Unemployment Compensation: Can They Really Collect for That? By 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 same. 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 someone. •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 misconduct.” 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 $210 +$84 $294 -$200 $94 WBR 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 $210 WBR +$84 $294 Partial Benefit Credit (40% of WBR) Combined Total -$300 -$6 Less wages for 3 days of work No UC paid UC Hearing Checklist • Know your cost • Know your issue • Be prepared with: 1. 2. 3. 4. 5. 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 separations. • 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 To:_______________________ 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. Acknowledgment: (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 system?