PASBO Conference 2012 - Interstate Tax Service Inc

Unemployment Compensation:
Can They Really Collect for
Geoffrey D. Moomaw, President
Interstate Tax Service, Inc. (ITS)
Voluntary Separations
Notice the word “quit” doesn’t appear on
this slide.
Claimant must prove necessitous and
compelling reasons to stop work.
Quit and Leave of Absence treated the
Voluntary Separations
Health issues.
Following spouse.
Hostile work environment.
What else?
Voluntary Separations
• Fishel vs. UCBR
– Quit in lieu of possible discharge
• 674 A.2d 770 Pa.Cmwlth., (1996)
• Managers/supervisors must be aware that
they do NOT have the authority to fire
•Involuntary Separations
Employer must prove that the Claimant was
discharge as a result of “willful misconduct.”
Willful misconduct is not defined in the PA
UC Law, but the Courts have held it to a
deliberate, intentional, conscious, blatant
violation of policy/procedure/etc.
Involuntary Separations
• Discharge and suspension treated the same
under the Law.
• Employer carries burden of proof – “willful
Involuntary Separations
• Poor performance, i.e., 2 unsatisfactory
evaluations are NOT “willful misconduct.”
• Attendance.
Involuntary Separations
Failed drug screen.
Improper contact/conduct with student.
Left student on the bus.
What else?
Substitutes collecting UC
• Yes – any employee who’s hours fluctuate
from week to week can collect UC.
• Their entitlement is dependent upon their
gross earnings on a calendar week basis.
• Same situation applies to individuals who
have had their hours reduced.
Example – Sub avg. 4 days per week
@ $100 daily. Paid once a month
• Works 2 days during Thanksgiving week
Partial Benefit Credit (40% of WBR)
Combined Total
Less wages for 2 days of work
Amount eligible for UC for that week
Example – Sub avg. 4 days per week
@ $100 daily. Paid once a month
• Work week reduced two days
Partial Benefit Credit (40% of WBR)
Combined Total
Less wages for 3 days of work
No UC paid
UC Hearing Checklist
• Know your cost
• Know your issue
• Be prepared with:
Claimant’s last position title.
Claimant’s first day of work.
Claimant’s last actual day of work.
Claimant’s final rate of pay.
Whether claimant’s position was full time or part time (if part time,
provide average number of hours per week).
· Relevant documentation!!!
• Firsthand witnesses!!!
Reasonable Assurance hearings
Standard questions asked at such a hearing
Claimant’s (Clmt) title
Date of Hire
Rate of Pay
In what capacity was the Clmt employed during the 10-11 school year
Last date worked prior to Summer Break 2011
Last date the students attended classes during the 10-11 school yr.
Why did the Clmt not work after his last date worked – summer recess commenced
is the suggested answer.
Was Clmt notified in any manner regarding his/her status for the 11-12 school yr.
How and when – Bring copy of the Reasonable Assurance ltr.
In what status does the District plan on using the Clmt during the 11-12 school yr.
What will be the Clmt’s rate of pay during the 11-12 school yr.
When do the students return for the 11-12 school yr.
Is the claimant subject to being called to work during the summer recess
Willful Misconduct Hearings
The District bears the burden of proof and should try to limit the reason for
discharge to a specific issue rather than taking a “shotgun” approach.
You must present your case with first hand witnesses to the incident that resulted
in the claimant’s discharge.
Written statements will be considered hearsay.
Where necessary, present evidence of progressive discipline – prior warnings are
generally considered matters of record and need not be proven to the referee by
way of first hand testimony.
Where necessary, present policy in question and any acknowledgement that
claimant was made aware of said policy.
Take only the witnesses you need to the hearing – referees appreciate concise
presentations. This will enhance your credibility with the referee over time.
Voluntary Separation Hearings
The CLAIMANT bears the burden of proof.
Both resignations and leaves of absence are considered voluntary
The claimant must show that they exhausted all alternatives to leaving
their position prior to severing the employment relationship.
The employer must show that the claimant did not exhaust all alternatives
to severing the employment relationship and that continuing work
remained available to the claimant as of the last day of work.
Examples of qualifying voluntary separations include health
considerations, sexual harassment, hostile work environment and a
spouse’s mandatory transfer to a distant work location requiring a family
to move.
Permanent/One Time RA Letter
Notice of Reasonable Assurance of Continued Employment
From: <enter whoever is appropriate>
Date: ____
According to policy of the <enter educational institution’s name>, “employees will continue to be
employed from year to year unless notified to the contrary.” Therefore, please be advised that you can be
reasonably assured that your position will be available to you for the remainder of the current school
year. Furthermore, you can be reasonably assured that your position will be available to you after all
holiday breaks occurring during the current school year.
If you do not receive notice that your position/employment will be terminated or modified, then you may
be reasonably assured that the <enter educational institution’s name> intends to retain your services in
the same capacity for the following school years and after all holiday breaks contained therein.
Please note that this notice is not a contract of employment, but is issued for the purpose of meeting the
provisions of the PA Unemployment Compensation Law and its related regulations.
(Signature, Printed Name and Date)
My signature above indicates ONLY that I have received and read the above statement.
Random thoughts/comments
• Part Time coaches and unemployment.
• Should we rehire a retiree?
• Employee handbooks.
– Department specific
• What else?
Questions & Answers
What are your gripes about the UC