How To Win an Unemployment Insurance Appeal The Law Office of Dustin Stohler The Unemployment Insurance Law Firm How To Win an Unemployment Insurance Appeal Dustin Stohler

Dustin Stohler Why are we here? The Law Office of The Unemployment Insurance Law Firm Why are we here? To put money back in your pockets. Employers pay for improper charges caused by: Claimant fraud and mistake; Government error; Lack of education for employers.

Dustin Stohler What should you do? The Law Office of The Unemployment Insurance Law Firm What should you do? Audit your account to remove improper charges and identify mistakes you are making; Take steps to prevent part time, intermittent, and seasonal employees from drawing; Track your claims to ensure that improper charges don’t appear on your account; Educate yourself and your managers on the practices you should implement now to win claims by terminated employees. Question unfair charges.

Dustin Stohler Taxes The Law Office of How are tax rates calculated? The Unemployment Insurance Law Firm Taxes How are tax rates calculated? Which benefits are charged to my account? Benefits charged proportionately to base period employers. An employer could be in a base period for up to 2.5 years. Should not be charged for disqualifying events.

Dustin Stohler Taxes The Law Office of How much will my taxes change? The Unemployment Insurance Law Firm Taxes How much will my taxes change? - Highest rate: $390 to $969 per employee - Lowest rate: $82.50 to $71.25 per employee If you aren’t at the highest or lowest rate, your taxes will go up in 2011 and 2012, but will approximately equal the benefits charged to your account over time. .

Dustin Stohler Benefits The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Benefits Eligible claimants can currently qualify to receive: Up to 26 weeks of Regular UI Up to 73 weeks of Federally funded UI Eligible Hoosiers can receive up to 99 weeks of benefits

Dustin Stohler Eligibility The Law Office of The Unemployment Insurance Law Firm Eligibility Claimants are eligible for benefits if they: are unemployed through “no fault of their own”; are able and available for full-time work; and are actively seeking full-time work.

Dustin Stohler Unemployed The Law Office of The Unemployment Insurance Law Firm Unemployed Claimants are unemployed if: they receive no wages or benefits for the week; or the employee’s regular hours have been reduced due to a lack of work.

Dustin Stohler Unemployed The Law Office of The Unemployment Insurance Law Firm Unemployed A claimant is NOT unemployed: if he reduce his hours (sick, vacation, etc); when he is working his regular schedule; when agreed to be unemployed during the period; during a seasonal employer’s off season; between terms.

Dustin Stohler Unemployed The Law Office of The Unemployment Insurance Law Firm Unemployed Track the charges to your account. Expect pushback from the department. Don’t accept answers that seem unfair.

Dustin Stohler Winning your claim The Law Office of The Unemployment Insurance Law Firm Winning your claim You don’t have to pay for benefits if the Claimant: - voluntarily quit; or - was discharged for cause, BUT YOU have to prove the separation was voluntary or for cause.

Dustin Stohler Discharge for Cause The Law Office of The Unemployment Insurance Law Firm Discharge for Cause         (1) resume fraud;         (2) rule violation;         (3) poor attendance;         (4) willfully damaging the employer's property;         (5) insubordination;         (6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours;         (7) endangering safety of self or coworkers; or         (8) incarceration in jail following conviction or for any breach of duty in connection with work.

Dustin Stohler Rule Violation The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Rule Violation You CAN fire employees for violating your policies, but you must show: There was a policy; The employee violated the policy; The employee knew about the policy; The policy was reasonable; AND The policy was uniformly enforced.

Dustin Stohler Rule Violation STEP 1: HAVE A POLICY Get a hand book. The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Rule Violation STEP 1: HAVE A POLICY Get a hand book. Have it reviewed by a professional. Follow it.

Dustin Stohler Rule Violation TRAIN employees on your policies The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Rule Violation TRAIN employees on your policies Document the training Keep it in the employee’s file Get the employee’s signature! Don’t violate any policy you have issued.

Dustin Stohler Rule Violation The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Rule Violation DOCUMENT the reasons for the termination. Document any progressive discipline, INCLUDING verbal warnings. Document any investigation that occurred such as witness statements, police reports, and any other evidence of the wrong doing. Document any warning to employee that his job is in jeopardy. GET A SIGNATURE!

Dustin Stohler Voluntary Quits The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Voluntary Quits If an employee quits, he is ineligible UNLESS he shows he had just cause for quitting. Problem: Claimants often deny they quit. Claimant must express an intent to quit. If the judge finds claimant was terminated, you have no evidence of just cause.

Dustin Stohler Voluntary Quits DOCUMENTING QUITS - Misunderstandings: The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Voluntary Quits DOCUMENTING QUITS - Misunderstandings: The no show The altercation SOLUTION: Document what occurred and ask them to contact you if they disagree.

