Transcript MHA UNEMPLOYMENT COMPENSATION 2010 UPDATE: …

2014 UNEMPLOYMENT COMPENSATION UPDATE:
“YOU CAN MAKE YOUR
FINANCE DEPARTMENT HAPPY!”
WMHFMA & GLACHE
“Leadership, Finance and Hot Topics”
November 19, 2014
NEIL MacVICAR
MHA UNEMPLOYMENT COMPENSATION PROGRAM
MICHIGAN HEALTH & HOSPITAL ASSOCIATION
(517) 323-3152
[email protected]
© 2014 ALL SLIDES AND INFORMATION PROVIDED IN THIS PRESENTATION ARE CLAIMED AS PROPRIETARY AND PROTECTED UNDER ALL COPYRIGHT LAWS, PRIVILEGES AND
RIGHTS. THE SLIDES AND INFORMATION PROVIDED CANNOT BE COPIED OR OTHERWISE USED IN ANY MANNER WITHOUT THE EXPRESS PERMISSION OF THE MICHIGAN
HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]], LANSING, MICHIGAN
MHASC UNEMPLOYMENT COMPENSATION PROGRAM
 A division of the Michigan Health & Hospital Association
 Unemployment Compensation Program was established in 1972
 Currently representing over 300 employers − primarily in Michigan, with several in
Indiana, Ohio, Iowa, Maryland and elsewhere
 Day-to-day claims management operations are located in Okemos, Michigan
 A team of attorneys represents our clients at unemployment hearings
Our Strategy:
We stay ahead of claims by consulting with our clients before:
■ Workforce reductions occur
■ Individual separations occur [discharge, resignation, lay-off, etc.], and
■ Business decisions are made that affect unemployment liability
[acquisition/disposition/merger of business interests].
Our Motto:
“Each unemployment claim demands and deserves individual attention.”
Our Ultimately Goal is Simple:
Control and reduce unemployment costs for our clients.
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SERVICES PROVIDED BY THE MHA-UCP:
CONSULTATION ON METHODS TO MANAGE UNEMPLOYMENT COMPENSATION COSTS
DAY-TO-DAY CLAIMS PROCESSING
REVIEW AND MONITOR ALL BENEFIT CHARGES AND CREDITS
DETERMINATION REVIEW AND APPEALS
THOROUGH AND COMPLETE INVESTIGATIONS
ADMINISTRATIVE HEARING REPRESENTATION BY EXPERIENCED ATTORNEYS
MICHIGAN COMPENSATION APPELLATE COMMISSION REPRESENTATION
UNEMPLOYMENT ACTIVITY AND STATISTICAL REPORTS
UNEMPLOYMENT BENCHMARK AND COMPARISON REPORTS
EMPLOYEE TURNOVER AND VACANCY RATE REPORTS
WORKSHOPS AND SEMINARS ON EMPLOYMENT LAW ISSUES
PERSONNEL POLICY REVIEW
PREPARATION FOR ANTICIPATED WORK FORCE REDUCTIONS
CONSULTATION ON ACQUISITION AND DISPOSITION OF ASSETS
ASSISTANCE FOR REGISTRATION WITH THE STATE AGENCY
ACTION ON LEGISLATIVE/REGULATORY/ADMINISTRATIVE RULE CHANGES
UNEMPLOYMENT BENEFITS
UNEMPLOYMENT BENEFITS ARE FUNDED
ENTIRELY [100%] BY THE EMPLOYER . . .
NOTHING IS “TAKEN OUT” OF AN EMPLOYEE’S PAYCHECK FOR
UNEMPLOYMENT COMPENSATION . . .
THERE IS NO INDIVIDUAL CONTRIBUTION.
