Basic Benefit Training MCLE 2014

Representing Unemployed Workers at Unemployment Insurance Proceedings

What Is Unemployment Insurance (UI) ?

 Non-means tested cash assistance program established in 1935  Law and policies set generally by federal government  States determine benefit levels, duration & disqualification  Employers are source of funding for UI benefits, but only taxed on 1 st $15,000 (Solvency Fund)  UI is first line of defense in a recession  G.L.c.151A, sec. 74: UI aw shall be liberally construed in favor of the worker and the worker’s family 2

Resources to Understand Unemployment

      

State law: G.L. c. 151A & DUA regs: 430 CMR; 801 CMR sec. 1.02 DUA policies: Service Representatives Handbook Mass. Unemployment Advocacy Guide (2014-2015) DUA web site

: www.mass.gov/lwd/unemployment-insur/

Board of Review Decisions

: http://dwd-webapp 01.detma.org/bor_decisions

DOL website

: workforcesecurity.doleta.gov/unemploy/

Legal Services Website

: www.masslegalservices.org

Other good resources: Thomas A. Mauet, Trial Techniques Robert Schwartz, Your Rights on the Job, 5 th Ed.

3

Funding Unemployment Insurance

 A tax is levied on every employer covered by the law.

 The tax rate is based on the taxable wage base, the # of employees, the # separated from employment in the past year, and tax schedule.

 Nonprofits and governmental employers can self-insure.

4

The Administration of Unemployment & Job Training Programs (2014)

Executive Office of Labor & Workforce Dev.

Secretary of Labor Rachel Kaprielian

Department of Unemployment Assistance (DUA) Director Michelle Amante (UI & Labor Market Data) Department of Career Services (DCS) Director Alice Sweeney (One-Stop Career Centers)

5

Eligibility for Unemployment

 UI eligibility if:     totally or partially unemployed

Guide, Q.9

separated from employment through no fault earned at least $3,500 and worked approximately 15 weeks in the prior year (20 weeks for federal UI) capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation)

Guide, Q. 8

 Base Period (BP) & Benefit Year (BY) 6

How To Apply

 File claim or check claim status with MA Dept. of Unemployment Assistance (DUA)   Call 617-626-6800 or toll-free 1-877-626-6800, 8:30-4:30 Call w/SS# 0,1- Monday; 2,3 - Tuesday; 4,5,6 Wednesday; 7,8,9 - Thursday; any # - Friday   Walk in help at Boston UI and all career centers Since 7/1/13: UI Online (English only)

Guide, Q.1

Practice tips: UI application complete only when get to “confirmation page;” if choose mail correspondence, will not get email reminders; if choose email correspondence, will not get mailed hard copies.

7

Calculating Unemployment Benefits

 Usually, about ½ average weekly gross wages  up to maximum set on Oct. 1 (now $698/week)  + allowance of $25 per dependent child  Dependency allowance capped at 50% of UI check  Benefit usually based on 2 HQ earnings (div. by weeks, div. by 2 = WBA)  Total benefits are < of 36% of BPE or 30 x WBA BPE = Base Period Earnings; HQ = high calendar quarter; WBA = weekly benefit amount

Guide, Q.4

8

Duration of UI Benefits

 State UI may last up to 30 weeks (during federal benefits 26 weeks)  May be less if work income fluctuated or worked less than a year  UI may be extended    to participate in DUA-approved training, by federal extended benefits (ended Dec. 2013), or both.

9

Must any job be accepted?

No, only “suitable” job.

A job is not suitable if:      detrimental to health, safety, or morals doesn’t fit employee’s training or experience has worse pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test” commuting distance is unreasonable/not comparable vacant directly due to strike, lockout, or other labor dispute  requires joining union or limits joining or retaining membership in a union

Guide, Q. 8

Special rules apply for Domestic Violence situations

10

To ensure UI benefits continue or to establish eligibility if initially denied:

 Every week must use English-only UI Online or TeleCert (English, Spanish, Portuguese, Cantonese) to certify active work search.

 Claimant must keep certifying eligibility

even if initially denied UI

 Predate may be possible - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause reasons) – if more than one week, contact call center 617-626-6800  Document work search: 3 work search contacts per week on 3 different days and keep work search log in case DUA requests copy

Guide, ,Q. 1, 6 & 10.

