Transcript Document
Employers Take Charge
Office of Unemployment Insurance Administration
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT CHAPTER: OVERVIEW
What is Unemployment Insurance (UI)?
Created in the mid-1930s following the Great
Depression
Provides temporary weekly benefits for
workers who have lost their jobs ̶ through no
fault of their own
OVERVIEW
Why Do We Need UI?
To lessen the hardships due to involuntary
unemployment
To lessen the need for public assistance and
charity
To maintain a steady workforce
To stabilize the purchasing power and the
economy in the area
OVERVIEW
Employee Eligibility Requirements
Must make a claim for benefits
Must register for work with the LWC or be a
member of a recognized craft union
Must be able to work, available for work, and
actively searching for work
Must be unemployed for a week of waiting
Must have earned sufficient wages during the
base period of employment
OVERVIEW
What is the Base Period?
OVERVIEW
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT CHAPTER: HOW UI IS FUNDED
2 Types of UI Tax Accounts
Taxes paid quarterly based on payroll. Standard rate applies
for 24 months, then rate determined by “experience:”
– increases or decreases in payroll
– the amount of UI benefits paid to former employees
Must report wages quarterly, but not taxed until UI benefits
are paid
– required to pay back the benefits dollar-for-dollar
HOW IS UI FUNDED
Your UI Tax Rate & Reserve
When you pay your state UI
taxes each quarter, the money is
credited to your reserve account
in the UI Trust Fund
When eligible claims are paid,
reserve funds are reduced
This reduction in the reserve will
increase your tax rate
Only employers contribute, not
employees
HOW IS UI FUNDED
One of the
best ways
to reduce
your rate is
to lower
your benefit
charges.
What is a Non-charge?
When benefits paid are not charged to the
employer
A non-charge is granted to an employer upon:
– valid protest from the employer
– disqualifying separation
Is paid from the Trust Fund to which all
employers contribute
HOW IS UI FUNDED
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT CHAPTER: BEST PRACTICES
The cost of turnover is high, so employers can take
charge when it comes to lowering separation costs.
1) Screen candidates carefully
2) Have applicant sign on the dotted line
3) Report new hire and rehire to the Louisiana
Directory of New Hires
http://newhire-reporting.com/LA-Newhire/default.aspx
4) Document. Document. Document.
5) Terminate, if needed
BEST PRACTICES
6) Exit interview
7) Submit Separation Notice (Form 77) within 72
hours of any separation
https://www.laworks.net/Form77
8) Respond promptly to all LWC correspondence
9) Provide documentation of all violations of
company policies
10) Review benefit charges quarterly
BEST PRACTICES
Reporting New Hires
Federal and Louisiana state law requires employers to report
newly hired and re-hired employees in Louisiana to the
Louisiana Directory of New Hires within 20 days of hire
The "date of hire" is considered to be the first day services are
performed for wages by an individual
All new employees, re-hired or recalled employees, and
temporary employees must be reported
There is a $25 penalty per employee who is not reported, or up
to $500 for collusion between employee and employer
BEST PRACTICES
Separation Issues
Quit /
Voluntary
Leaving:
Burden of
proof is on
the claimant
DON’T TURN QUIT
INTO A DISCHARGE
If an employee resigns with notice and
the employer does not let them work
until the end of that notice, it becomes
a discharge.
If you no longer want the employee to
remain at the workplace, then pay them
through the end of the notice and allow
them to leave.
BEST PRACTICES
Separation Issues (cont.)
Discharge:
Burden of proof
is on the
employer
An employer may discharge an
employee for any reason or no
reason at all (as long as it is
not discriminatory); however,
to disqualify them from
unemployment insurance
benefits, the separation
must be for misconduct as
defined by UI law
BEST PRACTICES
Separation Issues (cont.)
Misconduct is the mismanagement of a position of
employment by:
– action or inaction
– neglect that places the lives or property of others
in jeopardy
– dishonesty
– wrongdoing
– violation of a law or company policy that ensures orderly
work or the safety of others
On- or off-the-job use of nonprescription controlled
substances
BEST PRACTICES
Separation Issues (cont.)