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“FOR-PROFIT” EMPLOYERS:
PAYROLL TAXES
STATE PAYROLL TAX ― FUNDS BENEFIT PAYMENTS
•
•
•
•
Ranges from 0.1% to 10.0%
Since January 2012: New Tax . . . “Obligation Assessment”
Payroll Taxes Assessed on the First $9,500 of Each Employee’s
Wages — 4% Tax = $380 per person annually
Claims Experience “Look Back” Changed: From 5 years to 3 years
FEDERAL PAYROLL TAX ― FUNDS ADMINISTRATIVE COSTS
•
Federal Unemployment Tax Act [FUTA] = ~$42 per employee
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“CONTRIBUTING” EMPLOYER UNEMPLOYMENT TAXES
UNEMPLOYMENT
TAXES PAID BY
FOR-PROFIT
EMPLOYERS
MICHIGAN STATE
PAYROLL TAX
STATE
UNEMPLOYMENT
TRUST
NON-CHARGE
ACCOUNT
[1%]
FEDERAL PAYROLL TAX
“FUTA”
0.6% x $7,000 =
$42 PER EMPLOYEE
PAYS BENEFITS
FEDERAL TRUST PAYS
ADMINISTRATIVE COSTS
OF U/C SYSTEM +
FUNDS LOAN PROGRAMS
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“NOT-FOR-PROFIT” EMPLOYERS:
“REIMBURSING” EMPLOYER STATUS
• TAX-EXEMPT EMPLOYERS [IRC §501(C)(3)] MAY ELECT
“REIMBURSING” EMPLOYER STATUS ― HOSPITALS,
SCHOOLS, ETC.
• THESE EMPLOYERS “REIMBURSE” THE INDIANA DEP’T OF
WORKFORCE DEVELOPMENT “DOLLAR-FOR-DOLLAR” ON
ACTUAL BENEFITS PAID TO CLAIMANTS
• NO STATE OR FEDERAL PAYROLL TAX
• NO RELIEF FROM CHARGES VIA THE “MUTUALIZED POOL”
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“REIMBURSING” EMPLOYERS
NO CLAIMS NO LIABILITY
LOW CLAIMS LOW LIABILITY
HIGH CLAIMS HIGH LIABILITY
LAY-OFF HIGH LIABILITY
BOTTOM LINE:
HEALTH CARE EMPLOYERS HAVE A VERY HIGH INCENTIVE TO
CAREFULLY MANAGE THEIR UNEMPLOYMENT CLAIMS
AND
CONTEST CONTROVERSIAL CLAIMS
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Unemployment Claims Filed
[MHA-UCP
Members]
New Claims Filed [MHA-UCP Members Only]
12,000
10,471 10,490 10,245
9,106
10,000
8,246
8,000
6,000
2008
2009
7,498
2010
5,211
2011
2012
4,000
2013
2,000
2014 YTD
0
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POTENTIAL CHARGES FOR
“REIMBURSING” EMPLOYER:
REGULAR BENEFITS ― MICHIGAN
Maximum
Unemployment
Claim =
20 Weeks [as of 1/15/12]
x $362 Per Week
$7,240
Maximum Liability on a
“Regular” Unemployment Claim
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Unemployment Benefit Charges
[MHA-UCP Members]
Benefit Charges in Millions
$50
Potential
Benefit
Charges to
Employers
$45
$40
$35
Actual Benefit
Charges to
Employers
$30
$25
$20
$15
$10
$5
$0
2008
Saved 66%
2009
Saved 59%
2010
2011
Saved 62% Saved 62%
2012
2013
Saved 64%
Saved 63%
2014 YTD
Saved 79%
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“FIRST/INITIAL YEAR” CLAIMS
AND
“SECOND YEAR” CLAIMS
“SECOND YEAR” CLAIMS:
$14,480
$20,000
•
~$10,000
OCCUR PERIODICALLY
$15,000
•
CREATE A “LONG TAIL” FOR
UNEMPLOYMENT LIABILITY
$7,240
$10,000
~$5,000
$5,000
•
CAN SUBSTANTIALLY INCREASE
UNEMPLOYMENT LIABILITY ON A
SINGLE CLAIM
$0
One Claim
Two Claims
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“BASE PERIOD”
