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HOW TO HANDLE UNEMPLOYMENT CLAIMS

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Presentation on theme: "HOW TO HANDLE UNEMPLOYMENT CLAIMS"— Presentation transcript:

1 HOW TO HANDLE UNEMPLOYMENT CLAIMS
PRESENTED BY ALICE A. BARTLETT Labor & Industrial Relations Commissioner Employer Representative Department of Labor and Industrial Relations

2 REASONS EMPLOYERS LOST
A THREE MONTH REVIEW OF REASONS EMPLOYERS LOST CLAIMS: DID NOT CALL IN TELE NUMBER BURDEN OF PROOF – DRUG CASES DID NOT PARTICIPATE IN TELE HEARING - 51 CELL PHONE PROBLEM - 2 LATE APPEAL - 5 BURDEN OF PROOF DID NOT HAVE CORRECT WITNESSES - 17 TOTAL CASES LOST THAT MIGHT HAVE BEEN WON WERE 195

3 ES DISCLAIMER EACH UNEMPLOYMENT CASE IS FACT SPECIFIC. THE INTERPRETATION OF THE LAW AND ANY CHANGES IN THE LAW WILL BE DETERMINED BY THE REFEREE, LABOR AND INDUSTRIAL RELATIONS COMMISSION OR THE APPELLATE COURTS OF THE STATE BASED UPON THE ISSUES AND EVIDENCE PRESENTED.

4 WHO PAYS FOR UNEMPLOYMENT
IN MISSOURI, UNEMPLOYMENT INSURANCE IS PAID ENTIRELY BY EMPLOYERS WHO ARE DETERMINED LIABLE BASED ON MISSOURI EMPLOYMENT SECURITY STATUTES.

5 WHO CAN COLLECT UNEMPLOYMENT
A PERSON MUST HAVE WORKED IN COVERED EMPLOYMENT AND EARNED CERTAIN QUALIFYING WAGES TO BE ENTITLED TO ANY UNEMPLOYMENT INSURANCE BENEFITS. A SEPARATE RECORD IS KEPT OF EACH WORKER'S WAGES AS REPORTED BY HIS OR HER EMPLOYERS ON QUARTERLY CONTRIBUTION AND WAGE REPORTS.

6 EMPLOYER ADDRESS QUITE FREQUENTLY EMPLOYERS DO NOT RECEIVE INFORMATION REGARDING DEPUTY AND APPEAL REFEREE DECISIONS. DES ALREADY HAS A BASE PERIOD ADDRESS ON FILE FOR EMPLOYERS AND ALL BASE PERIOD CLAIMS AND NOTICES GO TO THAT ADDRESS. LAST EMPLOYER NOTICES GO TO THE ADDRESS PROVIDED BY THE CLAIMANT.

7 DIVISION OF EMPLOYMENT SECURITY
EMPLOYER ADDRESS YOU MUST NOTIFY DES IN WRITING (ON LETTERHEAD) OF ANY CHANGE OF ADDRESS FOR CLAIMS AT: DIVISION OF EMPLOYMENT SECURITY ATTN: LIABILITY UNIT P. O. BOX 59 JEFFERSON CITY, MO FOR ALL UNEMPLOYMENT INFORMATION (EXCEPT APPEALS) CALL CHERYL MEISTER AT

8 DIVISION OF EMPLOYMENT SECURITY
EMPLOYER ADDRESS YOU CAN ALSO NOTIFY THE APPEALS SECTION OF DES IN WRITING ( ON LETTERHEAD) OF THE ADDRESS YOU WANT USED SPECIFICALLY DURING THE APPEALS PROCESS. CHANGES SHOULD BE SENT TO: DIVISION OF EMPLOYMENT SECURITY ATTN: SUSAN POETTGEN P. O. Box 59 Jefferson City, MO

9 EMPLOYER ADDRESS IF YOU DO NOT RECEIVE A DIVISION COMMUNICATION, IT COULD BE CONSIDERED GOOD CAUSE FOR FILING LATE TO THE PROTEST OF THE INITIAL CLAIM OR DEPUTY DETERMINATION. YOU NEED TO INFORM THE DIVISION, VERBALLY AND IN WRITING, AS SOON AS YOU KNOW THAT YOU DID NOT RECEIVE THE NOTICE.

