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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]