WAGES BEGIN:
LAY-OFF OR
NON-DISQUALIFYING
SEPARATION DATE:
DECEMBER 15, 2014
JULY 1, 2014
DECEMBER 15, 2014
3rd Q 2014
4th Q 2014
1st Q 2014
2nd Q 2014 3rd Q 2014
$13,000 EARNINGS IN
EACH
CALENDAR QUARTER
4th Q 2014
BIG RAISE ON JULY 1, 2014:
$20,000 EARNINGS IN THESE
CALENDAR QUARTERS
© 2014 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
LAY-OFF OR
NON-DISQUALIFYING
SEPARATION DATE:
DECEMBER 15, 2014
“BASE PERIOD”
WAGES BEGIN:
INITIAL OR ORIGINAL
CLAIM DATED:
DECEMBER 14, 2014
JULY 1, 2014
3rd Q 2014
INITIAL/ORIGINAL
CLAIM ENDS:
4th Q 2014
1st Q 2014
2nd Q 2014
USE THE WAGES FROM THESE FOUR (4)
CALENDAR QUARTERS
TO ESTABLISH A CLAIM
$52,000
3rd Q 2014
DECEMBER 13, 2015
4th Q 2014
LAG QUARTER AND
FILING QUARTER
WAGES
$26,000
THESE TWO (2)
20 WEEKS OF
QUARTERS
BENEFITS
OF
WAGES PAYABLE
A 52 WEEK
AREINNOT
WINDOW
USED
RESULTING IN A
WEEKLY BENEFIT
RATE OF: $362
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© 2014 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
ORIGINAL CLAIM
END DATE:
DECEMBER 13, 2015
LAY-OFF OR
NON-DISQUALIFYING
SEPARATION DATE:
DECEMBER 15, 2014
“BASE PERIOD”
WAGES BEGIN:
NOW A NEW CLAIM
IS FILED ON
DECEMBER 14, 2015 =
“SECOND YEAR CLAIM”
INITIAL OR ORIGINAL
CLAIM DATED:
DECEMBER 14, 2014
JULY 1, 2014
3rd Q 2014
4th Q 2014
1st Q 2014
2nd Q 2014
THESE WAGES NOW DROP OFF
AND ARE NOT USED
3rd Q 2014
4th Q 2014
1st Q 2015
2nd Q 2015
THESE FOUR QUARTERS ARE NOW THE
“BASE PERIOD” WAGES FOR A NEW CLAIM
3rd Q 2015
4th Q 2015
LAG QUARTER AND
FILING QUARTER
WAGES = NOT USED
QUESTION #2: CAN YOU USE WAGES FROM
THE INITIAL CLAIM’S “LAG” AND “FILING”
QUARTERS TO ESTABLISH A CLAIM?
ANSWER WITH A QUESTION:
DID THE CLAIMANT HAVE “EARNINGS” OF FIVE TIMES [5x] THE
MOST RECENT WEEKLY BENEFIT RATE?
WEEKLY BENEFIT RATE $362 X 5 = $1,810
WHICH EMPLOYER IS CHARGED BENEFITS?
BENEFIT DURATION: ~14 WEEKS
WEEKLY BENEFIT AMOUNT: ~$300 [BIG RAISE IN JULY 2014]
WAL-MART / NEW
EMPLOYER:
• AUTOMATICALLY CHARGED
THE FIRST TWO (2) WEEKS
OF BENEFITS = $600
• REMAINING 12 WEEKS:
$25 PER WEEK
TOTAL = $900
MICHIGAN HOSPITAL:
• REMAINING 12
WEEKS:
$275 PER WEEK
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TOTAL: $3,000
© 2014 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
INITIAL OR
ORIGINAL
CLAIM FILED AND
STARTS ON
DECEMBER 14, 2014
4th Q 2014
1st Q 2015
“SECOND YEAR”
CLAIM ENDS
DECEMBER 13, 2016
2nd Q 2015
3rd Q 2015
4th Q 2015
20 BENEFIT WEEKS
WITHIN A 52 WEEK
WINDOW
1st Q 2016
2nd Q 2016
3rd Q 2016
4th Q 2016
<20 BENEFIT WEEKS
WITHIN A 52 WEEK
WINDOW . . . BUT LAST
ONE COULD BE PAID
FOR WEEK ENDING
DECEMBER 17, 2016
INVOICE FROM UIA
FOR LAST BENEFIT
CHARGE ON “SECOND
YEAR CLAIM” =
LATE 1ST QUARTER 2017
1st Q 2017
ACTUAL PAYMENT FOR
LAST BENEFIT CHARGE =
EARLY 2ND QUARTER 2017
2nd Q 2017
UNEMPLOYMENT COMPENSATION APPELLATE PROCESS
• INITIAL NOTICE OF CLAIM = MONETARY DETERMINATION
– RESPOND WITH COMPLETE FACTS WITHIN 10 DAYS OR YOU MAY LOSE
CREDIT LATER.