10 IMPORTANT TIME LIMITS If the last day of the appeal period falls on a Saturday, Sunday or legal holiday – next business day is considered timely PROTEST A CLAIM – (10 CALENDAR DAYS) ALWAYS INCLUDE EMPLOYER ACCOUNT OR FEDERAL ID NUMBER ON YOUR PROTEST APPEAL A DETERMINATION (30 CALENDAR DAYS) APPEAL REFEREE’S DECISION TO LABOR AND INDUSTRIAL RELATIONS COMMISSION (30 CALENDAR DAYS) APPEAL LABOR AND INDUSTRIAL RELATIONS COMMISSION DECISION TO COURT OF APPEALS (30 CALENDAR DAYS)

11 KNOW WHICH CLAIMS TO FIGHT
THE PURPOSE OF UNEMPLOYMENT COMPENSATION IS TO ASSIST THOSE EMPLOYEES WHO LOSE THEIR JOBS THROUGH NO FAULT OF THEIR OWN UNTIL THEY CAN SECURE NEW WORK. FOR EXAMPLE, IF YOU LAY AN EMPLOYEE OFF DUE TO LACK OF WORK OR DOWNSIZING OR CLOSING OF THE BUSINESS, THEY WILL PROBABLY RECEIVE UNEMPLOYMENT AND YOU ARE WASTING YOUR TIME AND THE DES’S TIME WHEN YOU APPEAL THESE CLAIMS.

12 OCCASIONS WHEN ACCOUNT IS ALREADY PROTECTED
YOUR ACCOUNT WON’T BE CHARGED IF THE CLAIMANT: EARNED $400 OR LESS IN YOUR EMPLOY WORKED FOR YOU 28 CALENDAR DAYS (OR LESS) AND WAS PROPERLY REPORTED AS A PROBATIONARY EMPLOYEE (P) ON THE QUARTERLY DES TAX REPORT

13 OCCASIONS WHEN ACCOUNT IS ALREADY PROTECTED
OR IF YOU WON A DISQUALIFYING ISSUE AND THE EMPLOYEE FILES ANOTHER CLAIM ON YOUR ACCOUNT THAT AFFECTS THE SAME BENEFIT YEAR. UNLESS YOU FIT INTO ONE OF THESE EXCEPTIONS, EACH TIME A CLAIMANT IS PAID UNEMPLOYMENT YOUR ACCOUNT WILL BE NEGATIVELY IMPACTED BY THAT PAYOUT. TO PROTECT YOUR ACCOUNT YOU NEED TO APPEAL THOSE CLAIMS THAT ARE NOT VALID. NOTE: REIMBURSING EMPLOYERS DO NOT ENJOY THESE SAME PROTECTIONS.

14 BASE PERIOD EMPLOYER TO BE CHARGED FOR BENEFITS YOU MUST HAVE PAID WAGES DURING THE BASE PERIOD. WAGES PAID DURING THE BASE PERIOD DETERMINE THE CLAIMANT’S WEEKLY AND MAXIMUM BENEFIT AMOUNTS. THE BASE PERIOD IS THE FIRST FOUR QUARTERS OF THE LAST FIVE COMPLETED QUARTERS PRECEDING AN INITIAL CLAIM FOR BENEFITS.

15 BASE PERIOD EMPLOYER THE LAST FIVE COMPLETED QUARTERS ARE
FOR EXAMPLE, CLAIMANT FILES CLAIM JULY 5, 2007. THE LAST FIVE COMPLETED QUARTERS ARE APR-JUN 2006 JUL-SEP OCT-DEC JAN-MAR AND APR-JUN 2007. THE FIRST FOUR QUARTERS THAT WILL BE USED TO DETERMINE BENEFITS ARE: APR-JUN JUL-SEP OCT-DEC AND JAN-MAR 2007.

