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The Law Office of. Dustin Stohler. How To Win an Unemployment Insurance Appeal. The Unemployment Insurance Law Firm. Dustin Stohler. The Law Office of. Dustin Stohler. Why are we here?. The Unemployment Insurance Law Firm. To put money back in your pockets. - PowerPoint PPT Presentation
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How To Win an Unemployment Insurance Appeal
Dustin Stohler
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Why are we here?
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
To put money back in your pockets.
Employers pay for improper charges caused by:
• Claimant fraud and mistake;
• Government error;
• Lack of education for employers.
What should you do?
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
• Audit your account to remove improper charges and identify mistakes you are making;
• Take steps to prevent part time, intermittent, and seasonal employees from drawing;
• Track your claims to ensure that improper charges don’t appear on your account;
• Educate yourself and your managers on the practices you should implement now to win claims by terminated employees.
•Question unfair charges.
Taxes
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
• How are tax rates calculated?
• Which benefits are charged to my account?
Benefits charged proportionately to base period employers.
An employer could be in a base period for up to 2.5 years.
Should not be charged for disqualifying events.
Taxes
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
How much will my taxes change?
- Highest rate: $390 to $969 per employee- Lowest rate: $82.50 to $71.25 per employee
If you aren’t at the highest or lowest rate, your taxes will go up in 2011 and 2012, but will approximately equal the benefits charged to your account over time.
.
Benefits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•Eligible claimants can currently qualify to receive:
•Up to 26 weeks of Regular UI
•Up to 73 weeks of Federally funded UI
•Eligible Hoosiers can receive up to 99 weeks of benefits
Eligibility
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Claimants are eligible for benefits if they:
are unemployed through “no fault of their own”;
are able and available for full-time work; and
are actively seeking full-time work.
Unemployed
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Claimants are unemployed if:
they receive no wages or benefits for the week; or
the employee’s regular hours have been reduced due to a lack of work.
Unemployed
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
A claimant is NOT unemployed:
if he reduce his hours (sick, vacation, etc); when he is working his regular schedule; when agreed to be unemployed during the period; during a seasonal employer’s off season; between terms.
Unemployed
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Track the charges to your account.
Expect pushback from the department.
Don’t accept answers that seem unfair.
Winning your claim
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
You don’t have to pay for benefits if the Claimant:- voluntarily quit; or- was discharged for cause, BUT
YOU have to prove the separation was voluntary or for cause.
Discharge for Cause
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
(1) resume fraud; (2) rule violation; (3) poor attendance; (4) willfully damaging the employer's property; (5) insubordination; (6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours; (7) endangering safety of self or coworkers; or (8) incarceration in jail following conviction or for any breach of duty in connection with work.
Rule Violation
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•You CAN fire employees for violating your policies, but you must show:
–There was a policy;–The employee violated the policy;–The employee knew about the policy;–The policy was reasonable; AND–The policy was uniformly enforced.
Rule Violation
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
STEP 1: HAVE A POLICY
•Get a hand book.
•Have it reviewed by a professional.
•Follow it.
Rule Violation
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•TRAIN employees on your policies•Document the training•Keep it in the employee’s file•Get the employee’s signature!
Don’t violate any policy you have issued.
Rule Violation
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
DOCUMENT the reasons for the termination.– Document any progressive discipline, INCLUDING verbal warnings. – Document any investigation that occurred such as witness statements, police reports, and any other evidence of the wrong doing.– Document any warning to employee that his job is in jeopardy.– GET A SIGNATURE!
Voluntary Quits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•If an employee quits, he is ineligible UNLESS he shows he had just cause for quitting.
•Problem: Claimants often deny they quit.– Claimant must express an intent to quit.– If the judge finds claimant was terminated, you have no evidence of just cause.
Voluntary Quits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•DOCUMENTING QUITS - Misunderstandings:–The no show–The altercation
•SOLUTION: Document what occurred and ask them to contact you if they disagree.