• NON-MONETARY DETERMINATION
• NON-MONETARY REDETERMINATION
• HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE
–
–
–
–
–
MIGRATING TO ALL TELEPHONE HEARINGS [POSSIBLY SOME EXCEPTIONS]
BE READY EARLY . . . IN-PERSON OR VIA PHONE.
DE NOVO PROCEEDING — CLEAN SLATE /ONE CHANCE ONLY
HAVE EYEWITNESSES AND SUPPORTING DOCUMENTATION AVAILABLE
REPRESENTATION BY AN ATTORNEY SPECIALIZING IN UNEMPLOYMENT
COMPENSATION IS HIGHLY RECOMMENDED
© 2013 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
UNEMPLOYMENT COMPENSATION APPELLATE PROCESS
• MICHIGAN COMPENSATION APPELLATE COMMISSION:
– 9 PERSONS APPOINTED BY THE GOVERNOR :
• 3 Panels of 3 Commissioners / Majority Vote “Wins”
– REVIEW BASED ON EVIDENCE CONTAINED IN THE TRANSCRIPT OF THE ALJ
HEARING . . . BRING ALL YOUR FACTS OUT HERE AND/OR PLACE AN
OBJECTION ON THE RECORD TO ANY EXCLUDED EVIDENCE.
– RARELY WILL THE CAC DISTURB A CREDIBILITY ASSESSMENT AND RARELY
WILL THEY CONSIDER ADDITIONAL/NEW EVIDENCE.
– NAM: SINCE INCEPTION, THE CAC HAS BEEN VERY FAIR TO EMPLOYERS.
• CIVIL COURT APPELLATE REVIEW:
–
–
–
–
LOCAL COUNTY CIRCUIT COURT
MICHIGAN COURT OF APPEALS ― Recent Medical Marijuana Cases
MICHIGAN SUPREME COURT
U.S. SUPREME COURT
© 2013 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
“UNDEREMPLOYMENT”:
INCREASING NUMBER OF CLAIMS
AND
A BREEDING GROUND FOR
UNEMPLOYMENT FRAUD
HIGH RISK GROUP:
PART-TIME AND CONTINGENT EMPLOYEES
•
“REDUCED HOUR” OR “UNDER-EMPLOYMENT” CLAIMS . . . WHAT ARE THEY
AND HOW DO THEY WORK?
•
WE ARE SEEING INCREASES IN THESE TYPES OF CLAIMS . . . EVEN AMONG
FULL-TIME EMPLOYEES.
•
HISTORICALLY, AN INDIVIDUAL EMPLOYEE MAY NOT HAVE FILED A CLAIM
FOR REDUCED HOURS . . . IT WAS TOO MUCH HASSLE OR TROUBLE.
•
BUT IN OUR CURRENT ECONOMY, THERE ARE NEW FACTORS LEADING TO
THE FILING OF THESE CLAIMS:
– EASY TO FILE A CLAIM [PHONE/INTERNET] + DEBIT CARD
– REGULAR OR MORE FREQUENT “LOW CENSUS” DAYS
– “AFFORDABLE CARE ACT” . . . “FULL-TIME” = 30 HOURS PER WEEK
•
KEY ISSUES FOR UNEMPLOYMENT COMPENSATION:
– ARE THEY “AVAILABLE” FOR OR “SEEKING” FULL-TIME WORK?
– ARE THEY ACCURATELY REPORTING THEIR WEEKLY GROSS EARNINGS
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“ELIGIBILITY” ISSUES
Available for full-time work:
This is a “key issue” for part-time and contingent
employees who file “underemployment” claims.
• The claimant must be available to work full time in a
“suitable "position -- one that conforms with the claimant’s past work
experience, past earnings, and past training. In addition, if the claimant’s
previous position is customarily available on more than one shift (for
example, nursing), the claimant must be available for work on all such
shifts.
• Unemployment Defense Tip:
If you are posting jobs that should be of interest to specific claimants
[ie: appropriate former employees (not discharged) or current parttime/contingent employees] and not getting inquiries from them, you
may want to notify human resources as soon as possible.
