Workforce Development in Indiana How to WIN your unemployment insurance hearing.

Liberal Construction of Statute “We start with the proposition the Employment Security Act should be liberally construed in favor of employees because it is social legislation meriting such construction in order to promote its underlying humanitarian purposes.” Bowen v. RB, 362 N.E.2d 1178 (Ind. Ct. App. 1977).

Liberal Construction BUT THERE’S STILL HOPE! What does that mean????? Ties go to the claimant! The deck is stacked against you! BUT THERE’S STILL HOPE!

DISCHARGE FOR CAUSE     (d) "Discharge for just cause" as used in this section is defined to include but not be limited to:         (1) separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge;         (2) knowing violation of a reasonable and uniformly enforced rule of an employer;         (3) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness;         (4) damaging the employer's property through willful negligence;         (5) refusing to obey instructions;         (6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours;         (7) conduct endangering safety of self or coworkers; or         (8) incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owed an employer by an employee.

DISCHARGE FOR CAUSE 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.

STEP 1: Start your business Your business will be covered if: you employ 1 or more employees for 20 different weeks in a year; - OR - you pay over $1500 in wages.

STEP 2: IMPLEMENT POLICIES GET A HAND BOOK! HAVE IT REVIEWED BY A PROFESSIONAL! FOLLOW IT!

For more information, contact your local WorkOne office. STEP 3: HIRE EMPLOYEES INDIANACAREERCONNECT.COM For more information, contact your local WorkOne office. www.workoneworks.com

STEP 4: EXPLAIN YOUR POLICIES TRAIN employees on your policies Document the training Keep it in the employee’s file Get the employee’s signature!

STEP 5: FIRE YOUR EMPLOYEE DO NOT terminate your employee due to lack of work (layoff). Exceptions: Teachers Seasonal employees. DO NOT violate any policy you’ve issued.

STEP 5: FIRE YOUR EMPLOYEE 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!

STEP 5: FIRE YOUR EMPLOYEE YOU CAN’T FIRE ME… If an employee quits, he is not eligible UNLESS he can show he had just cause in connection with the work 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.

STEP 5: FIRE YOUR EMPLOYEE DOCUMENTING QUITS - Misunderstandings: The no show The altercation SOLUTION: Send a letter documenting what has occurred and invite them to contact you (at a specific number) if they disagree.

STEP 5: FIRE YOUR EMPLOYEE DOCUMENTING QUITS Potentially Eligible The medical condition Claimant is eligible if he can show that employment ended 1) involuntarily 2) as a result of 3) a medically substantiated 4) physical disability and 5) the employee made efforts to maintain the employment relationship.

STEP 5: FIRE YOUR EMPLOYEE DOCUMENTING QUITS - Potentially Eligible The Harassee Show that there was a reporting structure and he didn’t follow it. Show that alleged harassment was reasonable discipline, not harassment What was said? Did you violate the rule? Was anyone else treated differently?

STEP 5: FIRE YOUR EMPLOYEE DOCUMENTING QUITS - Potentially eligible An employee may be able to show just cause for quitting if an employer unilaterally changes the terms and conditions of employment. 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.)

STEP 5: FIRE YOUR EMPLOYEE DOCUMENTING QUITS - Eligible reasons: Left for previously secured work; Left a second job; Accepted recall; Left to join the military; Left to follow spouse (not charged); Domestic violence (not charged)

DEFEND THE CLAIM Levels of review: Adjudication Appeals Review Board Court of Appeals

Adjudication 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)

Appeals IMMEDIATELY: Request a copy of the adjudication file Fax your participation form to DWD Send your evidence to the ALJ and opposing counsel

Appeals 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

Appeals 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

Telephone Hearings Appellate Division now schedules approximately 95% of cases for telephone hearings Eliminates travel time for parties No parking or travel issues No loss of productivity for the day of hearing More efficient for ALJ’s who can take cases from anywhere in the state.

Telephone Hearings: Getting the call Return participation form with contact number & name. Provide no less than 1 day in advance of the hearing so that there is adequate time for form to reach ALJ. Faxed forms are acceptable; mail and/or personal delivery is acceptable as well. Consider providing alternate number or instructions in case of busy signal. Witnesses and other representatives should be available.

Telephone Hearings: Getting the call Let people who may get the call know you are expecting it. Make sure the number provided accepts incoming calls.

Appeals During the appeal Order of testimony depends on issue Discharge – Employer goes first Quit – Claimant goes first Direct testimony –telling your story Cross examination – questioning the claimant

Appeal 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.

Appeal 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. Try to ask questions that have short answers to which you know the answer.

Strategic Considerations: Hearing Procedure Know basic information about claimant. Date of hire, pay, job position, separation date, reason(s) for separation Party with the burden of proof goes first Employer: Termination and Deductible Income Claimant: Quit and Able & Available ALJ generally asks questions to develop the record; however, this is your case, so always feel free to add additional relevant information. Case starts with direct examination (this is were all of your relevant evidence and testimony should be).

Drug Policies To admit the results of a drug test into evidence, an employer must produce, at a minimum, the following documents: 1. A document signed by the tested employee acknowledging that his specimen has been taken and sealed; 2. A document signed by the witness to the taking of the specimen, the sealing of the specimen, and the forwarding of the specimen in the chain of custody to the laboratory; 3. A certificate executed by the laboratory certifying that the specimen was received intact within the chain of custody and that the chain of custody was maintained inside the laboratory; and 4. Certification by the laboratory of the test results together with documentation of the tests taken and the cutoff value level for each test. The evidence must establish that a positive test was confirmed using gas chromatography/mass spectrometry techniques.

Any breach of duty in connection with work reasonably owed an employer by an employee Employees have a duty or obligation for certain things in connection with their work. Duty to obey lawful and clearly given instructions Duty of loyalty (can’t compete with employer’s interests) Also have duties for financial accountability (employer’s money); work performance, etc.

Ethical Considerations in Unemployment Law Ex Parte Communications While an appeal is pending, ALJ may not: directly or indirectly communicate with a party to an appeal or any person with an interest in the outcome of the appeal regarding any substantive issue Confidentiality Information obtained from any person in the administration of the UI laws is confidential and may not be disclosed except in the obedience of a court order Pursuant to US DOL guidance, subpoena is not a court order Exceptions to disclosure include disclosure to the subject of the information and non-identifying information