11

Can a claimant work part-time without losing the whole UI benefit?

 Yes – if earns amount less than 1/3 of WBR  Gross earnings up to 1/3 of WBR disregarded - “earnings disregard”  Additional part time earnings are deducted $ for $ from UI.   Must report earnings  DUA does a cross match with DOR NOTE:   If quit part-time job for disqualifying reason after leaving primary job, deductions will continue to be made – “constructive deduction” (CD) CD regs 430 CMR 4.76 (8/16/13) eliminate or reduce application of CD: * if had no knowledge that would lose primary job * if part-time work was for fixed period, CD limited to that period * no CD if returns to part time job or finds new part time job.

Guide, Q. 45, 49

WBR = weekly benefit rate (excludes dependency allowance)

12

Can a claimant participate in training while receiving UI?

 Yes, must be first approved by DUA  Training program: 2 years or 3 years for ESOL/Basic combined with vocational training; stand-alone ESOL is approved  Job search waived while in training  Can get up to 26 weeks of extended UI during training  Extended UI for training: after 12/28/13 must apply for training w/in 15 weeks of a new or continued claim (unless tolled)

Guide, Q. 48, 54 & DUA website.

13

Is UI Taxable?

 Yes. If want taxes withheld, must make a request.

 DUA sends out 1099-G, available at www.mass.gov/dua/webcert , call 617/626-5647, or request through UI Online (“Payment History”)  If don’t withhold, responsible for taxes owed at tax time.

14

Must be authorized to work to collect UI but:

• Different requirements in

base period

&

benefit year

: Base period: 3 categories – 1) lawfully admitted for permanent residence at time of work; 2) lawfully present to work; 3) PRUCOL Benefit year: must prove work authorization

PRUCOL = permanently residing under color of law

Guide, Q. 51

15

Systematic Alien Verification of Entitlement (SAVE) Must provide A# and document verifying work authorization – DUA checks ICE database through SAVE - “primary verification” – If problem with verification - photocopies of documents sent to ICE “secondary verification”

Note

: UI must be paid during verification

Contact GBLS if questions about immigration status

16

17

Sequence of a Claim (1)



Claimant

files claim with DUA on-line or telephone 

DUA

notifies employer of claim 

Employer

has 10 days to respond  If the employer checks “laid off,” benefits start shortly after a one-week waiting period.

  If employer does not timely respond - not a party unless “good cause” Alert: watch out for responses by employer “agents” e.g., TALX, USC.

18

Sequence of a Claim (2)

If not a layoff, DUA conducts an investigation

 DUA requests info from employer and claimant 

DUA

makes benefit determination 

DUA

issues a Notice to Claimant of Disqualification

or



DUA

provides UI benefits (debit card is default; must choose direct deposit – no more paper checks) 19

Sequence of a Claim (3)

Claimant’s Statement

 assist claimant before presenting her claim to claims adjuster (in person, phone or UI Online)  claimants may receive multiple questionnaires (in mail, only employers during last 8 weeks; on line, employers during last 15 months)  help with chronology, relevant facts, state of mind, and supporting documents 20

Sequence of a Claim (4)

Employer’s Statement

    Employers often outsource UI functions to companies who may have no first-hand knowledge UI Online favors employer agents who know right “buzzwords” and as repeat users can more easily navigate it Consider contacting DUA Determinations Dept. for reversal if information is erroneous Employer must swear to truth of statement under pains and penalties of perjury. 430 CMR 5.02 (8).

21

Sequence of a Claim (5)

Appeals

 If UI denied

claimant

good cause) has

10 days

to request hearing (30 days if  If UI granted

employer

cause) has 10 days to appeal (30 days if good  Note: 60 days if claimant is Limited English Proficient (LEP) and no limit if LEP and not informed in primary language. 430 CMR 4.14.

 All claimant records are on line and appeals can be requested through UI Online

Guide Q. 52, 56

22

Sequence of a Claim (6)



DUA

sends hearing notice –watch out for hearing postponement deadline 

DUA

holds administrative hearing 

DUA

issues a hearing decision (note: often only client gets decision – so be sure to check)  Losing party has

30

days to appeal to

Board of Review

by fax, mail (post mark date), or UI Online.