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ELIGIBILITY ISSUES (Continued)
Able to perform full-time work:
The claimant must be physically and mentally
able to work in a “suitable” full-time position.
The claimant may satisfy this requirement even if
they are currently not able to work in the last
job held.
This can be a “troubling” area for employers.
Control over this factor is beyond the employer’s
control in most circumstances
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ELIGIBILITY ISSUES (Continued)
Seeking full-time work:
•
A claimant must actively seek full-time employment.
•
Unemployment Defense Tip:
If you are posting jobs that should be of interest to
specific claimants [ie: appropriate former employees
(not discharged) or current part-time/contingent
employees] and not getting inquiries from them, you
may want to notify human resources as soon as
possible.
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MICHIGAN’S BENEFIT OFFSET FORMULAS FOR “UNDEREMPLOYMENT” CLAIMS:
“MATHEMATICAL GYMNASTICS”
EXAMPLE:
Facts / Full-Time Employee:
Hourly Wage Rate:
Weekly Gross Earnings:
Unemployment Benefit Duration:
Assigned Weekly Unemployment Benefit Rate [WBR]:
1.6 Times WBR [“UIA Earnings Benchmark”]:
$10
$400
20 weeks
$213 [can be more if dependents ($5 per dependent; up to $30 additional)]
$368
Example #1 ─ No Earnings / Zero Hours:
Weekly Earnings:
Weekly Unemployment Benefit:
$ 0
$213
Example #2 ─ One (1) Day of Earnings in Calendar Week / 8 Hours [which is less than WBR]:
Weekly Earnings:
Reduced Weekly Unemployment Benefit [$213 - ($80 x .40 = $32)]:
$ 80
$181
Example #3 ─ Two (2) Days of Earnings in Calendar Week/ 16 Hours [which is less than WBR]:
Weekly Earnings:
Reduced Weekly Unemployment Benefit [$213 - ($160 x .40 = $64):
$160
$149
Example #4 ─ Three (3) Days of Earnings in Calendar Week / 24 Hours [more than the WBR]:
Weekly Earnings:
Reduced Weekly Unemployment Benefit [$368 - $240]:
$240
$128
Example #5 ─ Four (4) Days of Earnings in Calendar Week / 32 Hours [more than the WBR]:
Weekly Earnings:
Reduced Weekly Unemployment Benefit [$368 - $320]:
$320
$ 48
USING UP 5
OF THE 20
BENEFIT
WEEKS
Example #6 ─ Five (5) Days of Earnings in Week / 40 Hours [more than the UIA Earnings Benchmark]:
Weekly Earnings:
$400
Zero Weekly Unemployment Benefit:
$ 0
© 2014 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
NOTICE TO EMPLOYEE AND SUPERVISOR/MANAGER:
PENDING UNEMPLOYMENT CLAIM
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© 2013 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
“HOT TOPICS” AND CASE STUDIES:
MANDATORY VACCINATION POLICIES
ATTENDANCE VIOLATIONS
PATIENT/VISITOR MISTREATMENT
DRUG TESTING AND CONTROLLED SUBSTANCE POLICIES
UNEMPLOYMENT FRAUD
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DISCHARGE FROM EMPLOYMENT . . .
MICHIGAN STATUTE:
CLAIMANT IS DISQUALIFIED FROM
UNEMPLOYMENT BENEFITS IF HE OR SHE IS
“SUSPENDED OR DISCHARGED FOR
MISCONDUCT CONNECTED WITH WORK
OR FOR INTOXICATION WHILE AT WORK”
INTENTIONAL AND DELIBERATE DISREGARD OF THE EMPLOYER'S BEST INTERESTS
Section 29(1)(b of the Michigan Employment Security Act
SEE: CARTER V MESC, 364 MICH 538 (1961)
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NON-COMPLIANCE WITH
MANDATORY VACCINATIONS:
• FLU, WHOOPING COUGH, TB, etc.
• EACH CASE REVIEWED INDIVIDUALLY.
• REASON FOR REFUSAL: RELIGIOUS, LEGITIMATE MEDICAL
CONDITION, RANDOM INTERNET RESEARCH, “BAD VIBES”, etc.
• EMPLOYER RESPONSE: ADEQUATE TIME TO ADDRESS,
RESOURCES FOR INFORMATION/EDUCATION,
ACCOMMODATION [ie: wear mask], TIME TO TRANSITION OUT
OF EMPLOYMENT.
