garcia - unemployment compensation: preliminary issues & claims defense
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Unemployment Compensation:Preliminary Issues & Claims Defense
PRESENTED BY:
Ignacio J. Garcia, EsquireOgletree, Deakins, Nash,Smoak & Stewart, P.C.100 North Tampa StreetSuite 3600Tampa, FL 33602Phone: 813.289.1247Fax: [email protected]
PRESENTED BY:
Ignacio J. Garcia, EsquireOgletree, Deakins, Nash,Smoak & Stewart, P.C.100 North Tampa StreetSuite 3600Tampa, FL 33602Phone: 813.289.1247Fax: [email protected]
How to address employees opting forunemployment compensation:
● Independent contractors
● Minimum wage position
● Consistent fighting
Preliminary Issues
Stimulus effects:
Extended benefits
$418 million from 2009 American Recovery andReinvestment Act
Begins on February 22, 2009
Qualify
- Exhausted unemployment on February 22, 2009
- Retroactive
- Ends January 2, 2010
- Up to 20 weeks
Preliminary Issues
When to Contest an Unemployment Claim– General Principles
WHY was the employee separated from employment
WHAT documents do you have to substantiate theseparation
WHO can testify about the separation reasons
HOW likely is the former employee to bring some otheraction against the employer
Claimant’s Eligibility
Financial Eligibility
Able for Work
Available for Work
Separation Issues: Layoff/RIFs
Lack of Work
Employee’s Refusal of Suitable Work
Separation Issues: Voluntary Quit
Basic Premise
Burden of Proof – Claimant
Voluntariness
Good Cause
Voluntary Leaving or Discharge?
Voluntary or Forced Resignation?
Revoking a Resignation
Job Abandonment
Domestic Circumstances
Conditions of Employment
Child Care
Health Reasons/Disability
Other Employment
Relations with Co-Employees
Transportation
Spouse Military Transfer
Separation Issues: Voluntary Quit
Separation Issues: Willful Misconductand Poor Performance
Basic Premise
“Misconduct” is more than ordinary negligence
Intentional or controllable acts or failures to take action,which show a deliberate disregard of employer’s interest
“Misconduct” is not the same as “poor performance”
Poor performance usually not a disqualification unless itconstitutes violation of a company policy that theemployee was aware of
Willful misconduct may be found in thesecircumstances:
Disregard of the employer’s interest
Deliberate violation of the employer’s rules
Disregard of standards of behavior
Some action greater than “ordinary” negligence
Separation Issues: Willful Misconductand Poor Performance
Can You Prove Willful Misconduct?
Consider what rule, standard of conduct or employerinterest is at issue
Consider the employee’s actions, intent and history
Consider how other employees engaged in similarconduct have been treated
Consider the reasonableness of the employee’s action inlight of “all the circumstances”
Other Requirements for Proving WillfulMisconduct
Conduct was connected with work
Conduct was material to employment
Burden of proof is on employer
Willful Misconduct – Employer’s Burdenof Proof
The employee intentionally engaged in conduct
The conduct was detrimental to employer’s interest
The conduct was material to the work
The conduct violated a standard which was uniformlyand consistently applied by the employer
The standard violated was reasonable
Proving Willful Misconduct – OtherConsiderations
Did the conduct result in immediate dismissal?
Did the termination result from an accumulation ofwarnings?
Is there a grievance procedure in place?