Aggravated Misconduct:
– If the misconduct has impaired the rights, damaged
or misappropriated the property of, or damaged the
reputation of the employer, the separation could be
considered under the aggravated misconduct provisions
of the law
– If proven, the employer may receive a non-charge
BEST PRACTICES
Once a decision has been made, you
have the right to file an appeal
Appeals:
Must be filed
within 15 days
Board of Review
District Court
Must be filed within 15 days
A hearing is held
Only opportunity
to enter evidence
Review of documented
evidence
Must be filed
within 15 days
Can argue
correctness of
decision
Review of transcript from
the hearing
Decision takes 30 to 60
days
May continue to appeal as high as the U.S. Supreme Court
BEST PRACTICES
General Rule
The best practice and approach to successfully
defend against unemployment claims occurs
before a claim is filed.
Avoid Easy Pitfalls
The law itself is meant to “favor” claimants, not
employers.1 Therefore, Employers should avoid easy
mistakes.
1.
Louisiana jurisprudence has held that because of the remedial purpose of unemployment
compensation, the term “misconduct,” as used in the statute, should be construed so as to
favor the awarding of benefits rather than disqualification. See, Lafitte v. Rutherford House,
Inc., 40,395(La. App. 2d Cir. 12/14/05), 917 So.2d 684; Lockett v. Forster, 04-0171(La. App. 4th
Cir. 6/23/04), 879 So.2d 323; Victor v. Administrator, 96-251(La. App. 3d Cir. 6/26/96), 676 So.
2d 1123; Taco Bell Corp. v. Perkins, 95-225 (La. App. 5th Cir. 9/26/95), 662 So. 2d 34.
Avoid Easy Pitfalls
Actions to Avoid Prior to Separation
Terminating an employee in the heat of the moment;
Failing to discuss the problem with the employee prior
to termination;
Terminating an employee without reasonable warning;
Ignoring company procedures or prior warnings;
Taking no action when employees complain.
Avoid Easy Pitfalls
Post-Claim Actions to Avoid
Missing a claim response or appeal deadline;
Assuming that if LWC does not recontact the company, the claim
has been dismissed or denied;
Changing the explanation of the work separation;
Failing to prove the case against the Claimant;
Failing to present firsthand testimony from eyewitnesses.
Building Your Case
Questions you must ask:
Was there a specific incident close in time to the discharge?
Can you show that the employee violated a known policy or law?
Are witnesses available?
Do you have documentation to support your reason for
termination?
Did you submit a copy of your policy and/or procedure to the
Agency and/or the Appeals Tribunal?
Building Your Case
Questions you must ask (con’t):
Did the employee progress all the way through the disciplinary
system?
Was the employee confronted with the problem and given a
chance to explain?
Did you address discrimination issues?
Does the employee belong to a protected class?
Building Your Case
Questions you must ask (con’t):
Discrimination issues (con’t):
Was the treatment given to the employee different from that
given to unprotected class (Did race, gender, religion,
disability, national origin, retaliation/reprisal play a factor in
your treatment of the employee)?
Was the treatment given to the employee different from that
given to other workers in general?
Was the employee involved in a protected activity?
Involved in a claim over wages, workers’ compensation, or
discrimination?
Building Your Case
Questions you must ask (con’t):
Jury or military duty?
Voting?
Refusal to commit an illegal act?
Inquiring about the legality of an instruction from the employer?
Whistleblowing?
When in doubt about the above, seek legal counsel prior to taking any adverse job
action.
Always respond completely and with as much detail as possible to the initial
request for separation information.
Building Your Case
Documentation of disciplinary measures is very important for
use in justifying a personnel action and defending against
claims.
Give the employee a copy, and place a copy in the personnel file;
Have the employee or a witness sign the warning;
The warning should clearly let the employee know what the next step will be if
the problem continues:
Follow your established policies and procedures as closely as possible. Do
not issue warnings until you are ready to take action and mean it;
Do not issue a “final warning” until and unless you are ready to terminate the
employee upon the very next occurrence.
Include an “I disagree” signature line to obtain documentation from employees
who refuse to sign.
Absenteeism: The 500 Lb. Gorilla in the Room
What the law says…
Louisiana jurisprudence has held that an employer may discharge an
employee for excessive absence from work, but there is no misconduct if
the absences were for valid reasons, beyond the control of the
employee and with proper notice.2
2.