• FOR PLANNING PURPOSES, EXPECT TO PAY UNEMPLOYMENT.
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DISCHARGE: ATTENDANCE
• EMPLOYER’S INITIAL BURDEN OF PROOF:
SHOW EXCESSIVE TARDINESS, ABSENTEEISM, NO-CALL/NO-SHOW, OR OTHER
ATTENDANCE INFRACTIONS. INCLUDE WARNINGS LEADING UP TO
DISCHARGE. DO NOT NECESSARILY NEED TO PRESENT THE ACTUAL POLICY.
CAPTURE ALL OCCURRENCES [THE “IN BETWEENS”], NOT JUST THOSE THAT
GENERATE A DISCIPLINARY ACTION.
• CLAIMANT’S OPPORTUNITY FOR REBUTTAL:
EXPLAIN REASONS FOR ABSENCES AND TARDIES . . .
“As a matter of law, tardiness or absences resulting from events beyond the
employee's control or which are otherwise with good cause cannot be considered
conduct in willful or wanton disregard of the employer's interests . . . . Statutory
misconduct cannot be made out under the Carter, supra, definition if the board
factually determines that the absences and tardiness which resulted in the
discharge were with good cause or for reasons otherwise beyond claimant's
control. Washington v Amway Grand Plaza, 135 Mich. App. 652, 354 N.W.2d 299
(1984)
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DISCHARGE: ATTENDANCE
• BURDEN SHIFTS BACK TO THE EMPLOYER:
DISPUTE AND DISPROVE CLAIMANT’S REASONS AND EXPLANATIONS. LEADS
TO CREDIBILITY ISSUES FOR CLAIMANT.
• ATTENDANCE LOG BOOKS OR OTHER RECORD OF ABSENCES AND
TARDIES
– ADMINISTRATIVELY BURDENSOME, SO MAYBE GATHER
“REASONS” ONLY AFTER CERTAIN LEVEL IN THE PROGRESSIVE
DISCIPLINARY PROCESS [ie: AFTER FIRST WRITTEN WARNING]
• CONFIDENTIALITY ISSUES: FAMILY PRIVACY ISSUES
• OTHER “REASONABLE STEPS” TAKEN BY THE EMPLOYER TO PRESERVE
THE EMPLOYMENT RELATIONSHIP:
– ASK EMPLOYEE TO BRING FORTH RECOMMENDATION
– ASK EMPLOYEE TO BRING FORTH DOCUMENTED MEDICAL
SUPPORT FOR CLAIM OF ILLNESS OR FAMILY MEMBER’S ILLNESS,
ESPECIALLY WHEN DEEP IN THE DISCIPLINARY PROCESS
– REMINDER: FMLA OR OTHER LOA, ESPECIALLY IF ILLNESS IS
KNOWN OR SUSPECTED
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DISCHARGE:
PATIENT/CUSTOMER/VISITOR MISTREATMENT
• EMPLOYER BURDEN OF PROOF:
– SHOW THE ALLEGED INCIDENTS ACTUALLY OCCURRED
[EYEWITNESSES, DOCUMENTS, PICTURES, ETC.]
– VERY DIFFICULT FOR EMPLOYER TO WIN IF THE VICTIM
[PATIENT/CUSTOMER/VISITOR] WAS THE ONLY WITNESS AND
THE OFFENDER DENIES THE ALLEGATIONS.
– ALSO, IT CAN BE DIFFICULT TO GET “KNOWN” WITNESSES TO
PARTICIPATE — CURRENT EMPLOYEES, FORMER EMPLOYEES,
BYSTANDERS, ETC. CONSIDER ISSUING A SUBPOENA.
• CLAIMANT BURDEN OF PROOF:
– DENY OR EXPLAIN . . .
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DRUG-FREE WORKPLACE POLICIES
AND
DRUG TESTING:
MOST HEALTHCARE EMPLOYERS HAVE POLICIES THAT PROHIBIT THE USE AND
POSSESSION OF DRUGS, ALCOHOL AND CONTROLLED SUBSTANCE . . .
