MUST-DO STRATEGIES TO WIN AN UNEMPLOYMENT COMPENSATION CLAIM By Anton J Moch

Transcription

1 MUST-DO STRATEGIES TO WIN AN UNEMPLOYMENT COMPENSATION CLAIM By Anton J Moch 1. Apply The Law Of Unemployment Compensation A. Presumptions: (1) Purpose. Unemployment compensation is intended for individuals who are unemployed through no fault of their own. (2) Quit. An employee is presumed to be disqualified from benefits if he or she quit employment. (a) A Quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee s. (i) (ii) Withdrawing Quit has no effect if employer disagrees. An employee who has been notified that he or she will be discharged in the future, but who chooses to end the employment while employment is still available, is considered to have quit the employment. (b) Exceptions: (i) Good reason to quit caused by the employer. A good reason to quit is a reason: (1) that is directly related to the employment and for which the employer is responsible; (2) that is adverse to the worker; and (3) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment. Good cause to quit is a reason that is real, not imaginary; substantial, not trifling; and reasonable, not whimsical. 2

2 Examples: Substantial adverse change in wages Sexual harassment If subjected to adverse working conditions by the employer, the applicant must complain to the employer and give the employer a reasonable opportunity to correct the adverse working conditions before that may be considered a good reason caused by the employer for quitting. A reason for quitting employment is not considered a good reason caused by the employer for quitting if the reason for quitting occurred because of the applicant s employment misconduct. A substantial adverse change in the wages, hours, or other terms or employment by the employer is considered a good reason caused by the employer for quitting unless the change occurred because of the applicant s employment misconduct. Decreases in wages of 19% and 25% have been deemed a good reason to quit; however, a fifteen percent decrease alone is not a good reason to quit. (ii) (iii) (iv) (v) Quit to accept other covered employment with better terms but did not work long enough to have sufficient earnings. Quit within 30 days of beginning employment because it was unsuitable. Quit to enter reemployment assistance training. The applicant quit because the employer notified the applicant that the applicant was going to be laid off due to lack of work within 30 calendar days. An applicant who quit employment within 30 calendar days of a notified date of layoff due to lack of work shall be disqualified from benefits through the end of the week that includes the scheduled date of layoff. 3

3 (vi) (vii) The applicant quit the employment because the applicant s serious illness or injury made it medically necessary that the applicant quit, provided that the applicant made reasonable efforts to remain in that employment in spite of the serious illness or injury, unless the illness is chemical dependency for which the applicant was previously diagnosed or treated. Domestic abuse of the applicant or the applicant s immediate family member necessitated the applicant to quit the employment. (viii) Quit because of loss of child care for a minor child. (ix) Quit to relocate to accompany a spouse whose job location change made commuting impractical. (3) Termination. An applicant who was discharged from employment by an employer shall generally receive benefits. (a) A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity. (i) (ii) (iii) A layoff due to lack of work shall be considered a discharge. A suspension from employment without pay of more than 30 calendar days shall be considered a discharge. An employee who gives notice of intention to quit and is not allowed by the employer to work the entire notice period shall be considered discharged from the employment as of the date the employer will no longer allow the employee to work. If the discharge occurs within 30 calendar days prior to the intended date of quitting, then, as of the intended day of quitting, the separation shall be considered a Quit from employment. (b) Exceptions: There are only two circumstances in which a terminated employee generally will not receive unemployment benefits: (i) Misconduct: 4

4 Misconduct is any intentional, negligent, or indifferent conduct, on the job or off the job that: (i) displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (ii) that displays clearly a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct. Conduct that was a direct result of the applicant s chemical dependency is not considered misconduct unless the applicant was previously diagnosed as chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency. A single incident that does not have a significant adverse impact on the employee does not constitute misconduct. Examples: Continued violation of employer s policy; Falsification of time card; Refusal to comply with reasonable request; Continued absenteeism and tardiness; Substantial lack of concern for employment; 5

5 Sexual harassment; and Certain driving offenses. (ii) Aggravated Misconduct: The commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act substantially interfered with the employment or had a significant adverse effect on the employment. If an applicant is convicted of a gross misdemeanor or felony for the same act for which the applicant was discharged, it is aggravated employment misconduct if the act substantially interfered with the employment or had a significant adverse effect on the employment. Typically an applicant is ineligible for unemployment for the duration of the applicant s unemployment. If the applicant was discharged from employment because of aggravated employment misconduct, wage credits from that employment are canceled. 2. Understand The Procedure For Responding To An Initial Claim A. Employers must be Notified. (1) When a former employee applies for unemployment compensation benefits, the employer is notified by a determination of benefit account. This notice indicates the applicant s weekly and maximum benefit amounts, wages used to establish the account, and the maximum potential charges to the employer s experience rating or reimbursing account. The applicant s most recent employer and all employers for which the employee worked during the six-month period prior to the effective date of the application for benefits as well as all base period employers will receive, by mail or electronic transmission, the prescribed notice. B. Always Respond. (1) Employers will have 10 calendar days after the Department of Employment and Economic Development (the Department ) has sent the notice to challenge an applicant s entitlement to benefits 6