See, City of Monroe v. Tolliver, 954 So.2d 203 (La.App. 2 Cir. 3/7/07). The fact that the
employer's decision to discharge employee for violating employer's attendance policy was
legitimate, justifiable, and reasonable did not necessarily classify the conduct giving rise to the
discharge as “misconduct” which would disqualify the employee from receiving unemployment
benefits. See also, Craighead v. Administrator Dept. of Employment Sec. of State of La., 420
So.2d 688 (La., App. 2 Cir. 1982). Claimant's involuntary absence from work due to acute
alcoholism beyond his control did not constitute grounds for disqualification from
unemployment benefits.
So… how does one defend against an
absenteeism claim?
1)
Ensure that your policy covers absenteeism and tardiness.
– Also include answers to questions such as: How much advance notice
should be given? To whom should the notice be given? Is it alright to leave a
message? Who does the employee contact if his supervisor is unavailable?
2)
Do not use FMLA-covered absences as a basis for any disciplinary action
or in the calculation of “chargeable” and “non-chargeable” absences.
3)
Keep in mind that though your company may utilize a “point” or “no fault”
system, Louisiana will not disqualify a claimant if the final absence was for
a valid, documented reason.3
4)
Document!!!
– Fully document attendance and hours worked;
– Decide if you will require a doctor’s excuse for medical absences and include
that language in your policy.
5)
Do not delay termination if file contains necessary documentation.
3. Pursuant to the Federal Discharge Guide Sheet of the 301 Handbook , “It is necessary to establish why the employer decided to
discharge the claimant on that particular day…. The discharge must be reasonably related in time to the act causing the separation.
Misconduct is not established if a substantial time period has elapsed between the act or when the employer was aware of the act
and the separation. See also, Harris v. Houston, 97-2847(La. App. 2d Cir. 11/4/98), 722 So.2d 1042; Sledge v. Whitfield, 531 So.2d
291 (La. App. 2d Cir. 1988); Gunderson v. Libby Glass, 412 So.2d 656(La. App. 2d Cir. 1982); Craighead v. Administrator v.
Administrator Dept. of Employment Sec., 420 So. 2d 688(LA. app/. 2d Cir. 1982.
Misconduct: Explaining the Confusion
Under Louisiana case law, a violation of a company’s policy
or rule does not per se constitute misconduct.
– Louisiana jurisprudence has held that whether a policy violation
warrants withholding unemployment benefits is a question which
must be determined not by examining the employer’s rule but by
statute.4
– Rationale: An employer’s employment decision can be legitimate,
justifiable, and reasonable without the conduct giving rise to the
discharge constituting "misconduct" which would disqualify the
employee from receiving unemployment benefits.5
4. See, e.g., Lafitte v. Reliant Energy Resource Corp., 37,709 (La. App. 2d Cir. 10/17/03), 859 So.
2d 233 and Savoie v. Labove, 96-952 (La. App. 3d Cir. 3/5/97), 692.So.2d 626.
5. City of Monroe v. Tolliver, 41,969 (La. App. 2d Cir. 3/7/07), 954 So. 2d 203.
Misconduct: Explaining the Confusion
THE BURDEN OF PROOF RESTS WITH THE
EMPLOYER TO PROVE MISCONDUCT. 6
Proof must be by a preponderance of the evidence.7
Hearsay alone is not competent to overcome an
employee’s direct, contradictory testimony.8
6. Buggage v. Assumption Parish Sherriff Dept., 05-1058 (La.App. 1st Cir. 5/5/06), 934 So.2d
180,181; Weatherly Labs v. Adm'r, Office Emp. Sec., 94-317 (La.App. 3 Cir. 11/2/94), 649 So. 2d
623.
7. Id.
8. Bean Dredging Corp. v. Administrator, Div. of Employment Sec., Dept. of Labor, 679 So.2d 1019,
96-76 (La.App. 3d Cir. 8/28/96); Glazer Steel Corp. v. Administrator, Office of Employment
Security, 98-0441(La. App. 4 Cir. 9/30/98), 719 So. 2d 674, 679.
Misconduct: Explaining the Confusion
The circuits are divided as to the interpretation of misconduct.