PROBLEM: MEDICAL MARIJUANA AND DISCHARGE FROM EMPLOYMENT
MICHIGAN COURT OF APPEALS DECISION: OCTOBER 23, 2014
INVOLVES A DISCHARGE FOR TESTING POSITIVE FOR MARIJUANA
HOSPITAL HAD A “NO TOLERANCE” POLICY [ALCOHOL, ILLEGAL SUBST., ETC.]
CLAIMANT ALLEGEDLY HAD A “MMMA CARD” — BUT DIDN’T DISCLOSE
UNTIL UNEMPLOYMENT HEARING.
COURT OF APPEALS = NOT “ILLEGAL” USE, ALLOWED UNEMPLOYMENT
BENEFITS
LAST DAY TO APPEAL TO THE MICHIGAN SUPREME COURT = 11/20/14
35
– “NO TOLERANCE” POLICY? IT IS CRITICALLY IMPORTANT TO
CONSISTENTLY ENFORCE THESE POLICIES . . . BUT KNOW THAT YOU
MAY LOSE SOME UNEMPLOYMENT CLAIMS.
– WHAT DRUGS? POLICY SHOULD DELINEATE PROHIBITED
SUBSTANCES . . . CONTROLLED SUBSTANCES? MEDICAL
MARIJUANA? ALCOHOL? NICOTINE?
– PRE-EMPLOYMENT TESTING: DO NOT LET THE PERSON WORK
UNTIL YOU RECEIVE THE TEST RESULTS, AND AN APPROPRIATE
PERSON REVIEWS THE RESULTS AND SIGN-OFF ON THE RESULTS.
– MAKE A GOOD INVESTMENT: USE THE BEST AND MOST
REPUTABLE TESTING CONTRACTOR AVAILABLE . . . AND THAT YOU
CAN AFFORD. MAKE SURE THE CONTRACT INCLUDES
ARRANGEMENTS FOR THE CONTRACTOR’S EMPLOYEES TO TESTIFY
AT UNEMPLOYMENT HEARINGS.
© 2013 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
UNEMPLOYMENT FRAUD: OVERVIEW
• FRAUD OCCURS MOST FREQUENTLY WITH “REDUCED
HOUR” OR “UNDEREMPLOYMENT” CLAIMS.
• WE ARE SEEING INCREASES IN THESE TYPES OF CLAIMS
WITH “PART-TIME” AND “ON-CALL” EMPLOYEES, AND
OCCASIONALLY AMONG FULL-TIME EMPLOYEES.
• UNEMPLOYMENT AGENCY IS MARGINALLY EFFECTIVE IN
DETECTING FRAUD — THEY MISS IT.
• UNEMPLOYMENT AGENCY IS MARGINALLY EFFECTIVE IN
ENFORCING FRAUD — AT TIMES, NOT PARTICIPATING AT
APPEALS/HEARINGS.
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DETECTING UNEMPLOYMENT FRAUD
WE ARE DISCOVERING FRAUD IN MANY CLAIMS . . .
SOME IS INTENTIONAL FRAUD, SOME IS NOT.
THE MHA UNEMPLOYMENT COMPENSATION
PROGRAM IS DEVELOPING SOFTWARE TO BETTER
DETECT UNEMPLOYMENT FRAUD + ONLINE REPORTS
THE MHA UNEMPLOYMENT COMPENSATION
PROGRAM ADDED A NEW POSITION:
“FRAUD DETECTION COORDINATOR”— ALEX DELPINO
FRAUD DETECTION DEPENDS ON “EMPLOYER
POLICING”. . . EMPLOYERS SHOULDN’T RELY SOLELY ON
THE UNEMPLOYMENT INSURANCE AGENCY TO DETECT
FRAUD.
38
DETECTING UNEMPLOYMENT FRAUD
HOW TO DETECT AND FIGHT AGAINST
UNEMPLOYMENT FRAUD? BE VIGILANT AND
AGGRESSIVE . . .
– CAREFULLY REVIEW EACH NEW CLAIM:
• EMPLOYED? SSN CORRECT? NAME CORRECT?
– CAREFULLY REVIEW UIA FORM 1136:
• UIA FORM 1136 = CAREFULLY STUDY CHARGES ASSESSED
• UIA FORM 1136 = INDICATES THE WAGES REPORTED
• UIA FORM 1136 = SHOWS CREDITS ISSUED TO ACCOUNT
39
THIS IS WHAT “UIA FORM 1136” LOOKS LIKE . . .