6 and to raise any issue of disqualification or eligibility. Issues raised more than 10 calendar days after the Department has sent the notice are considered untimely. C. Always Stress the Law. (1) A huge volume of initial claims are made every week. If an employer lays out exactly why a claimant should be disqualified based on the general principles of unemployment compensation, its odds of winning are greatly improved. D. Employers may submit documents in support of their responses. E. Always inform the Department if the employee received disqualifying payments (e.g., severance pay, workers compensation, pension). 3. Prepare For The Hearing A. Make sure to dispute any ruling within 20 days from the date the determination was made to request a hearing. (1) This can be done either in writing or electronically. B. Always make sure to provide a written overview of the case and facts most favorable to your case. (1) This must be signed by the appealing party or by an authorized representative and must identify the order that is being appealed. C. The employer may request a hearing in person if the hearing is scheduled to be via teleconference. D. The employer is free to subpoena parties or documents in advance of the hearing. (1) This goes both ways an employee can subpoena documents from the employer as well. (2) A subpoena must be submitted in writing to or by calling the appeals office sufficiently in advance of the hearing to allow for service, but no later than 5 days prior to the hearing. Can be denied if the testimony or materials would be irrelevant, immaterial or repetitious. E. The employer may request discovery from the other party to receive information as well as the names of all witnesses the party intends to call and identification of any written document the party intends to introduce. 7

7 (1) The employer may demand by mail or telephone that the other party provide the following information within three working days: (a) (b) (c) The name of the party s attorney or representative; The names of all witnesses the party intends to call; and Identification of any written documents the party intends to introduce. The demanding party is allowed to inspect any identified document at a mutually agreed upon time and location, provided the demand to inspect is made at least 3 working days prior to the hearing. F. You do have the right to withdraw an appeal. 4. Know The Rules Of The Hearing A. Let the Unemployment Compensation judge set the tone. (1) The unemployment law judge runs the show. Sometimes the unemployment law judge will conduct the majority of the questioning. Sometimes the employer or its representative will be asked to do it. (2) The hearing is not meant to be adversarial. (3) All issues of facts are determined by preponderance of the evidence. (4) The judge will assist an unrepresented party with questioning. B. Know the law; know the rules. (1) The same law applies: If you have a story to tell that explains why benefits should be denied according to the law, the judge is more likely to be persuaded. C. The hearing is the only opportunity you will have to establish a factual record. D. Hearsay is allowed. (1) There are no statutory common law rules of evidence. The rules may be used as a guide. As such, hearsay evidence (events heard second-hand from another party) may be included and relied upon 8

8 if it is the type of evidence on which reasonably prudent persons are accustomed to rely on the conduct of those serious affairs. E. You have the right to cross-examine all witnesses and any evidence submitted. (1) Can also object to exhibits and testimony. (2) Can also offer rebuttal testimony. F. You can submit exhibits and have witnesses during a telephone hearing. G. Testimony during a hearing may not be used or considered for any purpose in any civil administrative or contractual proceeding except by a local, state or federal human rights agency with enforcement powers. (1) No findings of fact or decision issued by an unemployment law judge may be held conclusive or binding or used as evidence in any separate or subsequent action in any other form, regardless of whether the action involved the same related parties or involves the same facts (with limited exceptions). H. Just because the employee didn t respond or attend the hearing doesn t mean the employer should fail to submit a response and attend the hearing. (1) Even if a party fails to appear at the hearing, the unemployment law judge may issue a decision based on the evidence. I. Have a closing statement prepared in advance. (1) Judges are human and having a roadmap of what was presented and how the law should apply to the evidence will be beneficial. 5. Analyze The Benefits Of Appealing To The Minnesota Court Of Appeals A. Rather than file an appeal, you can request that the unemployment compensation law judge reconsider the prior finding. (1) In deciding a request for reconsideration, the unemployment law judge may not, except for purposes of determining whether to order an additional evidentiary hearing, consider any evidence that was not submitted at the original evidentiary hearing. B. Appeal with the Minnesota Court of Appeals. (1) Appeal is made by filing a proper writ of certiorari with the Court of Appeals, which must be filed and served upon all parties within 9

9 v2 30 days after the mailing of the unemployment law judge s decision. C. Review whether there are viable issues for appeal and good faith arguments to support reversal and/or remand. (1) In unemployment compensation proceedings, the Minnesota Court of Appeals must view the decision of the commissioner s representative in the light most favorable to the factual decision and should not disturb the decision if there is evidence in the record reasonably tending to sustain the factual findings. (2) The Minnesota Court of Appeals, however, is not bound by the conclusions of law of the commissioner s representative, and the Court is free to exercise its independent judgment on questions of law. D. Review the decision of unemployment law judge to ensure that the findings of fact are explained. (1) If an unemployment law judge fails to make findings that address the credibility of a party or witness who testifies at an unemployment benefits evidentiary hearing, the Court will remand for a new hearing. E. If the decision was in the employer s favor, determine whether it is necessary to respond to an appeal. (1) If an employee appeals a decision to the Minnesota Court of Appeals, the Minnesota Department of Unemployment Compensation is required to defend its decision and will argue the case in favor of the employer. 10