Facts About
Unemployment
Insurance Compensation
Tips for the Employer
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Iowa Unemployment Compensation Observations
From the desk of
MaryAnn Spicer
Management’s Representative
Iowa Employment Appeal Board
The view from this author’s desk is one that can provide some
helpful tips for the employer. This is my fourth year serving as
your representative. This author reviews evidence that can be
passed on to the employer that may help the employer better
document cases that appear before the Administrative Law Judge
or the Employment Appeal Board. Even though employers may
not have won all their cases, the evidence file has improved over
the years. Many employers have become more diligent in
following the guidelines as put forth by the State of Iowa. These
tips should serve as a handy reference tool, and this author
encourages all employers to read the Iowa Workforce
Development Unemployment Insurance Facts For Employers for
complete detailed information.
1. Employers should assure that they read the fine print on the
Appeal Notice (highlighted in red) which states to immediately
call (do not fax the information) when you receive this notice
to participate in a telephone hearing, which is scheduled for:
________________. The judge will not call you on the day of
the hearing if you have not called the Appeals Bureau in Des
Moines, Iowa, as instructed. Once you have contacted the
agency at the number provided on the notice you will be given a
control number. Please put this control number in a safe place. It
will be your record that you have complied with the instructions
just in case you do not receive a call. If you do not receive a call
within five minutes of the time, immediately call the number
listed on your form. Do not delay.
2. Employers should participate at the Fact Finding Level. Never
let a case be decided on the merits without your participation. If
you do, you take a chance that the case may be decided, by the
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claims deputy, giving more weight to the employee. Information
submitted for the fact-finding interview is not automatically part
of the record in the appeal hearing at the hearing before the
Administrative Law Judge (ALJ). This information must be
resubmitted if you wish for it to be part of the record. If you still
do not participate in the hearing because you did not call in,
called in late, or cannot be reached at the number you provided
when the judge calls for the hearing, the judge may decide the
case on the basis of other available evidence. This is true even if
workforce has called you during the Fact Finding phase. The
case starts over at the evidence stage and all information must be
supplied again even if they have it on file. Employers should
avoid using cell phones because all hearings are recorded and the
sound is not as good, you could experience dropped calls or
failure of the administrative law judge to get through to you in
time for the hearing.
3. Once you receive the notice about the hearing, you should
immediately send any documents you need to prove your case to
the Appeals Bureau at least three days or more prior to the
hearing. The employee must receive a copy of any evidence you
send forth as exhibits. You should keep a copy for your records
and make sure you have all records available for the hearing. The
most essential information is the date the employee was hired, the
date the employee was fired and the immediate supervisor or any
firsthand witness having evidence should be present. It is not a
good practice to have the HR or your Employer’s Representative
as the sole presenter. If this happens, you stand a chance of more
weight being given to the employee who will provide firsthand
evidence and a ruling in favor of the employee.
4. It is a good practice to have the witnesses you wish to testify
available. This witness is the one that took the action or one that
has first hand knowledge of the facts about the separation.
Assure your witness is well versed. Secondhand evidence or
hearsay does not carry the same weight as firsthand testimony,
particularly, if the employee refutes all the statements presented
by your representative.
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5. If you must subpoena a witness, you must send this information
to the administrative law judge well in advance to allow sufficient
time for the request to be processed.
6. A few employers hire an attorney if they do not wish to represent
themselves. If an attorney will function as your representative,
you should notify the Appeal Bureau with the necessary
information.
7. There are occasions where the employer’s witness calls in sick
the day of the hearing, administrative errors where the one
holding hearing is on vacation and no one is alerted prior to the
hearing and an administrator just plain forgot the hearing. If this
happens it may be too late to request a postponement. This is
where you become a Monday morning quarterback and must punt
or accept an unfavorable ruling. The administrative law judge
may only postpone a hearing for an emergency or other similar
good cause. The reasons listed above are not good cause.
Usually the administrative law judge will ask that a request for
postponement be sent at least three days to a week in advance to
allow for processing. If you feel you have good justification for
postponement you can always send in your request but be
prepared just in case you get a denial.
8. If you wish to withdraw your request for an appeal, prior to the
hearing, you should send a written request to the Appeal Bureau.
9. Employers should understand the definition of “Misconduct”
defined as a deliberate act or omission by a worker, which
constitutes a material breach of the duties and obligations arising
out of such worker’s contract of employment.
On the other hand, mere inefficiency, unsatisfactory conduct,
failure in good performance as the result of inability or
incapacity, inadvertencies or ordinary negligence in isolated
instances, or good faith errors in judgment or absences due to
illnesses are not deemed misconduct within the meaning of the
statue.
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If you have cases similar to these, you stand a good chance of an
unfavorable ruling because the evidence may not support your
disciplinary action based on the definition as described above.
The burden is on you, the employer, to prove misconduct. The
action must be deliberate, willful, and/or intentional.
