Hey Compliance Warriors!

Unemployment Compensation audits are about to be a top-level issue for HR and payroll professionals. Are you ready? Do you know what you need to do to get ready for challenges to UI charges and complaints? Read on…

Getting Unemployment

Generally, the requirements an employee must satisfy to receive unemployment benefits are:

• Employee must file a claim;
• Employee must be unemployed or have substantially reduced work hours through no fault of his or her own;
• Employee must be able to work and available for work;
• Employee must be actively seeking work.*
• Employee must have earned enough money during the base period (see below).
• Employee must meet the eligibility requirements each week benefits are claimed.

*During the pandemic, actively seeking work has been waived.

Many states have made special provisions during the COVID-19 pandemic. Here is a breakdown.

COVID-19: State Unemployment Guidance and Actions

Examples of misconduct that will usually render an employee ineligible for unemployment benefits

• Voluntary quitting without good cause.
• Termination for misconduct.
  • Mere inefficiency, unsatisfactory conduct, failure in good performance due to inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good-faith errors in judgment or discretion are not deemed “misconduct.”
  • An employee’s inability to perform essential job duties generally doesn’t meet the definition of misconduct.
  • An employee’s refusal to sign a disciplinary notice to acknowledge receipt of that notice is not deemed misconduct.
• Refusal to perform suitable work.
• Intentional violation of reasonable company rules. The employer must be able to prove the employee had knowledge of the company rules before he or she violated the rules. The company rules must also be lawful and reasonable.
• Poor attendance. The employee must have been able to attend work and repeatedly failed to do so. The absence must be unexcused and for a non-compelling reason (i.e., subpoenaed to court or taking care of an ill family member would not fall under misconduct).
• Substantial criminal activities.
• Irresistible compulsion to use intoxicants. There must be evidence of the employee’s use of intoxicating substances on the job.
• Inexcusable fighting with other employees.
•  Insubordination if the employer’s order was reasonable and the employee’s refusal to comply was willful and unjustified.
• Employee was a student employed on a temporary basis whose employment ended so that he or she could return to school.

Examples of conduct or terminations of employment that are not generally considered misconduct or sufficient to deny an employee unemployment benefits are:

• Layoffs
• Voluntary quitting for “good cause.” Good cause occurs when a substantial motivating factor causes the claimant to leave work. The factor need not relate to work. It must be a real, substantial and compelling reason that would cause a reasonable person who wants to remain employed to leave work under the same circumstances.
• Depending on the circumstances, leaving work for good cause might include.
• Going to school.
• Change in travel time or distance.
• Moving beyond reasonable commuting distance with a spouse or registered domestic partner. This does not include a significant other who is not a spouse or registered domestic partner.
• Being required to care for a seriously ill child.
• Leaving an employer who does not address serious harassment or safety issues.
• Choosing to be laid off in place of an employee with less seniority, if a collective bargaining agreement allows this practice.
• Protecting himself or herself or his or her family from domestic violence.
• The following examples do not generally constitute good cause:
• Increased child care costs.
• Looking for another job.
• Change in job duties or demotion.

If an employee resigns, the employer should request the employee to put the reasons for his or her resignation in writing in case the employee later files for unemployment insurance benefits.

Preparing to Dispute a Claim or Chargeback

The employer should treat the occasion as if it will be the only chance it ever receives to explain its side of the situation. In general, firsthand testimony from witnesses with direct, personal knowledge of the events leading to the claimant’s work separation takes precedence over all other forms of evidence. Documentary evidence may be entered as exhibits. When a hearing is by telephone, the employer must be careful to send copies of any exhibits to both the hearing officer and the claimant. Failure to send copies to the claimant may result in the hearing officer refusing the items as exhibits. The parties may offer direct testimony, conduct cross-examination, and make concluding statements. The hearing officer will issue, usually within one calendar week, a written decision either affirming, reversing, or modifying the determination that was appealed. If the ruling is not in the claimant’s favor, i.e., reverses a prior decision that allowed the claimant to receive benefits, the claimant may be found liable for an overpayment of benefits and may have to repay any benefits received that were not in accordance with the latest decision.

Making your Defense

Document, Document, Document.

One of the biggest issues employers will tackle during this pandemic is the refusal of employees to come back to work when recalled or just refuse to work in general. Why would they do this? There are several reasons.

• Fear of COVID-19
• Mental health issues that cause severe anxiety – PTSD, BiPolar Disorder, Major Depression, Social Anxiety, and many others.
• I can make more money on unemployment
• I believe my workplace to be a direct threat to my health and safety
• I have FFCRA covered circumstances
• and more.

This is a hard situation. You don’t want to lose anyone, but you must require people to work unless there is a covered reason not to work. In reality, you may have to lose and hopefully replace someone. However, the lawsuits and DOL actions are already beginning to pour in. So, establishing good faith and reasonable basis has never been more important. Let’s unpack this a bit.

Employees are allowed to refuse work under certain conditions. https://www.osha.gov/right-to-refuse.html

Your right to refuse to do a task is protected if all of the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
• You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and    **KEY**
• There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

• Ask your employer to correct the hazard, or to assign other work;
• Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
• Remain at the worksite until ordered to leave by your employer.

Once these steps have been followed, the EE cannot be terminated. There could also be ADA issues if the refusal relates to a covered disability. Each employee must be reviewed individually. Document your steps as you determine whether a disability exists – mental or physical – and then use the interactive process as applicable. 

https://askjan.org/disabilities/Mental-Health-Impairments.cfm

https://askjan.org/topics/interactive.cfm

Finally, you must consider that if the employee returns, there may be a question of FFCRA leave for school or daycare closures or other covered reasons. So, all of that will need to be unpacked and reviewed so you will not be found in violation of the FFCRA.

Outside of this, employees who refuse to return to work are possibly resigning or abandoning the job. This is why we recommend you issue an offer letter where the EE can decline employment. We have a sample on the COVID-19 page of our site.  https://helpdesksuites.com/coronavirus-covid-19-resource-center/

Consider each of these areas and show that you have considered them fully along with any other issue which may be in play.

Records Reviewed During an Audit

FAQs

WHY WAS I SELECTED FOR AUDIT?

HOW LONG WILL THIS AUDIT TAKE?

WHAT IF I CANNOT PROVIDE RECORDS ON THE SCHEDULED AUDIT DATE?

MUST I BE PRESENT AT THE TIME OF AUDIT?

WHAT PERIOD OF TIME WILL THE AUDIT COVER?

WHAT RECORDS WILL THE AUDITOR EXAMINE?

WHY IS THE AUDITOR EXAMINING RECORDS, FORMS, AND DOCUMENTS IN ADDITION TO PAYROLL RECORDS?

WHY ARE YOU AUDITING ME WHEN I CONSIDER ALL MY WORKERS TO BE INDEPENDENT CONTRACTORS?

CAN I REFUSE TO PROVIDE RECORDS TO THE AUDITOR?

WHEN WILL I KNOW THE AUDIT RESULTS?

WHAT IF I DON’T AGREE WITH THE AUDIT RESULTS?

CAN THE AUDITOR ANSWER QUESTIONS REGARDING THE DEPARTMENT OF LABOR & INDUSTRY?

WHAT IF I HAVE OTHER QUESTIONS REGARDING THE AUDIT?

DISCRIMINATION PROHIBITED

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