Always appeal meritorious case to Board --- if lack resources, advise claimant to do so.

23

Sequence of a Claim (7)

Board of Review may do the following:

    Deny further review Do nothing - deemed denied after 21 days (court appeal due within 51 days of appeal) Allow & remand to DUA Allow & Board reviews record  Allow & Board may hold hearing (G.L. c. 151A, § 41)

Note

: Board now posts important decisions on web & many are referenced in Guide.

Guide, Q. 64

24

Sequence of a Claim (8)



Losing party

District Court has 30 days to appeal Board of Review’s decision to  Claimant, employer & DUA are all parties (unless single party issue) – must serve complaint within

7 days

of filing by certified mail, return receipt requested. G.L. c. 151A, § 42.



District Court

decision can be appealed to

Appeals Court

then to

Supreme Judicial Court (by cert)

and  Claimants need to continue to certify their eligibility using UI Online or TeleCert during appeal process

Guide, Q. 65

25

Reconsideration/Redetermination

 Remedy if time for appeal expired & not more than 1 year since the most recent decision  Letter to DUA Director Michelle Amante requesting reconsideration under G.L. 151A, § 71  Decision fully discretionary  If DUA initiates redetermination (1 year from original or 4 years if fraud), must notify claimant of opportunity to present evidence before its decision and before benefits are stopped G.L. c. 151A, § 71; 430 CMR 4.30 et seq; 11.01 et seq.

26

Waiver of Overpayment

Eligible for Waiver of Overpayment if:

  there is no proof of

fraud and

re-paying the money would:  Either “defeat the purpose of benefits”  Or would be against “equity and good conscience”

G.L.c. 151A, sec. 69; 430 CMR 6.00 et seq.

Note: UI Online has caused erroneous overpayments or overpayments established many years or decades ago. Contact GBLS.

Guide, Q. 63

27

Is it really fraud?

    Waiver available only if no finding of fraud Examine whether fraud finding includes finding of fraudulent intent - i.e., “state of mind” to intentionally defraud DUA Did claimant have capacity to commit fraud – should consider age, intelligence, physical, mental, educational, and linguistic limitations, including facility with English OR did claimant make a good faith mistake of fact If no intent, challenge through hearing or redetermination A finding of “fault” or “fraud” requires evidence that the claimant intentionally provided false information or intentionally withheld information for the purpose of receiving benefits to which she was not entitled. See 430 CMR 6.03 (defining “fault”).

28

29

Informal Fair Hearing Rules: 801 CMR 1.02



Agency:

DUA/Hearings Department



Hearing Officer:

Review Examiner



Parties:

Claimant and Employer (unless single party issue)

Your prep: ask to observe a hearing or view mock hearing (available on You-Tube) Guide, Q. 57

30

 Who can appeal: either party  Evidence: formal rules of evidence do not apply  Proceedings: electronically or tape-recorded  Discovery:   DUA file Personnel Record (G.L. c. 149, §52C)

Request only if strategic to do so

31

Review docs in DUA’s Hearing File  UI Request for Information sent to employer

* examine date for timely return

 Notice to Claimant of Disqualification  Statements from employer and claimant  Notice of hearing  Any other documents submitted by parties to claims adjuster or otherwise submitted through UI Online 32

Claimant preparation:  Take the time to thoroughly prepare client    * at least 3 meetings * average time for case prep – 25 hours Think about employer’s best case and how to meet it and confront bad facts Write out direct, cross of employer and potential cross of your client * role play with supervisor/colleagues and then prepare client Describe hearing “scene” and what to expect at hearing

Guide, Q. 60, App. H.

33

Rights and duties of parties

 Present witnesses  Cross examination  Oral testimony  Documentary evidence 34

Direct Examination

Do not ask leading questions!

      Use open-ended questions Tell a story that fits with theory of case (

see

Mauet) Chronology of events backwards Group your direct into subject areas Do not dwell on unimportant details Do not interrupt your witness 35

Direct Examination

Prepare you client for hidden traps

 Is client able to work?

 Is client available for work?

 Is client actively seeking work?

 Is the job suitable?

