Transcript Workforce Development in Indiana How to WIN your unemployment insurance hearing.

Indiana Department of Workforce Development
Workforce Development in
Indiana
How to WIN your unemployment
insurance hearing.
Indiana Department of Workforce Development
Liberal Construction of Statute
• “We start with the proposition the
Employment Security Act should be
liberally construed in favor of employees
because it is social legislation meriting
such construction in order to promote its
underlying humanitarian purposes.”
Bowen v. RB, 362 N.E.2d 1178 (Ind. Ct.
App. 1977).
Indiana Department of Workforce Development
Liberal Construction
• What does that mean?????
– Ties go to the claimant!
– The deck is stacked against you!
BUT THERE’S STILL HOPE!
Indiana Department of Workforce Development
DISCHARGE FOR CAUSE
•
(d) "Discharge for just cause" as used in this section is defined to include
but not be limited to:
(1) separation initiated by an employer for falsification of an
employment application to obtain employment through subterfuge;
(2) knowing violation of a reasonable and uniformly enforced rule of an
employer;
(3) unsatisfactory attendance, if the individual cannot show good cause
for absences or tardiness;
(4) damaging the employer's property through willful negligence;
(5) refusing to obey instructions;
(6) reporting to work under the influence of alcohol or drugs or
consuming alcohol or drugs on employer's premises during working hours;
(7) conduct endangering safety of self or coworkers; or
(8) incarceration in jail following conviction of a misdemeanor or felony
by a court of competent jurisdiction or for any breach of duty in connection
with work which is reasonably owed an employer by an employee.
Indiana Department of Workforce Development
DISCHARGE FOR CAUSE
• You CAN fire employees for violating your
policies, but you must show:
– There was a policy;
– The employee violated the policy;
– The employee knew about the policy;
– The policy was reasonable; AND
– The policy was uniformly enforced.
Indiana Department of Workforce Development
STEP 1: Start your business
• Your business will be covered if:
– you employ 1 or more employees for 20
different weeks in a year;
- OR – you pay over $1500 in wages.
Indiana Department of Workforce Development
STEP 2: IMPLEMENT POLICIES
• GET A HAND BOOK!
• HAVE IT REVIEWED BY A
PROFESSIONAL!
• FOLLOW IT!
Indiana Department of Workforce Development
STEP 3: HIRE EMPLOYEES
• INDIANACAREERCONNECT.COM
For more information, contact your local WorkOne
office.
www.workoneworks.com
Indiana Department of Workforce Development
STEP 4: EXPLAIN YOUR
POLICIES
• TRAIN employees on your policies
– Document the training
– Keep it in the employee’s file
– Get the employee’s signature!
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DO NOT terminate your employee due to
lack of work (layoff).
– Exceptions:
• Teachers
• Seasonal employees.
• DO NOT violate any policy you’ve issued.
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENT the reasons for the
termination.
– Document any progressive discipline,
INCLUDING verbal warnings.
– Document any investigation that occurred
such as witness statements, police reports,
and any other evidence of the wrong doing.
– Document any warning to employee that his
job is in jeopardy.
– GET A SIGNATURE!
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• YOU CAN’T FIRE ME…
– If an employee quits, he is not eligible
UNLESS he can show he had just cause in
connection with the work for quitting.
• Problem: Claimants often deny they quit.
– Claimant must express an intent to quit.
– If the judge finds claimant was terminated,
you have no evidence of just cause.
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENTING QUITS Misunderstandings:
– The no show
– The altercation
• SOLUTION: Send a letter documenting
what has occurred and invite them to
contact you (at a specific number) if they
disagree.
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENTING QUITS
• Potentially Eligible
– The medical condition
• Claimant is eligible if he can show that
employment ended 1) involuntarily 2) as a result of
3) a medically substantiated 4) physical disability
and 5) the employee made efforts to maintain the
employment relationship.
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENTING QUITS - Potentially
Eligible
– The Harassee
• Show that there was a reporting structure and he
didn’t follow it.
• Show that alleged harassment was reasonable
discipline, not harassment
– What was said?
– Did you violate the rule?
– Was anyone else treated differently?
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENTING QUITS - Potentially
eligible
– An employee may be able to show just cause
for quitting if an employer unilaterally changes
the terms and conditions of employment.
• Show that there was no change in terms (job
description, employment agreement); or
• Show that the employee agreed to the changes
(email chain, letter documenting meeting, etc.)
Indiana Department of Workforce Development
STEP 5: FIRE YOUR EMPLOYEE
• DOCUMENTING QUITS - Eligible
reasons:
– Left for previously secured work;
– Left a second job;
– Accepted recall;
– Left to join the military;
– Left to follow spouse (not charged);
– Domestic violence (not charged)
Indiana Department of Workforce Development
DEFEND THE CLAIM
• Levels of review:
Adjudication
Appeals
Review Board
Court of Appeals
Indiana Department of Workforce Development
Adjudication
• Respond ASAP with a brief explanation, contact
information, and relevant documents.
