Transcript Document

Presented by Scott Pachico
Client Services Manager
Unemployment Services Corp
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Claims Adjuster, MA DUA 1990–1991
Review Examiner (Hearing Officer), MA DUA
1991–2003
Principal Review Examiner of SE, MA DUA
2003-2005
Quality Control Officer, MA DUA 2005-2006
Hearing Representative for Employers 2006present
Participated in over 21,000 unemployment
hearings in MA, RI, TX, FL, CT, & GA
A Brief History of
Unemployment
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In 1932, in the midst of the Great
Depression, Wisconsin became the first state
in the U.S. to enact an unemployment
insurance law.
Six other states enacted UI laws prior to The
Social Security Act of 1935…
Yup – Massachusetts was one of the 7 States to
enact UI Laws prior to the Social Security Act of
1935
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MA has the most liberal unemployment laws in the
USA.
MA has the highest Benefit Rate in the USA
• 50% of Gross Weekly Wages, up to a max of $698.00
per week.
• Dependency Allowances of $25.00/dependent child.
• Max benefits allowed in MA $20,981.00.
• 30 weeks of benefits in times without extensions, while
other States only allow 26 weeks of benefits.
Reasons for Unemployment
Insurance
The Unemployment Insurance system was
created to stabilize the economy and alleviate
personal hardship stemming from involuntary
job loss.
Reasons for Unemployment
Insurance
The Unemployment Insurance program provides
temporary cash benefits to individuals who are
unemployed through no fault of their own, so that
they can meet their basic financial needs and
provide for their families while searching for new
employment.
Reasons for Unemployment
Insurance
These benefits help to maintain an individual’s
purchasing power; they are spent immediately
on necessities such as food, fuel and housing,
and thus provide a stimulus for local
economies.
In November of 2011, President Obama
signed into law, as part of the Free Trade
act H. R. 2832, new UI Integrity Rules
intended to enhance the integrity of the
UI system nationally.
The legislation includes the provision
(Section 252) requiring states to prohibit
relief from charges to employer UI accounts
if the UI agency determines that :
(A) the payment was made because the
employer or an agent of the employer, was at
fault for failing to respond timely or
adequately to the request of the agency, and
(B) the employer or agent has established a
pattern of failing to respond timely or
adequately to such requests.
The Good:
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Unemployment Insurance tax schedule is
reduced from schedule E to schedule C for
2015.
The Rate Table is expanded to reward
employers with low turnover.
The Bad:
 The
taxable wage base increased to
$15,000.
 Maximum
benefit rate was increased by 3%
(effective 10-5-14)
The Ugly
Higher Unemployment Insurance Taxes can
result as employers pay less into their
reserve balance while payment amounts to
claimants increase or remain the same.
When your reserve balance decreases, the
result is an increase to your UI Tax Rate.
Can a claimant collect unemployment
benefits if they quit their job in
Massachusetts?
If the claimant can establish that they left
their job for good cause attributable to the
employer or its agent, or for urgent,
compelling and necessitous reasons, they will
be paid unemployment benefits pursuant to
MGL C. 151A, Section 25(e)(1) of the
Employment Security Law.
Can a claimant collect unemployment
benefits if they are discharged from their job
in Massachusetts?
Yes, unless the Employer can establish, through
substantial and credible evidence, that the
claimant was discharged either for an act of
deliberate misconduct in wilful disregard of the
employing unit’s interest, or for a knowing
violation of a reasonable and uniformly enforced
rule or policy as long as the violation was not
due to the employee’s incompetence.
MGL C. 151A, Section 25(e)(2)
You should attend the hearing if you had direct
involvement in the separation.
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Direct, credible testimony is critical – you will
need to be able to explain why and when you
took the action(s) connected to the claimant’s
separation.
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Hearsay evidence is allowed, but carries little
weight.
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Notarized statements have limited value as
they cannot be cross-examined.
What to Expect
The hearing is held in a conference room or
over the telephone.
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state-appointed Hearing Officer will
preside over the process.
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hearing will be recorded and all
testimony will be give under oath.
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Other attendees may include the claimant,
witnesses and/or representatives for either
party.
Witnesses may be sequestered at the
discretion of the Hearing Officer.
Most proceedings are completed within 1
hour. Occasionally, the hearing will be
continued and rescheduled if more time is
needed.
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If a case is continued, the next hearing date
is often decided at the end of the initial
hearing.
Once continued hearings are scheduled,
they are usually not postponed due to a
conflict. For this reason, it is very
important that you bring your calendar
(with availability) to all hearings.
What to Bring to the Hearing
All documentation related to the separation
must be available at the time of the hearing,
Depending on the case, the following
documents may be considered relevant to be
entered as exhibits:
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Warning letter(s)
Policies/Rules
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Handbooks
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Security Records
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Resignation Letter(s)
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Work Refusal Forms
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Time Cards
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House/Management
Logs
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Witness Statements
Employee
Acknowledgement
Forms
Advice for Witnesses
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All testimony is taken under oath
Listen carefully to the question and answer
ONLY what is being asked. Don’t volunteer
additional information.
