legislation.

Pandemic Unemployment Assistance (PUA) 

This brand-new for 2020 program was a scramble to get instituted across all the state unemployment agencies. Being paid through federal funds, it offers a $600 per week payment to those traditionally ineligible to receive unemployment benefits (self-employed, gig workers, 1099s) who were unable to work due to Covid-19. The passing of ARPA will now extend the weeks of benefit payment eligibility to 9/6/2021.

Federal Pandemic Unemployment Assistance (FPUC)

FPUC is the often-discussed, sometimes controversial weekly “boost” provided by the federal government in addition to the state issued weekly benefit amount. This is relative to those who normally qualify for state unemployment and who are unable to work due to Covid-19. In most states this is a period of 26 weeks, though some vary as high as 30 weeks (Massachusetts) and some as low as 12 weeks (North Carolina).  This weekly boost was originally set at an additional $600 per week on TOP of state benefits. Many wondered if this rich benefit deterred some claimants from returning to work, as in some states the $600 was exponentially higher than the max benefit rate allowed. After the expiration on 7/31/20, the Lost Wages Assistance Act provided some relief in the fall of 2020, but most commonly at a reduced rate of $300 per week and most payments were issued until the week of 9/5/20. The CARES Act extension was signed on 12/27/20 that has bought us to the current term of FPUC, which issued payments from the first week of January but again at a reduced rate of $300/week. The original outline of ARPA called for an increase of $400 per week, but ultimately was voted to remain at $300 but to extend 9/6/2021.

Pandemic Emergency Unemployment Compensation (PEUC)

PEUC is paid to individuals who have exhausted all rights to state unemployment compensation. The amount to be paid is the amount of regular compensation plus $300 per week (consistent with amount of Pandemic Unemployment Compensation). This is similar to how traditional extended UC Benefits adds weeks to regular UC and continues with the additional $300. The extension of this program from the original CARES Act, it’s extensions and now in ARPA brings the total weeks of PEUC to 53. This is after the initial state UI weeks are exhausted.

Waiting Week Reimbursement

As provided initially in the CARES Act, the federal government was reimbursing states for waiving their waiting week periods. In an effort to allow claimants to file and be paid in a timely fashion, the federal government has agreed to pay this week if states re-enter into an agreement. States varied on their adoption and expiration of this waiver, with some ending it as early as April of 2020, while some states never had established waiting week policies. Similar to the previously mentioned extensions, ARPA will make this waiver available through 9/6/21.

Aiding Administration and Fighting Fraud

ARPA has allotted eight billion dollars to aid efforts in processing claims more efficiently. Unfortunately, the pandemic exposed many of the legacy processes and platforms that state UC agencies had relied on. Coupled with a trend of reducing their own workforces prior to Covid-19, massive claim backlogs, system crashes, employer and claimant complaints have resulted. The CARES Act had provided funds to enact changes, and it is understood that much of these funds were used on creating systems to properly administer the new PUA programs at the state level. It is unclear what these federal funds are contingent upon and if updating state systems that aren’t relative to carrying out “Federal activities relating to the administration of unemployment compensation program” would qualify.

With the historic claim levels came an even more shocking number of fraudulent unemployment claims. Every state has been impacted, causing a massive strain on state agencies, employers and their employees who are the direct victims of the UI fraud schemes. Measures to combat these attacks have been inconsistent, and in some instances created greater exposure of claimant data. Worst yet, means to add security measures such as additional ID verifications steps have greatly slowed claims processing times. Per ARPA, the federal government has dedicated two billion dollars to “detect and prevent fraud, promote equitable access, and ensure the timely payment of benefits with respect to unemployment compensation programs”. This is much needed, but states need to be very wary of the consultants and technology they align themselves with as they rush to find solutions.

State Forgiveness and “TBD”

Also, per ARPA the federal government has agreed to extend waivers of accrued interest on loans issued to states to pay unemployment compensation. This is in effect through 9/6/21.

What ARPA does not provide a clear, specific distribution to state UI trust funds, however, states are provided with large allocations of funds that may be used to address the costs of the Pandemic. It is yet to be determined how states will be able to utilize funds and what contingencies they may be subject to. This is critical as states are weighing serious tax rate increases which could impact the cost to employers for years to come. Some states have already enacted surcharges or temporary increases, while some are agreeing to freeze rates in the short term. It’s clear that UI trust funds across the country are in danger. UTCA is working to verify what it available to states and how the funds can be used.

Overwhelmed?

Is your head spinning yet? As we continue to “unpack” this enormous bill we will continue to track how the states will adopt these new programs and extensions. If you have questions as to how this might relate to your workplace or employees, don’t be afraid to contact us here .

 

 

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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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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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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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