Controlling Unemployment Taxes
Presented by Unemployment Insurance
Services
www.unemployment-services.com
Understanding the System
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Origins
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Created by FDR as part of the New Deal
Created to provide temporary relief to individuals
unemployed through no fault of their own
Completely funded by the employers of the state
through payroll taxes or reimbursable payments
It is not a welfare or entitlement program
How Does the System Work
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The claimant has a twelve month period in which to
claim up to 20 weeks of benefits in MO and 26
weeks in KS.
The liability and the interested employers are
determined by the base period.
The base period is the determined by excluding the
current quarter and the most recently completed
quarter.
The previous four quarters make up the base
period.
Benefits & Determinations
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The claimant can collect a maximum of 20-26 weeks of
benefits during the life of their claim.
Maximum liability is $6,400 in MO and $12,194 in KS
In cases of resignations, the claimant has the burden to
show they resigned for good cause attributable to the
employer.
In discharges, the employer has the burden of showing
misconduct
Misconduct is defined as a “willful or deliberate violation of
duty or responsibility reasonably owed the employer”
How does the Employer get Charged
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Each employer maintains a UI account
In Missouri in lieu of a tax rate, the employer agrees to
“reimburse” the trust fund dollar for dollar to former
employees who collect UI benefits.
In Kansas, the employer is charged a tax rate on the total
annual payroll based on a ratio of annual benefit charges to
the two year average payroll. This is referred to as being
governmental rated.
Substantial savings can be achieved through proper claim
management.
Changes to Law in Kansas
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HB 2105 – Effective 7/1/13
Eliminated severance pay exemption
Narrow the definition of “good cause” when
an employee resigns
Greatly broadened “misconduct” in
employer’s favor
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Changes in attendance
Changes in drug testing
Changes in proving misconduct for performance issues
Attendance in Kansas
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No longer necessary to have a written policy
– Only must show that an expectation exists
Employers no longer must give the employee
a written warning to prove misconduct
Burden is placed on the claimant to show
“good cause” for being absent
If claimant is alleging health as the “good
cause” they must provide medical proof.
Drug testing in Kansas
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Standards loosened to now include
“reasonable suspicion” as opposed to
“probable cause”
Allows for disqualifications in a “zero
tolerance policy”
Adds test tampering as possible
misconduct
Elevates a drug or alcohol offense to gross
misconduct
Missouri Philosophical Changes
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Much more difficult environment for
employers
Heavily influenced by current political climate
Labor friendly appeal referees
Emphasis is on proving that the actions were
“willful and/or deliberate” and that the
claimant’s actions were intentional
Very difficult to prove misconduct in “isolated
instances”
“He with the best story…”
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Protesting the UI claim
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Identify the issue
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Resignation or Discharge
Burden of proof
Use the letter of protest as a road map
Support the protest
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Policies
Written Warnings
Witness Statements/other documentation
Misconduct is the goal, not justification of discharge
“I Quit my job because..”
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The employee has the burden of proving good cause that was
attributable to the employer
Claimant must show that they made every attempt to preserve the
employment
Good cause can be one of the following:
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Hostile work environment
Discrimination or harassment
Change in the hiring agreement
Good cause is not:
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General dissatisfaction with the employment
Disagreement over disciplinary actions
Transfer of work site or change in job description if notified
at time of hire that employer reserves the right to make
adjustments
Things to Remember about Resignations
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Get a letter of resignation whenever possible
Allow the employee to fulfill their notice period
Always document issues that might be in dispute
If you can not obtain a written resignation, send
the claimant a certified letter
“Constructive discharges” are NOT resignations
We accepted his resignation and told him
to stay home
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If you let him go early, the claimant will be
eligible for the difference between the last day of
their notice period and their actual last date they
worked
Let the employee complete their notice period
The employee can be re-assigned
The employee is obligated to follow your policies
during this period
Do not stop the documentation process
Difatta-Wheaton v. Dolphin Capital
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Missouri Supreme Court decision
Holds that an employee who is released due
to their inability to return to work from health
related issues will be considered discharges.
Employers will be forced to prove misconduct
connected to the employment.
Hold the job for as long as possible
Attendance in Kansas
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Written attendance policy is no longer
required (but strongly suggested)
Employer only must show that they had a
known expectation and was consistently
applied
Written warnings are no longer required.
Proof of reprimand will reinforce position
Claimant must show that if the issues were
health related they were under the care of a
doctor
Attendance in Missouri
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The statute: Infractions of an employer’s attendance policy can
be misconduct, if the employer can show that the claimant had
instances of attendance that were avoidable and/or improperly
reported.
 The claimant needs to have knowledge of a written attendance
policy
 Written warnings enhance the ability to prove misconduct
 Emphasis will be placed on the FINAL instance of absenteeism or
tardiness
 If final incident is not disqualifying, the state will seek a pattern of
avoidable and/or improperly reported instances
 Extremely important to document reasons for absences or
tardiness. Include time of call to establish if instance was
properly reported.
 One instance of failure to properly report the incident or if the
instance was avoidable, misconduct can be established.
How to beat the Attendance Statute in
Missouri
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Do not focus on number of absences
Get supervisors to document reasons and times of
the instances
Reprimand the employee for failure to properly
report the incident of absenteeism or tardiness
“Failure to report” removes the good cause issue
By focusing on reporting issues, you focus on a
black and white issue
Drug Testing
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Misconduct can be the use or impairment caused by alcoholic
beverage or a non-prescribed controlled substance
Has to be conducted by a certified lab
 Can be urine, blood, saliva, or breath test
 Must show a chain of custody approved by certification
 Sample must be collected by a licensed health care professional
The test can be conducted if there is probable cause
Can be requested or required if the employee is notified at the
time of hire that it is a condition of employment
 Random testing, if mandated by law
 Post-accident testing
 Testing required by a Employee Assistance Program
Defining Misconduct in Today’s
Environment
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Emphasis is on proving “intent”
No longer enough to show a violation of
policy
Documentation must reflect a “intentional or
deliberate disregard for employer’s interests
Buzzwords are “intentionally” and/or “willfully”
Documenting Other Employee
Deficiencies
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Select issues that you can prove
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Show that the claimant was aware of his
responsibility
The claimant has shown the ability to perform the
task in the past
Be specific: What was expected, what they failed
to do correctly and how they can improve
Whenever possible use your policies or job
descriptions
Protesting issues of performance
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Show a progression of discipline/coaching
The employee was aware of their responsibility
The employee has performed his tasks correctly and
timely in the past
The protest is not a justification of discharge
Avoid the implication that the employee was
“unable” to perform the work
If possible be patient. Must prove the acts were
intentional and willful
The Effects of a Good Written Warning
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Provides detail for the examiner
The claimant was aware of company
expectation
The claimant was receiving clear instructions
Most importantly, shows that the claimant had
control over the events
Helps to establish “intent”
Gives the employee the opportunity to
improve upon their deficiencies
Issues of “Gross Misconduct”
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Gross misconduct is defined as behavior or
actions that that warrant immediate discharge
Includes insubordination, theft, workplace
violence, and harassment
Documentation is crucial
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One chance to prove misconduct
Witness statements
First hand information essential
“You can’t handle the truth!”
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The unemployment hearing process
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Conducted by an Unemployment Law Judge
Both parties have the right to confront each other
First hand testimony is absolutely essential
Documentation is required to support testimony
Rules of testimony and evidence are enforced
Prepare for the hearing
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Determine the issue
Decide who should testify
Make a timeline
Discuss the hearing beforehand