If you don’t understand a question, ask for
clarification.
More Advice for Witnesses
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You are allowed to refer to notes and/or
documents, but you cannot read from a
prepared statement.
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If you don’t know the answer, “I don’t know” is
an appropriate response.
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Credibility is considered when there is
conflicting testimony.
Questions specific to a Quit
There are certain questions that will be asked if the claimant quit. The
burden of proof is upon the claimant. Normally, thee claimant will
testify first.
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What reason did the claimant give for quitting?
When did they give notice, and to whom?
What could the employer have done to accommodate this
employee and prevent them from quitting?
What was done or offered to be done?
What was the claimant’s response?
If the claimant was unable to resolve these issues with their
supervisor, was there anyone else to whom they could have
addressed their dissatisfaction(s)?
Questions Specific to a Quit
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Were there any mitigating circumstances that caused the
employee to quit?
Did the claimant make a reasonable attempt to preserve their
job before quitting (i.e. request a leave of absence or
transfer)?
Questions Specific to a Discharge
There are certain questions that will be asked if the claimant was
discharged. The burden of proof is upon the employer. Normally, the
employer will testify first.
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What was the final incident and when did it occur?
What was the specific reason given to the claimant for the
discharge? Who notified the claimant of the discharge and
when did they do so?
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If the discharge was delayed, was there a reason for such?
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Were any prior warnings issued? When? Did policy require
warnings?
Questions Specific to a Discharge
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What was the date of the final warning?
What were the contents of the final warning? Was it in writing
and did it state the consequences of further infractions?
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Was the claimant aware his/her job was in jeopardy?
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What specific policy/rule was violated?
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Is this policy/rule uniformly enforced?
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How was the claimant made aware of the policy/rule?
Questions Specific to a Leave of Absence
There are certain questions that will be asked if the claimant is on a leave
of absence (LOA).
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Who requested the LOA? Why?
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What type of LOA is it (FMLA, personal, etc.)?
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Dates of the LOA?
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Were the claimant’s responsibilities and rights documented?
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Was there documentation to substantiate the need for the LOA?
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Was an extension to the LOA available, requested and/or
authorized?
Questions Specific to a Leave of Absence
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Was the employee capable of returning to work? With or without
restrictions?
Was restricted duty work available and/or requested? Was it
offered?
What reason did the employee give if not able to return to work from
the LOA? Was there a reasonable alternative offered that could have
protected the employee’s job?
Supervisors and Managers Make a Difference
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Marginal Performers
• No Matter how hard they try, many employees are unable
to meet the standards expected in the job for which they
were hired. They do the best they can, but just “don’t cut
the mustard.” The standards to be expected will vary
from job to job and from supervisor to supervisor. In
order to avoid the payment of unemployment benefits,
the employer must be able to prove that the employee
deliberately failed to meet standards. Of course, the
employee most often states that they did the job to the
best of their ability.
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Marginal Performers (continued)
 Failing to meet standards or being unsuited for the job can be
the result of something over which the employee has control.
That is - failing to follow instructions, insubordination,
tardiness, or a deliberate lack of effort. It can successfully
argued that if the employee was not following instructions,
there is some control over failing to meet standards.
Additionally, if an employee’s performance was previously
meeting standards, but the quality/quantity of work later
decreases, it can be argued that the claimant had the capability
of meeting the employer’s standards and it leaves the claimant
to explain why his/her performance declined. The burden of
proof, however, is upon the employer to show that the
claimant’s was deliberately failing to meet standards or was
negligent in the performance of their duties.
Best Practices for Supervisors/Managers
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Misconduct
• To establish misconduct, the supervisor must (in most cases) first warn
the employee about the misconduct, how to act in accordance with the
employer’s expectation, and that continuing to engage in such will place
the employee’s job in jeopardy.
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A Word on Warnings
• Clear, concise & with a consequence.
• Employee signature (if employee refuses to sign, a secondary witness
signature is helpful).
• Supervisors/Managers can’t always be a “friend” to employees.
Best Practices for Supervisors/Managers
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Then follow through on the warning.
• Condoned behavior = Benefits Allowed.
• Take action immediately.
• Suspend if necessary (i.e. in order to conduct an
investigation).
• Beware of mitigating factors.
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Always respond to inquiries in a timely fashion – usually
10 calendar days is the limit.
Document everything and have employees sign showing
receipt of such.
If you give someone an additional chance because of a
mitigating circumstance, be clear that the behavior will
not continued to be tolerated and explain the reason(s)
why you are giving this additional chance
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Ensure that managers and supervisors uniformly
enforce company rules/policies.
Ensure that managers and supervisors keep detailed
records of incidents in the event that they must appear
at an unemployment hearing.
Utilize the services of a qualified Third-Party
Administrator.
Any Questions?
Practical and scalable HR solutions
P.O. Box 346 Wakefield, MA 01880
[email protected]
www.uscorp.com
Cell: (508) 404-9164
Fax: (781) 246-1394