Dustin Stohler Voluntary Quits The Harassee The Law Office of The Unemployment Insurance Law Firm Voluntary Quits The Harassee Show he didn’t follow the reporting structure. Show that alleged harassment was reasonable discipline, not harassment What was said? Did you violate the rule? Was anyone else treated differently?

Dustin Stohler Voluntary Quits Unilateral Changes The Law Office of The Unemployment Insurance Law Firm Voluntary Quits Unilateral Changes Show that there was no change in terms (job description, employment agreement); or Show that the employee agreed to the changes (email chain, letter documenting meeting, etc.)

Dustin Stohler Voluntary Quits Non-disqualifying reasons: The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Voluntary Quits Non-disqualifying reasons: Left for other work Left to follow spouse (not charged) Domestic violence (not charged)

Dustin Stohler Defending the Claim Levels of review: Adjudication The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Defending the Claim Levels of review: Adjudication Appeals Review Board Court of Appeals

Dustin Stohler Defending the Claim The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Defending the Claim Respond ASAP with a brief explanation, contact information, and relevant documents. Document Checklist: Policy(s) Acknowledgement of receipt / training Evidence of violation (written discipline, warnings, investigation, police reports, termination letters etc.) Justification for the rule (optional)

Dustin Stohler Appeal IMMEDIATELY: The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Appeal IMMEDIATELY: Request a copy of the adjudication file. Fax your participation form to DWD. Send your evidence to the ALJ and claimant.

Dustin Stohler Appeal Prior to the appeal The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Appeal Prior to the appeal Review adjudication file – what is claimant alleging? Did he make any relevant admissions? Gather first hand witnesses Who witnessed the event Who investigated the event HR generally is not a first hand witness

Dustin Stohler Appeal PRIOR TO APPEAL: Prepare your witnesses The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Appeal PRIOR TO APPEAL: Prepare your witnesses Explain the process Explain their role Review the documents with them Walk through their story with them – are there any details they need to research? Impress upon them the importance of telling the truth

Dustin Stohler Telephone Hearing Get the call The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Telephone Hearing Get the call - Return participation form quickly. - Provide alternative numbers. Have evidence ready - Send documents as soon as possible. - Explain any delays.

Dustin Stohler During the Hearing Direct testimony: The perfect pitch The Law Office of Dustin Stohler The Unemployment Insurance Law Firm During the Hearing Direct testimony: The perfect pitch Claimant was terminated because he violated the policy against _____, attached as exhibit A. Claimant signed exhibit B acknowledging he had received a copy of this policy on ___. Claimant had previously received a written warning for violating this policy on ___, attached as exhibit C. Present evidence of the violation. Present testimony on reasonableness of the policy. Be prepared to show that you treat all violations equally.

Dustin Stohler Cross Examination The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Cross Examination Use adjudication file to prepare for hearing What will claimant’s story be? What questions or documents? Use questions to introduce facts claimant left out or show that claimant’s story is implausible. Ask questions that have short answers. NEVER ask why.

Dustin Stohler Performance The Law Office of The Unemployment Insurance Law Firm Performance Must show that employee chose not to perform. Consider: - Is it actually a rule violation or insubordination? - Can you show that it is the claimant’s choices? - Recommend possible improvements - Discipline for failure to implement - Keep proposals as objective as possible

Dustin Stohler Insubordination The Law Office of The Unemployment Insurance Law Firm Insubordination Must show that employee intended to refuse to carry out a reasonable order. - Failure to do the job is not enough; - Ambiguities will be construed against you. What to do? - Clarify that you are giving the employee a direct order; - Clarify that refusal could result in termination; - Confirm that the employee is refusing; - Confirm the employee’s reason for the refusal.

Profanity / Disrespect The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Profanity / Disrespect Not always just cause for termination. - Is it insubordination? - Is it a policy violation? If not, courts will consider factors such as: - was it a single incident or a barrage of profanity; - severity of the language; - the cause of the outburst; - was it directed at an individual; and - who witnessed it.

Dustin Stohler Drugs and Alcohol Need to provide: The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Drugs and Alcohol Need to provide: - A signed admission; - A professional drug test (including chain of custody documents); or - Document refusal to submit to the test.

Dustin Stohler Attendance The Law Office of The Unemployment Insurance Law Firm Attendance No Policy: Poor attendance may be just cause IF the individual doesn’t have an excuse. Policy: Termination pursuant to the policy is probably just cause, even if the employee has an excuse, but the courts haven’t ruled on recent legislative changes.

Dustin Stohler Legislative Update The Law Office of - 50% Penalty The Unemployment Insurance Law Firm Legislative Update - 50% Penalty Gross misconduct No fault attendance policies may be just cause A tax increase to “fix” the trust fund - FUTA taxes - will increase by .3% until the rate hits 6.2% or the fund is solvent. 

Dustin Stohler Questions? The Law Office of Dustin Stohler The Unemployment Insurance Law Firm Questions? Dustin Stohler dstohler@stohlerlaw.com www.stohlerlaw.com (317) 937-7323