• Document Checklist:
– Policy(s)
– Acknowledgement of receipt / training
– Evidence of violation (written discipline, warnings,
investigation, police reports, termination letters etc.)
– Justification for the rule (optional)
Indiana Department of Workforce Development
Appeals
• IMMEDIATELY:
– Request a copy of the adjudication file
– Fax your participation form to DWD
– Send your evidence to the ALJ and opposing
counsel
Indiana Department of Workforce Development
Appeals
• Prior to the appeal
– Review adjudication file – what is claimant
alleging? Did he make any relevant
admissions?
– Gather first hand witnesses
• Who witnessed the event
• Who investigated the event
• HR generally is not a first hand witness
Indiana Department of Workforce Development
Appeals
• PRIOR TO APPEAL:
– Prepare your witnesses
•
•
•
•
Explain the process
Explain their role
Review the documents with them
Walk through their story with them – are there any
details they need to research?
• Impress upon them the importance of telling the
truth
Indiana Department of Workforce Development
Telephone Hearings
• Appellate Division now schedules
approximately 95% of cases for telephone
hearings
– Eliminates travel time for parties
– No parking or travel issues
– No loss of productivity for the day of hearing
– More efficient for ALJ’s who can take cases
from anywhere in the state.
Indiana Department of Workforce Development
Telephone Hearings:
Getting the call
• Return participation form with contact number &
name.
– Provide no less than 1 day in advance of the hearing so
that there is adequate time for form to reach ALJ.
– Faxed forms are acceptable; mail and/or personal
delivery is acceptable as well.
• Consider providing alternate number or
instructions in case of busy signal.
• Witnesses and other representatives should be
available.
Indiana Department of Workforce Development
Telephone Hearings:
Getting the call
• Let people who may get the call know
you are expecting it.
• Make sure the number provided
accepts incoming calls.
Indiana Department of Workforce Development
Appeals
• During the appeal
– Order of testimony depends on issue
• Discharge – Employer goes first
• Quit – Claimant goes first
– Direct testimony –telling your story
– Cross examination – questioning the claimant
Indiana Department of Workforce Development
Appeal
• Direct testimony: The perfect pitch
– Claimant was terminated because he violated the
policy against _____, attached as exhibit A.
– Claimant signed exhibit B acknowledging he had
received a copy of this policy on ___.
– Claimant had previously received a written warning
for violating this policy on ___, attached as exhibit C.
– Present evidence of the violation.
– Present testimony on reasonableness of the policy.
– Be prepared to show that you treat all violations
equally.
Indiana Department of Workforce Development
Appeal
• Cross Examination
– Use adjudication file to prepare for hearing:
• What will claimant’s story be?
• What questions or documents?
– Use questions to introduce facts claimant left
out or show that claimant’s story is
implausible.
– Try to ask questions that have short answers
to which you know the answer.
Indiana Department of Workforce Development
Strategic Considerations:
Hearing Procedure
• Know basic information about claimant.
– Date of hire, pay, job position, separation date, reason(s)
for separation
• Party with the burden of proof goes first
– Employer: Termination and Deductible Income
– Claimant: Quit and Able & Available
• ALJ generally asks questions to develop the record;
however, this is your case, so always feel free to add
additional relevant information.
• Case starts with direct examination (this is were all
of your relevant evidence and testimony should be).
Indiana Department of Workforce Development
Drug Policies
To admit the results of a drug test into evidence, an
employer must produce, at a minimum, the
following documents:
1. A document signed by the tested employee acknowledging that his
specimen has been taken and sealed;
2. A document signed by the witness to the taking of the specimen,
the sealing of the specimen, and the forwarding of the specimen in
the chain of custody to the laboratory;
3. A certificate executed by the laboratory certifying that the
specimen was received intact within the chain of custody and that
the chain of custody was maintained inside the laboratory; and
4. Certification by the laboratory of the test results together with
documentation of the tests taken and the cutoff value level for each
test. The evidence must establish that a positive test was
confirmed using gas chromatography/mass spectrometry
techniques.
Indiana Department of Workforce Development
Any breach of duty in connection with work
reasonably owed an employer by an employee
• Employees have a duty or obligation for
certain things in connection with their
work.
– Duty to obey lawful and clearly given instructions
– Duty of loyalty (can’t compete with employer’s
interests)
– Also have duties for financial accountability
(employer’s money); work performance, etc.
Indiana Department of Workforce Development
Ethical Considerations in
Unemployment Law
• Ex Parte Communications
– While an appeal is pending, ALJ may not:
• directly or indirectly communicate with
• a party to an appeal or any person with an interest in the
outcome of the appeal
• regarding any substantive issue
• Confidentiality
– Information obtained from any person in the administration of
the UI laws is confidential and may not be disclosed except in
the obedience of a court order
– Pursuant to US DOL guidance, subpoena is not a court order
– Exceptions to disclosure include disclosure to the subject of
the information and non-identifying information