arkansas unemployment hearings – what an employer needs to

TALX Confidential and Proprietary

Arkansas Unemployment Hearings –What an Employer Needs To Know

June 29, 2010

TALX Confidential and Proprietary2

SpeakersSteve W. Carter Doug Johnson

Sr. Manager – Government Relations –Tax

TALX

(314)[email protected]

Lori RobertsSr. Manager - Government Relations

TALX

(614) 658-3102

[email protected]

Director, Appellate Services

TALX

(402) 344-4990 Ext. [email protected]


AgendaI. National Update

II. Unemployment Claims Process

III. Hearings Process

IV. Question and Answer Session

4TALX Confidential and Proprietary

National Update


Arkansas October 2008 through September 2009

Total Unemployment Claims Filed 347,401

Claims Uncontested 268,251 77% of claims are uncontested

Determinations Issued 79,150 23% of claims are initially contested

Total Claims appealed to Appeals Tribunal 13,916 4% of claims are appealed to Appeals Tribunal

By Claimants 10,796

Successful Reversals 2,252 21% of Claimant's appeals are reversed

By Employers 3,120

Successful Reversals 1,487 48% of Employer's appeals are reversed

Total Claims appealed to Board of Review 1,313 0.3% of claims are appealed to Board of Review

By Claimants 1,182

Successful Reversals 187 16% of claimants appeals are reversed

By Employers 131

Successful Reversals 41 31% of employer's appeals are reversed

Total Appeals favorable to Employers 9,885 71% of claims to AT/BR are resolved in favor of Employers

Total Appeals favorable to Claimants 4,031 29% of claims to AT/BR are resolved in favor of Claimants


National Employer and Employee Appeals

0

200,000

400,000

600,000

800,000

1,000,000

1,200,000

1,400,000

1,600,000

1,800,000

2007 2008 2009

Number of Employee Appeals Number of Employer Appeals

836,954 936,5301,267,573

1,161,5251,276,994

1,705,177

324,571340,464

437,604

Source: U.S. Department of Labor


State Procedure In-Person or Telephone

MAOregon

Washington

Montana

WyomingIdaho

Nevada

California

Arizona SC

NC

UtahColorado

New Mexico

Texas

Oklahoma

Kansas

Nebraska

Missouri

Arkansas

Louisiana

Mis

siss

ippi

Ala

bam

a

Tennessee

Kentucky

North Dakota

South Dakota

Min

neso

ta

Wisconsin

Indi

ana

Florida

VirginiaWV

NewYork

Maine

OhioIllinois

MI

Georgia

MD

DCDE

Iowa PANJ CT RI

VTNH

Hawaii

Alaska

Telephone (40 States, Including VI)

In Person (13 States, Including PR)


State ProcedureState-Licensed Attorney Requirement

MAOregon

Washington

Montana

WyomingIdaho

Nevada

California

Arizona SC

NC

UtahColorado

New Mexico

Texas

Oklahoma

Kansas

Nebraska

Missouri

Arkansas

Louisiana

Mis

siss

ippi

Ala

bam

a

North Dakota

South Dakota

Min

neso

ta

Wisconsin

Indi

ana

Florida

VirginiaWV

NewYork

Maine

OhioIllinois

MI

Georgia

MD

DCDE

Iowa PANJ CT RI

VTNH

Hawaii

Alaska

Tennessee

Kentucky

Attorney Only (5 States)


Unemployment Insurance: The Basics


Claim Basics - Base Period

1Q

2009

2Q

2009

3Q

2009

4Q

2009

1Q

2010

2Q

2010

Claimant’s weekly benefit amount (WBA) determined by total earnings in base period

Base Period determines which employers are chargeable proportionate to wages paid


Separation Claim Response

Hearing Appeal Determination

Decision Appeal Board of Review

Unemployment Claim Process


Separation Claim

Unemployment Claim Process

Ideal place to end process!• Complete claim responses save time and money• Reduce follow-up requests• Claim Adjudicator can make fully informed decision• Avoid unnecessary appeals• Improve win % substantially

Response


Lack of Work• Completed Assignments

• Plant closing

• Position eliminated

Voluntary Quit• “I quit”

• No show/No Call for three or more days

Discharge• Misconduct

• Attendance

• Violation of Policy

Types of Separations


Voluntary Quit

The burden of proof is the responsibility of the former employee to show there was good cause to quit attributable to the employer.

Good Cause

A change in the condition of employment or compelling reasons.

Continued employment must be available.