36

Re-Direct Examination     Your client or your witness After your witness is cross-examined, you can re direct (only if you need to do so) Do

not

use it to bring out nit-picking points Use your re-direct to: * Clarify a point, or * Elaborate on a subject (brought out on cross) that helps your client 37

Cross Examination

Only if you must!

 Did the witness hurt you?

    Do you have real ammunition?

Do you know how the witness will answer the question?

Ask

leading questions (require yes/no)

Avoid

“why” or open-ended questions 38

Documents and Objections

 Relevance  Hearsay  Introducing a document into evidence * e.g., authenticity of document: dated, signed, letterhead  Privilege 39

Closing Argument

      Make it short (< 2 minutes) & to the point Connect the dots Use to highlight the most favorable facts Do

not

recite the entire hearing Do

not

lecture the review examiner on the law Can submit proposed findings of fact & rulings of law

Guide, App. K

- * If necessary, ask for 24 conform facts to evidence hours to 40

  DUA provides interpreters at hearings at

no cost

to claimants

*

1.5 hour hearing Claimant or claimant’s advocate

must

request interpreter Problems with Interpreters? Contact: Marisa de la Paz, DUA Multilingual Services, (617) 626-5471 41

Based on Separation

42

Disqualification: Discharge

Discharge: G.L. c. 151A, § 25(e)(2)

(1) Deliberate misconduct (2) A knowing rule violation

Employer has burden of proof

Exception: Domestic Violence   No disqualification if discharge is due to circumstances resulting from DV Includes individual’s need to address the physical, psychological and legal effects of DV 43

Discharge: “Deliberate Misconduct” …

Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest    Claimant’s state of mind/mitigating circumstances Intentional disregard of employer’s interest and expectations Employer must prove BOTH statutory elements

Guide, Q. 11-13

44

Discharge: “Knowing Violation” (1)…

of a “reasonable and uniformly enforced” rule or policy



A knowing violation requires

intent

 Claimant must have intended to violate the rule or policy  See: Still v. Commissioner of Employment and Training, 423 Mass. 805, 672 N.E. 2d 105 (1996)   Claimant must have been

aware

policy of rule or Consciously aware

at the time of the act

45

Discharge: “Knowing Violation” (2)

 Rule or policy must be

reasonable

 Rule or policy must be

uniformly

enforced both with respect to other employees and the individual employee (employer cannot disqualify a person for violations it had repeatedly tolerated in the past without imposing discipline) NOTE: Incompetence does not constitute a violation

Guide, Q. 14-18

46

Discharge examples…disqualifying or not?

– Swearing at a supervisor – Tardiness after “final” warning – Failure to meet production goals – Stealing guest property – Fighting with co-worker – Excessive absences to go to therapy to deal with DV Remember: state of mind 47

Disqualification: Leaving

Voluntary Quit: G.L. c. 151A, § 25(e)(1)

(1) Good cause attributable to the employer (2) Urgent, compelling and necessitous reasons

Claimant has burden of proof

Exception: domestic violence

Guide, Q. 33 Guide, Q. 21 - 32

48

Voluntary Quit: “Good Cause”…

attributable to the Employer

 Claimant must have made reasonable efforts to resolve the problem unless futile  Exceptions: Domestic violence & cases involving allegations of sexual harassment ; racial, or other unreasonable harassment  General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficient

Consult: Your Rights on the Job to determine if employment law violations.

49

Voluntary Quit: “Urgent, Compelling & Necessitous”

Non work-connected reason – G.L.c.151A, sec. 25(e)(3):  Claimant

must

have made reasonable efforts to preserve job, unless futile (therefore, consider state of mind)  Employer’s

account not charged

(if insured)  Benefits paid from UI solvency fund  May raise “availability” issues

Key - exploration of client’s circumstances.

50

Special rules for temp agency jobs:

* Claimant m ust prove that contacted temp agency to see if more jobs available before applying for UI * Written notice must be provided to claimant in customary way and include statement that failure to request reassignment will affect rights to UI, & the job must be suitable.

G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)); and many good Board of Review decisions

Guide, Q. 38

51

Voluntary Quit Example…disqualifying or not?

 Shift change or transfer  Unfair reprimand  Harassment  Inadequate pay  Lack of transportation  Domestic violence  Temp assignment ends 52