Unemployment Law ContinuedI n the October 2011 edition of The Greater Lansing Business Monthly, Karen Bush Schneider wrote a wonderful article for employers on how to respond to unemployment insurance claims. This is an addendum from an attorney who has represented multiple unemployed workers in disputed unemployment cases and has seen employers lose because of the following mistakes:
Do not dispute a claim without strong evidence of isconduct. In her article, Schneider noted the employer usually has a high burden to show why the unemployed worker should not receive unemployment benefits, and she cited numerous examples of such misconduct. If your company does not have strong evidence of employee behavior that rises to that level of misconduct under the current law, do not waste the Unemployment Insurance Agency’s (UIA) or the administrative hearing system’s time by disputing a claim. Even if there has been serious misconduct on the part of the employee, without evidence, the employer will still lose. Ensure you document the worker’s behavior and incidents thoroughly at the time it occurs, and supply this information to the UIA with your initial response to the employee’s claim.
Do not lie about unemployed worker behavior. This one should seem simple, but apparently it bears repeating. If your company was closed due to circumstances beyond the employee’s control (i.e., a fire in the plant), do not claim the unemployed worker did not show up for work on those dates. If there is documentation that an unemployed worker was fired, do not claim the unemployed worker left voluntarily. Hoping the employee will not be knowledgeable enough to dispute these claims is not only unethical but also dangerous in that it will probably backfire on the employer.
Show up for the hearing. This also should seem simple, but it still happens that the employer disputes a claim or calls for a hearing and then does not show up. If there are mitigating circumstances as to why the employer or the employer’s representative could not make the hearing, there is a 30-day window to let the administrative law judge (ALJ) know what happened, and then the ALJ can determine if another hearing should be held. Simply not showing up is once again a waste of everyone’s time, and the ALJ has the authority to allow the unemployed worker to receive or continue receiving benefits in these cases.
Involve the Human Resources Department in employment issues. If your company is large enough to have a Human Resources (HR) Department, make sure HR is aware of all issues involving the former employee, including reprimands, layoffs, resignations and reassignments. If there is a dispute as to whether an unemployed worker turned down suitable, alternative employment, make sure HR has documentation of the job offer. Unemployment hearings require witnesses to have personal knowledge of the case. Bringing HR representatives to testify without any personal knowledge or documentation of the case directly violates that rule and, once again, does not reflect well on the employer.
Thoroughly document any alternative job offers. If an employee’s position has been eliminated, but the employer is offering what it believes to be a comparable position, thoroughly document the offer of the alternate position. A detailed job description of the specific position should be given to the employee, along with the pay scale (all of this should be given to HR, as well), and the employer should have the employee sign an acknowledgment stating that the employee received notice of the alternative position. Once sufficient documentation of an alternative job offer is provided at a hearing, the burden would then shift to the unemployed worker to show that the position was not legally “suitable.” Without such documentation, the ALJ may regard any such alternative job offer as merely ethereal and will disregard any claim that suitable, alternative employment was refused by the unemployed worker.
While all of these tips seem to be mere common sense, this attorney has seen numerous employers lose their appeals because of such missteps. In legal matters, thorough documentation is crucial. Moreover, whenever there is a dispute over benefits, this documentation needs to be provided to the UIA from the outset. Without it, it is not worth the company’s time to contest a former employee’s claim for unemployment benefits.
| ||Christine Caswell is a Lansing-area attorney who practices in administrative law, elder law and probate and estate planning.|