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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