10. Employers should have an attendance policy that outlines the
disciplinary action that will be taken if the absences are excessive
and unexcused. The employer must show that the employee was
aware of the policy and knew that their job was in jeopardy
should the behavior continue. The Supreme Court in Cosper v.
Iowa Department of Job Service, 321 N.W.2d 6 (Iowa 1982)
held that absences that are due to illness, and properly reported to
the employer are not misconduct, and should be excused.
Though the employer may have compelling business reasons to
terminate an employee who has excessive absences, for the
purpose of unemployment law, that employee may still qualify
for benefits based on Cosper.
11. Temporary Employers should have a policy that the employee
signs acknowledging that they understand the leave policy. It
should be clear who should be called in cases of leave requests
and that failure to follow the policy would put their job in
jeopardy. It is a good policy to have employees sign
acknowledgement of the leave policy.
12. The policy should address chronic unexcused absenteeism. If the
employee is sick, the policy should spell out the circumstances
for a sick leave letter from a physician upon return to duty. The
employee should be given a time frame for bringing in this
documentation and the employer should be consistent in
enforcing this requirement with everyone. This is a very sensitive
area in the courts even with proper documentation you still may
receive an unfavorable ruling as it relates to an employee being
terminated because they were off on sick leave.
13. Employers must assure that they have complied with the State
Law 730.5 as it relates to misconduct due to drugs, which
includes alcohol. Current legislation is not drug/alcohol friendly
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to employers who do not strictly comply with Iowa Code Section
730.5. According to the court in Eaton v. Department of Job
Service, 602 N.W.2d 553 (Iowa App. 1999), an illegal drug test
cannot provide a basis to render a claimant ineligible for benefits.
No random drug testing pre-1998.
Harrison v. Employment Appeal Board & Vicar Plastics, Inc.,
659 N.W.2nd 581 (Iowa 2003) expanded Eaton by allowing
random drug testing based on reasonable suspicion/probable
cause in the private sector.
Under reasonable suspicion theory and random drug testing,
employers must substantially comply with the statue. The courts
are not very friendly to blanket testing that does not comply with
reasonable suspicion. The courts hold a strict view as it relates to
sample collection, storage, transportation to the place of testing,
confirmatory drug testing at a certified laboratory, Medical
review Officer (MRO) review and their interpretation, the
employer notifying the employee in writing by certified mail,
return receipt requested letting them know the results with an
opportunity for them to request a second confirmatory test within
seven days at an approved laboratory of their choice, and the
employer will reimburse the employee for the cost of the second
confirmatory test. The cost must be within reason.
The most important thing is to assure that 730.5 of the Iowa Code
is strictly followed. The employer should also assure that all
managers are knowledgeable of how drug/alcohol cases are
processed if the MRO is not available. Too many cases are lost
because the HR, Employer Representative and line managers are
not familiar with the policy. Training of all supervisory
personnel is important. Posting of your policy is a must as well
as the availability of a rehabilitation program.
14. Employers are being challenged for failing to make reasonable
accommodations by not providing an employee a job that
compiles with reasonable restrictions once they return to duty
with an approved doctor’s statement.
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15. Employers must assure that they terminate an employee for a
current act of misconduct and not rely heavily on past acts.
16. An employer must show good cause in a request for a rehearing.
To request a rehearing because you did not like the decision, your
witness was on vacation or you just did not send forth crucial
evidence that was under your control might not receive favorable
consideration.
17. Employer should be advised that the employee is required, by law
to inform the employer in advance of quitting that his or her
quitting is due to intolerable or detrimental working conditions,
work related health problems, or change in contract to hire. Once
informed, the employer is obligated to make reasonable
accommodations and if this is done, this may generate a voluntary
quit by the employee, which would be attributable to the
employer where benefits may be granted.
18. Employer should not substantially change an employee’s duties;
writing or it could constitute a change in contract to hire. If the
employee quits, they may be granted benefits due to the
substantial change to their original contract of employment.
19. Temporary agencies having employees that complete a job, but
fail to call in after the completion, may see benefits given if the
temporary agency employer fails to give the employee a separate
notice in writing of the consequences of the employees failure to
call in within a specified time after completion of their last
assignment, and if the job was completed and the employer as
well as the temporary agency knew this but failed to refer the
employee to other jobs.
20. Employers who process allegations of patient abuse should
conduct their own internal investigations. While the investigation
is going on it is advisable that the employee be placed on
suspension pending the completion of their internal investigation.
The statute on confidentiality can be a hindered for the employer.
Although information obtained in a department of Inspections
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and Appeals investigation is confidential by law, information
gathered from an employer’s own internal investigation is not
confidential.