Willful Misconduct – Specific Issues
Absenteeism and Tardiness
Attitude
Carelessness
Working Conditions
Dishonesty or Falsification
Licensure Issues
Workplace Violence/Fighting
General Incompetence
Insubordination
Use of Intoxicants
Language
Medical Leaves of Absence
Refusal to Work Overtime
Willful Misconduct – Specific Issues
Willful Misconduct – Rules Violations
The employer generally must prove:
The existence of the rule
The claimant was aware or should have been aware of therule, and that her actions would violate it
The rule is reasonable
The rule has been violated
The rule has been uniformly enforced
The claimant must justify violation of rule byproving good cause
The Unemployment Hearing –General Rules
Subpoenas
Conduct of the hearing
Rules of evidence
Telephone hearings
Employer’s Steps Before the Hearing
Read the notice thoroughly
Make sure of the phone number and the start time
Review the file
The hearing may not start on time
If a key witness can’t attend, request apostponement
Subpoena necessary witnesses
Review the case with your witnesses beforehand
Provide copies of any documents you want to use
Employer’s Steps Before the Hearing
At the Hearing
Listen to and follow the instructions given by theHearing Officer
Speak only when called upon unless you have a legalobjection
Present first-hand testimony only
Be respectful to the Hearing Officer and the claimant
Offer stipulations
Avoid irrelevant or cumulative testimony
Do not ask your own witness leading questions (ok forclaimant’s witnesses)
Make sure your witnesses and evidence are ready
Don’t argue with the claimant; just present testimony,ask questions
At the Hearing
Don’t get overly concerned with the burden of proof
Make your company the “more attractive” party
Have witnesses with first-hand knowledge
Have written documentation
Show what you did to try to preserve the employment
At the Hearing
Make sure proper issues are heard, and preserved forappeal
Beware of collateral concerns
Credibility: the substance of a response and how made
Make a closing argument connected to the hearing facts
Remember the intent of the law
At the Hearing
Limit cross examination to that needed
It’s ok to say “no questions”
Don’t offer cumulative/repetitive testimony(rebuttal ok)
Don’t argue with claimant or her counsel; directcomments to the Hearing Officer
Don’t argue with the Hearing Officer: accept rulingsmade and move on
At the Hearing
If you want to appeal, follow the instructionsprovided and do so promptly – 20 days
After the Hearing
Get legal help to file an appeal
If employee has or is expected to assert additionalclaims against the employer, ask unemploymenttribunal to preserve the recorded testimony
After the Hearing
Determination/fact findings may be used, in somestates, against the employee in subsequent litigation
Sworn testimony during unemployment proceedinggenerally allowed for impeachment in all states
After the Hearing
Important Points for the Employer’s Case
Inability to perform to the employer’s satisfaction orexpectations is not willful misconduct
The final incident in a discharge is pivotal
Know when the final incident occurred and whathappened
Have a written policy for infractions leading todiscipline; employee should sign acknowledgment ofreceipt
Follow the policy and administer it uniformly
Have employees acknowledge receipt of updatedhandbook
Provide appropriate warnings: “Your job is in jeopardy”
Important Points for the Employer’s Case
Document infractions at every step of discipline withsigned employee acknowledgment
Discharge promptly after the final infraction occurs
For voluntary resignations, address employee’s concerns
Important Points for the Employer’s Case
Reasons Employers Lose UnemploymentHearings
Opposing legitimate claims
Not timely responding to notices from the UCService Center
Assuming benefits will be denied just because of adischarge
Not attending hearing
Not being prepared for hearing
Not knowing what the required showing will be
Not understanding that the burden of proof is on theemployer
Getting bogged down in immaterial details
Failing to contradict claimant’s theory of the separation
Reasons Employers Lose UnemploymentHearings
Failing to anticipate issues which may come up at thehearing
Failing to have corroborating documentary evidence
Focusing too much on “Right” and “Wrong,” instead of“Proven” and “Not Proven”
Failing to show what they did to preserve theemployment
Reasons Employers Lose UnemploymentHearings
Failing to show why other employees engaged insimilar conduct were treated differently
Failing to recognize that the final occurrence is themost important one
Failing to present first-hand testimony
Failing to have legal representation when theemployee does, or failing to have skilledrepresentation
Reasons Employers Lose UnemploymentHearings
Unemployment Compensation:Preliminary Issues & Claims Defense
PRESENTED BY:
Ignacio J. Garcia, EsquireOgletree, Deakins, Nash,Smoak & Stewart, P.C.100 North Tampa StreetSuite 3600Tampa, FL 33602Phone: 813.289.1247Fax: [email protected]
PRESENTED BY:
Ignacio J. Garcia, EsquireOgletree, Deakins, Nash,Smoak & Stewart, P.C.100 North Tampa StreetSuite 3600Tampa, FL 33602Phone: 813.289.1247Fax: [email protected]