How To Win an Unemployment Insurance Appeal by yaohongm

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									     The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm




    How To Win an Unemployment
         Insurance Appeal

                 Dustin Stohler
      The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


            Why are we here?
  To put money back in your pockets.

  Employers pay for improper charges caused by:
     • Claimant fraud and mistake;

     • Government error;

     • Lack of education for employers.
        The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


           What should you do?
  • Audit your account to remove improper charges and identify mistakes you are
  making;

  • Take steps to prevent part time, intermittent, and seasonal employees from
  drawing;

  • Track your claims to ensure that improper charges don’t appear on your
  account;

  • Educate yourself and your managers on the practices you should implement
  now to win claims by terminated employees.

  •Question unfair charges.
             The Law Office of
  Dustin Stohler
  The Unemployment Insurance Law Firm


                                 Taxes
• How are tax rates calculated?

• Which benefits are charged to my account?

      Benefits charged proportionately to base period employers.

      An employer could be in a base period for up to 2.5 years.

      Should not be charged for disqualifying events.
        The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


                          Taxes
How much will my taxes change?

       - Highest rate: $390 to $969 per employee
       - Lowest rate: $82.50 to $71.25 per employee

If you aren’t at the highest or lowest rate, your taxes will go up
in 2011 and 2012, but will approximately equal the benefits
charged to your account over time.
      The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


                      Benefits

  •Eligible claimants can currently qualify to receive:

     •Up to 26 weeks of Regular UI

     •Up to 73 weeks of Federally funded UI

  •Eligible Hoosiers can receive up to 99 weeks of benefits
        The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


                       Eligibility
 Claimants are eligible for benefits if they:

       are unemployed through “no fault of their own”;

       are able and available for full-time work; and

       are actively seeking full-time work.
          The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                      Unemployed
Claimants are unemployed if:

      they receive no wages or benefits for the week; or

   theemployee’s regular hours have been reduced due to a lack of
   work.
        The Law Office of
Dustin Stohler
 The Unemployment Insurance Law Firm


                   Unemployed
A claimant is NOT unemployed:

    if he reduce his hours (sick, vacation, etc);
    when he is working his regular schedule;
    when agreed to be unemployed during the period;
    during a seasonal employer’s off season;
    between terms.
        The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                   Unemployed

Track the charges to your account.

Expect pushback from the department.

Don’t accept answers that seem unfair.
       The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


           Winning your claim

You don’t have to pay for benefits if the Claimant:
      - voluntarily quit; or
      - was discharged for cause, BUT

YOU have to prove the separation was voluntary or for
cause.
          The Law Office of
 Dustin Stohler
  The Unemployment Insurance Law Firm


              Discharge for Cause
     (1) resume fraud;
     (2) rule violation;
     (3) poor attendance;
     (4) willfully damaging the employer's property;
     (5) insubordination;
     (6) reporting to work under the influence of alcohol or drugs or consuming
alcohol or drugs on employer's premises during working hours;
     (7) endangering safety of self or coworkers; or
     (8) incarceration in jail following conviction or for any breach of duty in
connection with work.
      The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


              Rule Violation
•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.
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


              Rule Violation
STEP 1: HAVE A POLICY
•Get a hand book.

•Have it reviewed by a professional.

•Follow it.
      The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


              Rule Violation
•TRAIN employees on your policies
  •Document the training
  •Keep it in the employee’s file
  •Get the employee’s signature!


Don’t violate any policy you have issued.
      The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


               Rule Violation
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!
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


              Voluntary Quits
•If an employee quits, he is ineligible UNLESS he
shows he had just cause 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.
      The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


             Voluntary Quits
•DOCUMENTING QUITS - Misunderstandings:
  –The no show
  –The altercation

•SOLUTION: Document what occurred and ask
them to contact you if they disagree.
      The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


             Voluntary Quits
 The Harassee

    • Show he didn’t follow the reporting structure.
    • Show that alleged harassment was reasonable
    discipline, not harassment
       – What was said?
       – Did you violate the rule?
       – Was anyone else treated differently?
      The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


             Voluntary Quits
 Unilateral Changes

    • 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.)
     The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


            Voluntary Quits
 Non-disqualifying reasons:
 – Left for other work
 – Left to follow spouse (not charged)
 – Domestic violence (not charged)
      The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


         Defending the Claim
•Levels of review:
  Adjudication
          Appeals
               Review Board
                    Court of Appeals
        The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


           Defending the Claim
•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)
      The Law Office of
Dustin Stohler
 The Unemployment Insurance Law Firm


                    Appeal
•IMMEDIATELY:
  – Request a copy of the adjudication file.
  – Fax your participation form to DWD.
  – Send your evidence to the ALJ and claimant.
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                       Appeal
•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
       The Law Office of
Dustin Stohler
 The Unemployment Insurance Law Firm


                       Appeal
•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
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


          Telephone Hearing
Get the call
     - Return participation form quickly.
     - Provide alternative numbers.

Have evidence ready
    - Send documents as soon as possible.
    - Explain any delays.
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


           During the Hearing
•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.
        The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


            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.
• Ask questions that have short answers.
•NEVER ask why.
         The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                    Performance
Must show that employee chose not to perform.

Consider:
      - Is it actually a rule violation or insubordination?
      - Can you show that it is the claimant’s choices?
               - Recommend possible improvements
               - Discipline for failure to implement
               - Keep proposals as objective as possible
         The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                Insubordination
Must show that employee intended to refuse to carry out a
reasonable order.
      - Failure to do the job is not enough;
      - Ambiguities will be construed against you.

What to do?
      - Clarify that you are giving the employee a direct order;
      - Clarify that refusal could result in termination;
      - Confirm that the employee is refusing;
      - Confirm the employee’s reason for the refusal.
          The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


           Profanity / Disrespect
Not always just cause for termination.
       - Is it insubordination?
       - Is it a policy violation?

If not, courts will consider factors such as:
         - was it a single incident or a barrage of profanity;
         - severity of the language;
         - the cause of the outburst;
         - was it directed at an individual; and
         - who witnessed it.
       The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


          Drugs and Alcohol
Need to provide:

     - A signed admission;
     - A professional drug test (including chain of
       custody documents); or
     - Document refusal to submit to the test.
        The Law Office of
 Dustin Stohler
 The Unemployment Insurance Law Firm


                    Attendance

No Policy: Poor attendance may be just cause IF the
individual doesn’t have an excuse.

Policy: Termination pursuant to the policy is probably just
cause, even if the employee has an excuse, but the courts
haven’t ruled on recent legislative changes.
       The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


            Legislative Update
   - 50% Penalty

 - Gross misconduct

 - No fault attendance policies may be just cause

 - A tax increase to “fix” the trust fund

 - FUTA taxes - will increase by .3% until the rate hits 6.2%
 or the fund is solvent.
     The Law Office of
Dustin Stohler
The Unemployment Insurance Law Firm


               Questions?
                   Dustin Stohler
             dstohler@stohlerlaw.com
               www.stohlerlaw.com
                  (317) 937-7323

								
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