40
DETECTING UNEMPLOYMENT FRAUD
HOW TO FIGHT AGAINST UNEMPLOYMENT
FRAUD? BE VIGILANT AND AGGRESSIVE . . .
– CAREFULLY REVIEW EACH NEW CLAIM:
• EMPLOYED? SSN CORRECT? NAME CORRECT?
– CAREFULLY REVIEW UIA FORM 1136:
• UIA FORM 1136 = CAREFULLY STUDY CHARGES ASSESSED
• UIA FORM 1136 = INDICATES THE WAGES REPORTED
• UIA FORM 1136 = SHOWS CREDITS ISSUED TO ACCOUNT
– PROTEST THE CHARGES AND REQUEST CANCELLATION
– REPORT THE FRAUD TO THE UIA
– SHOULD EMPLOYMENT CONTINUE . . . THEFT?
41
DETECTING UNEMPLOYMENT FRAUD
HOW AND WHEN DOES UNEMPLOYMENT FRAUD
OCCUR?
– BOGUS CLAIMS: CLAIMS FILED WITH “BORROWED”
SSNs OR NAME; NEVER WORKED FOR THE EMPLOYER
– EARNED WAGE ISSUES:
• NOT REPORTING EARNED WAGES AT ALL = $0.00
• REPORTING SOME, BUT NOT ALL WAGES
• REPORTING “NET” WAGES AND NOT “GROSS” WAGES
• REPORTING BI-WEEKLY, DURING PAY WEEK ONLY
42
Case Study:
Bronson Healthcare Group
Kalamazoo, Michigan
Multiple Layers of “Unemployment Fraud”:
CLAIM FILED
ON 10/2/11
LAY-OFF FROM
FULL-TIME JOB
ON 9/30/11
STOPS COLLECTING
UNEMPLOYMENT
BENEFITS 1/7/12
EMPLOYER
DISCOVERS
UNEMPLOYMENT
FRAUD AND
REPORTS TO
AGENCY 3/16/13
EMPLOYEE
SUSPENDED ON
3/13/12 AND
DISCHARGED FOR
THEFT ON 3/22/12
EMPLOYEE FILES A
“REOPENED” CLAIM
AND ALLEGES
“LAY-OFF” IN
CERTIFICATION 4/3/12
$
PART-TIME JOB WITH BRONSON
CONTINUES
UNEMPLOYMENT
FRAUD
© 2013 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
CASE STUDY: UNEMPLOYMENT FRAUD ― EXAMPLE #1
“INACCURATE WAGES REPORTED”
11/19/11
EARNINGS
= $308
44
CASE STUDY: UNEMPLOYMENT FRAUD ― EXAMPLE #1
“NO WAGES REPORTED = PURE FRAUD”
12/3/11
EARNINGS
= $167.92
45
ALJ’S DECISION:
LATE APPEAL BY
CLAIMANT:
BIRTH OF CHILD
=
“ACQUAINTANCE
TIME”
SEPARATION
ISSUE:
SAVINGS
FOR
BRONSON =
$3,717;
OTHER
EMPLOYER =
$5,915
FRAUD
PENALTIES:
RESTITUTION
= $6,499;
DAMAGES =
$8,622
© 2009 MICHIGAN HEALTH & HOSPITAL
ASSOCIATION UNEMPLOYMENT
COMPENSATION PROGRAM / NEIL A. MAC
VICAR, VICE PRESIDENT
FINAL COMMENT
“UNEMPLOYMENT
COMPENSATION MAY NOT
BE AN AVOIDABLE EXPENSE,
BUT IT IS A MANAGEABLE
EXPENSE . . .”
Neil Mac Vicar
Michigan Health & Hospital Association
MHA Unemployment Compensation Program
(517) 886-8331 or (517) 323-3152
[email protected]
© 2014 MICHIGAN HEALTH & HOSPITAL ASSOCIATION UNEMPLOYMENT COMPENSATION PROGRAM / NEIL A. MAC VICAR, VICE PRESIDENT [[email protected]]
QUESTIONS?
COMMENTS?
DISCUSSION AND OPEN FORUM . . .
48