Voluntary Quits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
The Harassee
• Show he didn’t follow the reporting structure.• Show that alleged harassment was reasonable discipline, not harassment
– What was said?
– Did you violate the rule?
– Was anyone else treated differently?
Voluntary Quits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Unilateral Changes
• Show that there was no change in terms (job description, employment agreement); or
• Show that the employee agreed to the changes (email chain, letter documenting meeting, etc.)
Voluntary Quits
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Non-disqualifying reasons:– Left for other work– Left to follow spouse (not charged)– Domestic violence (not charged)
Defending the Claim
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•Levels of review:Adjudication
Appeals
Review Board
Court of Appeals
Defending the Claim
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•Respond ASAP with a brief explanation, contact information, and relevant documents.•Document Checklist:
– Policy(s)– Acknowledgement of receipt / training– Evidence of violation (written discipline, warnings, investigation, police reports, termination letters etc.)– Justification for the rule (optional)
Appeal
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•IMMEDIATELY:– Request a copy of the adjudication file.– Fax your participation form to DWD.– Send your evidence to the ALJ and claimant.
Appeal
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•Prior to the appeal–Review adjudication file – what is claimant alleging? Did he make any relevant admissions?–Gather first hand witnesses
•Who witnessed the event•Who investigated the event•HR generally is not a first hand witness
Appeal
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•PRIOR TO APPEAL:–Prepare your witnesses
•Explain the process•Explain their role•Review the documents with them•Walk through their story with them – are there any details they need to research? •Impress upon them the importance of telling the truth
Telephone Hearing
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Get the call- Return participation form quickly.- Provide alternative numbers.
Have evidence ready- Send documents as soon as possible.- Explain any delays.
During the Hearing
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
•Direct testimony: The perfect pitch–Claimant was terminated because he violated the policy against _____, attached as exhibit A.–Claimant signed exhibit B acknowledging he had received a copy of this policy on ___.–Claimant had previously received a written warning for violating this policy on ___, attached as exhibit C.–Present evidence of the violation.–Present testimony on reasonableness of the policy.–Be prepared to show that you treat all violations equally.
Cross Examination
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
• Use adjudication file to prepare for hearing•What will claimant’s story be? •What questions or documents?
• Use questions to introduce facts claimant left out or show that claimant’s story is implausible.• Ask questions that have short answers.•NEVER ask why.
Performance
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Must show that employee chose not to perform.
Consider:- Is it actually a rule violation or insubordination? - Can you show that it is the claimant’s choices?
- Recommend possible improvements- Discipline for failure to implement- Keep proposals as objective as possible
Insubordination
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Must show that employee intended to refuse to carry out a reasonable order.
- Failure to do the job is not enough;- Ambiguities will be construed against you.
What to do? - Clarify that you are giving the employee a direct order;- Clarify that refusal could result in termination; - Confirm that the employee is refusing;- Confirm the employee’s reason for the refusal.
Profanity / Disrespect
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Not always just cause for termination. - Is it insubordination? - Is it a policy violation?
If not, courts will consider factors such as: - was it a single incident or a barrage of profanity;- severity of the language;- the cause of the outburst;- was it directed at an individual; and - who witnessed it.
Drugs and Alcohol
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Need to provide:
- A signed admission;- A professional drug test (including chain of custody documents); or - Document refusal to submit to the test.
Attendance
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
No Policy: Poor attendance may be just cause IF the individual doesn’t have an excuse.
Policy: Termination pursuant to the policy is probably just cause, even if the employee has an excuse, but the courts haven’t ruled on recent legislative changes.
Legislative Update
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
- 50% Penalty
- Gross misconduct
- No fault attendance policies may be just cause
- A tax increase to “fix” the trust fund
- FUTA taxes - will increase by .3% until the rate hits 6.2% or the fund is solvent.
Questions?
Dustin StohlerThe Law Office of
The Unemployment Insurance Law Firm
Dustin [email protected]
www.stohlerlaw.com(317) 937-7323
