Defending Unemployment Claims
Before you become frustrated and quit reading this article, let me qualify this pricey advice by saying—it does depend! It depends on the former employee’s eligibility to receive unemployment benefits and the reason he/she is no longer employed by your company. Analyzing these two factors will usually allow an employer to answer the question for itself.
Assuming your former employee meets the minimum workweek requirement for benefits, he or she must also:
• Have filed a timely claim for unemployment benefits
• Registered for work with the Capital Area Michigan Works! agency when the claim is filed
• Be able to work, which means that the unemployed worker must be able to perform the work he or she performed in the past or was trained to perform
• Be available for full-time, suitable work, which means that the unemployed worker must be willing to accept any full-time work that is suitable, considering his/her prior earnings, experience, travel distance, training, physical fitness, and risk to the worker’s health, safety and morals
• Be seeking work in ways that are generally accepted for the worker’s occupation. That would include making phone calls, searching job postings, submitting resumes and applications, and going for job interviews
• Report, as directed, to the Unemployment Insurance Agency (UIA).
• Participate in re-employment activities required under the Worker Profiling System
Failure to meet these requirements in any given week renders the unemployed worker ineligible for benefits for an equal number of weeks.
Grounds for disqualification
An unemployed worker, who otherwise meets the eligibility requirements for benefits, may be disqualified from receiving these benefits if one of the following circumstances is associated with his/her separation:
The worker will be disqualified from receiving unemployment benefits if he or she has quit a job with your company without good cause attributable to the employer. “Good cause” means reasons that would cause a reasonable person to leave a job, such as harassment or discrimination in the workplace. Generally, before the worker quits the job, he or she must bring the objectionable situation to the employer’s attention and give the employer an adequate amount of time to correct the problem. Good cause for quitting a job does not usually include an employee’s personal reasons, such as transportation or childcare problems.
An unemployed worker may be disqualified for benefits if his/her employment was terminated for misconduct within the meaning of Section 29 of the Michigan Employment Security Act. MCL 421.29. The Michigan Supreme Court in Carter v Employment Security Agency, 364 Mich 538, 541 (1961) defined misconduct as a “willful or wonton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Misconduct also includes gross negligence or a reckless disregard for the employer’s interests or the employee’s duties and obligations. Generally, a worker must have been warned of the fact that his or her actions were unacceptable before the worker can be found to be disqualified. Examples of misconduct would include repeated violations of company rules or policies, theft, gross insubordination, fighting in the workplace, breach of trust, willful destruction of company or coworker property, and a history of unexcused absences or tardiness. In the case of minor infractions, a single incident will not rise to the level of misconduct. The employer will have to show a pattern of infractions, warnings and progressive discipline.
Misconduct does not include incompetency, inability to perform a job, or mere negligence. The law protects those who are unable to perform, not those who are unwilling to perform.
A worker will also be disqualified from receiving unemployment benefits if the worker is:
• Discharged for failing a drug test, or refusing to take a drug test, or for possessing or using a controlled substance at work
• Discharged for failing to report back to a temporary service agency
• Placed on a disciplinary layoff
• Engaged in certain types of labor disputes
• Refused an offer of suitable work
Tips for responding to unemployment claims
The following are some tips for employers in responding to claims for unemployment:
1. Fill out all unemployment claims completely, providing sufficient detail regarding the basis for disqualification. For example, if the disqualification involves misconduct, cite the rule or rules violated, the dates of violations, the number of warnings, prior discipline and how the violations impacted your business. It is not sufficient to merely provide conclusory statements such as that the employee was fired for misconduct or absenteeism.
2. Submit all unemployment forms and appear for all unemployment hearings on a timely basis. Imagine how the UIA views an untimely answer filed by an employer claiming that its former employee should be disqualified for excessive tardiness!
3. Be prepared to prove disqualification. It is typically the employer’s burden to prove misconduct, not the employee’s burden to prove that he or she was not guilty of misconduct. If a claim ends up at an administrative hearing, be prepared to submit copies of your employment rules, and all warnings and discipline given to the employee prior to his/her termination of employment. Make sure that the supervisor who was involved in witnessing the misconduct and counseling the employee is present to testify.
4. Utilize a labor employment law professional to represent you at the hearing, especially in complicated cases. If your company does not have labor and employment law counsel, you may obtain a representative, at no cost, through the UIA’s advocacy program. A list of statewide advocates is maintained by the advocacy program and may be accessed by calling 1-800-638-3994. Professionals participating in the advocacy program are not necessarily attorneys, and are not employed by the Unemployment Insurance Agency.
The foregoing is not intended to be an exhaustive list of the considerations employers should weigh when evaluating whether to challenge an unemployment claim. Many other considerations, which space does not allow to be addressed in this article, should also be examined, such as whether your former employee will likely file an employment lawsuit or grievance, whether the employee has entered into a separation agreement, or is receiving retirement benefits or other special terminal payments. Seeking the advice of your labor and employment law professional can greatly assist you in responding to unemployment claims correctly.
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Karen Bush Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.