Forced resignation = DISCHARGE

ALWAYS ask for a signed letter of resignation


Job Separation – Voluntary Quit• Without good cause connected with the work

• The Burden of proof is on the claimant to show:

• Work-connected

• Necessitous, compelling reason

• Steps taken to preserve employment before quitting

• No alternative available• No disqualification if:

• Personal emergency• Contrary to good conscience to disqualify

• Pregnancy, illness, injury or disability of family member• Spouse, child, parent, sibling, grandparent, grandchild

• Domestic violence• Continued employment jeopardizes employee or family member

• Transfer of spouse • Impractical to commute

Example: Quit because of sexual harassment after filing complaint and harassment continued


The burden of proof is the responsibility of the employer to prove that the employee was discharged for misconduct.

Misconduct

A deliberate and willful disregard of employer’s interest or repeated violations of a known company policy

Discharge


Job Separation – Discharge• Misconduct in connection with the work

• The burden of proof is on the employer to show willful, deliberate, intentional disregard of employer’s interest.

• Policy or Procedure

• Claimant’s knowledge

• Violation

• Prior Relevant Warnings

• Attendance

•Absences in Prior 12 month period

•Reasons for Absence

• Unless employer has proof on intent to harm employer’s interest no disqualification for:

•Poor Performance

•Negligence

• Enhanced disqualification for:

•Dishonesty

•Drinking on the Job

•Under influence intoxications, including controlled substances

•Willful violation of safety Rules


Job Separation – Constructive DischargeIf employer allows an employee to voluntarily resign in lieu of being discharged

Not considered a voluntary quitConsidered a discharge– Employer has burden of proof – Just as though employee had actually been discharged


Lack of Work

Not DisqualifyingIntent of Unemployment

Job EliminatedNo positions available

Reduced hoursFull-time to Part-time

Job Offers and Refusals


An Appeal is Filed: Where to Start?

• Gather documents

• Identify witnesses

• Check Availability


Preparing for & Attending the Hearing


Hearing Notice: What Now?

Read instructions carefully

Put it on your calendar

Review employee documentation

Review claimant’s statement

Identify & prepare first-hand witness(es)


Sample Hearing Notice


Hearing Notice Received: What Now?Identifying witnesses to separation event

“Hearsay” is not evidenceIf witness did not hear it, see it, touch it, taste it or smell it, the witnesses testimony will not mean anythingWhat the supervisor told you about the claimant is hearsayThe supervisor must testify

Documents kept in the normal course of businessAre not hearsayCan be used as evidenceIntroduced through a witness who maintains custody of the documentsCaveat: Even if the separation event has been documented, have live witness testimony about the separation event if at all possible


Preparing Witness – Voluntary Leave CaseOral or written resignation?Notice given?Reason given?Other options available?Worked through notice period?Paid through notice period?Continued work available?


Preparing Witness – Discharge Case

Who witnessed the misconduct?Who discharged claimant?On what date?Reason given?Final incident?Knowledge of policy/procedure?Prior warning?


ALJ/Hearing Officer’s RoleConduct fair, impartial hearingControl the hearingElicit testimony from both partiesRule on admissibility and objectionsListen to relevant factsIssue decision containing findings of fact and rulings of lawOften Hearing Officer will ask all the questions of both claimant and employerMark off parts of your outline covered by Hearing OfficerWhen its your turn, fill in areas on outline that Hearing Officer has not already covered


ALJ/Hearing Officer’s ExpectationsArrive or be ready for the call on timeBe prepared with basic informationBring witness(es) with first-hand knowledgeBring pertinent documentsBe polite and respectful


Employer’s Rights

To have notice of issues to be discussedTo have witnesses testifyTo present documentary evidenceTo confront and question the opposing sideTo be represented by counsel


At the Hearing

• Always recorded

• Always under oath

• Employer begins in discharge cases

• Employee begins in voluntary quit cases

• Address the facts

• Only the Hearing Official asks the questions

• Only respond when asked

• Remain unemotional


After The HearingDecision usually within two weeks.

Right to further appeal (for both parties):

Written argument to decisionNo new evidence taken

Legal Counsel not required

Final recourse – Court of Appeals or other state venueLegal Counsel Required


SummaryBe on timeBe prepared and organizedProvide copies of documents as requiredWatch your demeanorRespond, rebut claimant’s misstatementsHave short summary, closing statement prepared


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Questions and Answers

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Please contact:

Dawn SteinbrueggeGovernment Relations

Tax Management [email protected]

(314) 684-2517

For More Information:

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