– First Circuit Court of Appeal
• Applies the statutory definition of “misconduct”
– Misconduct is “mismanagement of a position of employment by action of inaction,
neglect that places in jeopardy the lives or property of others, dishonesty,
wrongdoing, violation of a law, or violation of a policy or rule adopted to insure
orderly work or the safety of others.”
– The statutory definition encompasses intentional acts and acts of omission
(negligence).
• Has held that the 1990 amendment to La. R.S. 23:1601(2)
overruled the jurisprudential definition (i.e., “willful and wanton”) of
misconduct9
9. See, Fontenet v. Cypress Bayou Casino, 06-0300(La. App. 1st Cir. 6/8/07), 964 So. 2d 1035.
Misconduct: Explaining the Confusion
– Second Circuit, Third Circuit, Fourth Circuit, and Fifth Circuit
• Still apply the jurisprudential standard (i.e., “willful and wanton” and
“intentional and substantial disregard”)
• Only misconduct which constitutes intentional or substantial
disregard of employer’s interests will defeat employee’s entitlement
to unemployment benefits.10
• Have expressly refused to apply the statutory definition
10. See, e.g., Savoie v. Labove, 96-952 (La. App. 3d Cir. 3/5/97), 692. So.2d 626.
Misconduct: Explaining the Confusion
In the past, Administrative Law Judges (ALJs) have applied
the standard of misconduct as used by the circuits in which
the claimant resides.
Currently, ALJs apply the statutory definition of misconduct
without regard to circuit construction.
– Legislation is a solemn expression of legislative will.11
– When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as written and
no further interpretation may be made in search of the intent of the
legislature.12
11. La. C.C. art. 2.
12. La. C.C. art. 9.
The Appeals Process
Identify individuals with firsthand knowledge of the events.
– If necessary, ask the Appeals Tribunal to issue a subpoena for
their appearance.
Gather relevant documents (i.e., disciplinary records, policy
statements, handbooks, witness statements, attendance
records, etc.) pertaining to their separation.
– If not submitted at initial protest level, then submit to Appeals
Tribunal and claimant prior to hearing.
Call in to confirm your participation in the hearing.
– Request a postponement if your firsthand witness is
unavailable.
The Appeals Process
Be available at the designated time.
Prove your case. Don’t rely on the
administrative law judge to carry your burden
of proof.
If you disagree with the outcome, be sure to
appeal within the appropriate time delays.
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT CHAPTER: FORMS
Submit Separation Notice Timely
Separation Notice (Form 77):
– Must be submitted to LWC within 72 hours
of date of separation
– A copy of the completed form must be
given to the employee at time of separation
or mailed to his/her last known address
within 72 hours
– Can be completed online
FORMS
Find the Separation Notice Online
Find the Separation Notice Online (cont.)
Why So Many Forms?
Notice of Claim Filed (Form 110)
– Mailed to last employer as listed on the initial claim form
– Employer has 10 days to respond
Notice to Base-Period Employers (Form 152)
– Mailed to each base-period employer if claim is monetarily eligible
– Shows employer’s liability and requests separation information
– Employer has 10 days to respond
Other Forms
– Notice of Claim Determination (LDOL 385)
– Notice of Satisfaction of Disqualification (LDOL 485)
FORMS
Additional Fact-Finding Requests
Message to employer related to
QUIT (Form 499)
Message to employer related to
DISCHARGE (Form 599)
FORMS
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT CHAPTER: REPORTING WAGES
Reporting Requirements
Employers are required to file on a quarterly basis
Reports are due 30 days after the end of each quarter
Employers may file their reports & pay online or by mail
Employers with assigned account numbers can obtain
rate & benefit charge information online
Current rate information can also be obtained via our
automated system by calling 1-866-783-5567
REPORTING WAGES
What Does it Take to be Compliant?
must file electronically effective the first quarter of 2010
must file electronically effective the first quarter of 2012
must file electronically effective the first quarter of 2014
All active employers must file a Quarterly Wage and Tax Report
Report must be received by due date:
All employees must have a valid nine-digit Social Security number
REPORTING WAGES
What Does it Take to be Compliant? (cont.)