Therefore, an employer’s own investigative findings are
admissible during an administrative law judge’s hearing. It is best
that the employer seek legal advice on what can and cannot be
revealed during a hearing to assure your evidence is presented in
the best light. If fail to present your evidence based on your
internal investigation, regardless of the state outcome, you may
receive an unfavorable ruling. If the state finds abuse you may
wish to request a rehearing upon receipt of the new evidence and
show just cause why you are requesting a rehearing if you receive
an unfavorable ruling.
21. It is crucial that small employers have a procedure in place for
handling time sensitive information from workforce while they
are on extended leave or out of the office for long periods of time.
If a procedure is not in place you stand a chance of an
unfavorable ruling due to information not being processed in a
timely manner.
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As an employer you should know that employees
might be denied benefits:
o If they quit their job without good cause attributable to the
employer.
o If they are discharged or suspended for misconduct in
connection with their job.
o If they refuse suitable work or turn down a recall to suitable
work.
o If they are not able to work and/or not available to work.
o If they have unrealistic limitations on the wage, hours of days,
type of work or location of a job that they will accept.
First Level of Appeal:
Administrative Law Judge (ALJ)
If you disagree with the decision sent by workforce, you may appeal
the decision. The appeal must be postmarked or received within 10
calendar days not workdays, after the mailing date shown on the
decision.
A formal hearing with the ALJ will be scheduled by telephone. You
may request an in-person hearing. If you do request an in-person
hearing you must travel to the nearest Workforce Development Center
for the hearing.
You must telephone the Workforce Appeal Section immediately after
you receive your notice of hearing. Please do not send a fax with your
address instead of a voice phone call; oftentimes this is unacceptable
to the ALJ. Your call is to verify that you will participate and verify
the correct phone number where you and witnesses (if applicable) can
be reached.
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If you have an employer’s representative making the connections, be
sure you follow-up to make sure everything is in place. Oftentimes
the employer’s representative may not be on file with Workforce and
they may not receive a call or notice to notify you.
If you do not telephone the Appeals Unit prior to your scheduled
hearing, you will not be called by the ALJ. Failure to call because
you did not follow instructions on the notice is not a good reason to
request a remand or new hearing.
If you do not mail evidence you wish to admit into the file at least a
week in advance, to the ALJ, your evidence may not be admitted into
the record because the employee may not have a copy of the
information. If you mail the evidence in advance be sure to send a
copy certified mail return receipt to the employee and have a copy
available for the hearing. Be sure to request that the evidence be
entered into the record at the hearing. Do not assume your documents
will be automatically admitted, unless you ask for them to be entered
into the record.
What happens at the Appeal Hearing:
The ALJ will take new statements even if you gave the same facts at
the fact-finding interview. Statements at the fact-finding interview are
not sworn under oath and do not carry the reliability as statements
made at the hearing. Statements made during the hearing are
statements sworn under oath. It is testimony or evidence that the ALJ
spells out. This evidence is relied on as the truth and is subject to
cross-examination.
You may choose to be represented by an attorney (at your expense) or
you may conduct your own hearing assuring that you have the
employee file, your primary witnesses and any new exhibits you have
sent to the ALJ within a reasonable period before the hearing.
The ALJ makes an impartial decision based on information presented
at the hearing and based on the contents of your administrative file.
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The ALJ will send out a decision by mail usually 10 – 14 days from
the hearing.
Keep close tabs on any mail that you may be expecting from
Workforce Development because of the stringent time deadlines you
must adhere to.
Second Level of Appeal:
Employment Appeal Board (EAB)
If you disagree with the ALJ, you may appeal the decision to EAB.
Your Appeal must be postmarked within 15 calendar days (not work
days) from the mailing date of the decision.
EAB decides a case by reviewing evidence submitted to the ALJ. It
takes 60 to 180 days to receive the Appeal Board decision from the
date the Appeal was filed.
If you receive a decision and if it is unfavorable to your facility, you
may request a rehearing. Your request must state why a rehearing is
in order. You must have good justification. New evidence that
should have been considered at the first level may not be considered if
you do not send a written statement stating why this information was
omitted or not presented at the First Level of the Hearing.
Please note you have twenty days from the date of the EAB’s decision
to file a rehearing. If you choose to forego filing for a rehearing, you
have thirty days from the date of EAB’s decision to file a petition for
your one review.
If you have a hearing and you disagree with the decision of EAB you
may file a petition for judicial review in Iowa District Court at your
expense. You may request a rehearing before the Appeal Board but
these are rarely granted.
These helpful tips may not guarantee that you will win your case, but it will assist you in
presenting your evidence in a clear and concise manner to the ALJ or the EAB. For
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thorough review, consult your Workforce Development Booklet, which is available from
any Workforce Office.
MaryAnn Spicer
Management’s Representative
Iowa Employment Appeal Board
Lucas State Office Building
Des Moines, Iowa 50319
Email: maryann.spicer@dia.state.ia.us Office: 515-281-8113
Facts 2004 updated November 8, 2004, replaces Facts 2001 dated December 18, 2000.
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