Wage details must be shown for all
employees
All reports must have employee counts
completed
Reports submitted in paper form must be on
the approved LWC version
REPORTING WAGES
Penalties Assessed for Non-compliance
Untimely submission, underpayment and non
payment of the Quarterly Wage and Tax Report
– Interest = 1% on unpaid contributions every 30 days
– Penalty = (unpaid contributions + interest) x 5%
• applied every 30 days until max of 25%
Incorrect submission of the Quarterly Wage and
Tax Report
– $25 for that quarter if the failure is not more than 30 days,
with and additional penalty of $25, for each additional 30
day period – not to exceed $125.
REPORTING WAGES
Benefits of Electronic Filing
Filing electronically via www.laworks.net allows you to submit
accurate and timely reports with ease
Electronic filing has built-in safeguards that eliminate issues
such as:
Reports being lost in the mail
Reports with incomplete Social Security numbers
Electronic filing also provides
Wage information stored securely, easily retrievable
The ability to submit unemployment tax payments online,
securely
REPORTING WAGES
Benefits of Electronic Filing (cont.)
Validations in the web-based program will not allow
submission until all necessary information is
entered
– Prevents duplicate submission of same
employee wage records
Tax calculations based on information submitted
for prior quarters
REPORTING WAGES
Electronic Filing Methods
Manual insertion of data
Excel spreadsheet upload
– Enhancement now in final stages of development will allow upload
of files in Social Security Administration (SSA) format
.TXT upload
NOTE: Submission on disks will NOT be accepted
after implementation of new online service
REPORTING WAGES
Coming Soon: Online Report of
Change
Expected to launch
later this month
Access through
secure login to Tax
Services
Current print form
ES4A will be
eliminated and no
longer accepted
Features of Online Report of
Change
Ability to make changes
to address, phone
number, etc. with no
need for staff
assistance
Other changes can be
submitted online for
staff to research and
resolve
Will require e-mail
address to be included
for future reference
CHAPTERS: Sections for Review
Overview
How UI is Funded
Best Practices
Forms
Reporting Wages
NEXT: OTHER LWC SERVICES
Introducing HiRE
What is HiRE?
Helping Individuals Reach Employment
Integrated Web-Based Automated System
Provides seamless customer service for
–
–
–
–
Employers
Claimants
Job Seekers
LWC Staff
What’s in it for Employers?
Each employer will have a web portal into HIRE where
he can transact all LWC-related business
–
–
–
–
–
–
–
–
–
–
–
–
Quicker Access to Job Seekers
File Quarterly Wage and Tax Report
Pay Taxes
Get forms, information, and reports
Post a Job Order
Register for Unemployment Tax Account
Search Resumes
File an Appeal
View Benefit Charge Statements
View Annual Tax Rate Notifications
Ask questions
And More……
What’s in it for Employers? (cont’)
HiRE’S no cost features available now
Matches job opening with the skills and experience of job seekers who
use our services
Presents your job posting to qualified and available job seekers who live
where you need them
Enables you to select talent pool of potential candidates with relevant job
experience
Provides 24-hour access to all services anywhere with an internet
connection
What’s in it for the JobSeekerClaimant?
HiRE will treat the job seeker/claimant
as the same individual
HiRE will provide meaningful
opportunities for the individual to search
for work, complete a resume, etc. at the
same time as filing a claim
This is a true definition of seamless
customer service as HiRE provides the
functionality for the claimant to become
a job seeker immediately.
We are taking what we used to see as
two customers and uniting them into
one….the “JobSeekerClaimant”
What’s in it for the JobSeekerClaimant?
Each JobSeekerClaimant will have his own web portal
into HiRE where he can transact all business:
–
–
–
–
–
–
–
–
–
File an Initial UI Claim
File a Weekly UI Continued Claim
Perform Job Search
Complete a Resume
Register for Work
File an Appeal
Get forms and information
Utilize the Virtual One Stop services
Much More
What’s in it for all Louisianans?
Our state will become a
better place to do business
Reduced Unemployment
Rates
Increased Workforce
Capacity
Reduced Duration of UI
Claims
Stronger Trust Fund
Accuracy and Timeliness
Other LWC Services
Other LWC Services (cont.)
Contact Information
Stephen C. Harris
Employer Outreach Liaison
Office of UI Administration
Louisiana Workforce Commission
(O) 225-342-1007
(F) 225-342-5965
(E) [email protected]