16 KNOW WHICH CLAIMS TO FIGHT
FIGHT CLAIMS IF YOU BELIEVE THE CLAIMANT: QUIT WITHOUT GOOD CAUSE ATTRIBUTABLE TO THE WORK OR THE EMPLOYER FIRED FOR MISCONDUCT CONNECTED TO THE WORK REFUSED WORK OR NOT AVAILABLE FOR WORK UNABLE TO WORK – FOR EXAMPLE, PERSONAL ILLNESS OR GOING TO SCHOOL. RECEIVING EMPLOYER FUNDED PENSION, VACATION OR ‘WARN’ PAY, OR UNDISCLOSED WAGES.

17 PROTESTING A CLAIM IF YOU PLAN TO PROTEST A CLAIM HAVE GOOD DOCUMENTATION OF THE EVENT THAT CAUSED THE SEPARATION OF THE EMPLOYMENT. REMEMBER YOU ONLY HAVE 10 DAYS TO PROTEST A CLAIM S0 FILE PAPERWORK IMMEDIATELY. YOU SHOULD WRITE YOUR PROTEST INFORMATION ON THE BACK OF THE NOTICE TO BASE PERIOD OR LAST EMPLOYER OR RENEWAL FORM AND MAIL AND/OR FAX TO THE ADDRESS AND/OR FAX NUMBER ON THE TOP RIGHT HAND CORNER. BE SURE TO KEEP COPY THAT YOU DATE AND SIGN VERIFYING WHEN YOU RESPONDED, OR BETTER YET COPY OF FAX RECORD SHOWING DATE OR PROOF OF MAILING.

18 PROTESTING A CLAIM WHEN YOU FILE YOUR PROTEST, LIST EACH AND EVERY ISSUE RELATED TO THE UNEMPLOYMENT CLAIM. ISSUES MUST BE ADDRESSED IN THE PROTEST TO BE CONSIDERED. SEND IN ALL DATA TO BACK UP YOUR CLAIM AS TO WHY THE CLAIMANT SHOULD BE DENIED UNEMPLOYMENT. ALSO NUMBER THE PAGES OF THE DOCUMENTATION (OR EXHIBITS) … THIS WILL ASSIST THE DEPUTY IN MAKING A DECISION AND MAY REDUCE THE CHANCES THAT THE CLAIMANT WILL APPEAL THE DECISION.

19 PROTESTING A CLAIM EVEN IF YOU DON’T OBJECT TO A CLAIMANT’S RECEIPT OF BENEFITS, PROVIDE THE DATES AND WAGE INFORMATION REQUESTED AND REQUEST NOTICE IF THE CLAIMANT RENEWS THE CLAIM DURING THE YEAR. PARENT AND AFFILIATE COMPANIES - BE VERY CAREFUL THAT RESPONSES COME FROM THE APPROPRIATE ENTITY AND ACCOUNT NUMBER.

20 PROTESTING A CLAIM YOU MAY RECEIVE A CALL FROM A DEPUTY ASKING YOU FOR ADDITIONAL INFORMATION. BE SURE TO ANSWER ALL QUESTIONS TO THE BEST OF YOUR ABILITY. REMEMBER THE DEPUTY MAY HAVE ALREADY TALKED WITH THE CLAIMANT WHO HAS GIVEN THEM A DIFFERENT REASON FOR NO LONGER BEING EMPLOYED.

21 WHEN A DEPUTY AWARDS BENEFITS TO A CLAIMANT
IF YOU RECEIVE AN UNFAVORABLE DETERMINATION FROM A DEPUTY YOU HAVE THE RIGHT TO APPEAL THAT DETERMINATION IF YOU FILED A TIMELY PROTEST. THE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DECISION AND SENT TO: DIVISION OF EMPLOYMENT SECURITY ATTN: APPEALS SECTION P. O. Box 59 Jefferson City, MO AND BE SURE TO PHYSICALLY SIGN IT!

22 WHEN A DEPUTY AWARDS BENEFITS TO A CLAIMANT
WHEN YOU FILE YOUR APPEAL ADVISE DES OF ANY DATES FOR THE NEXT COUPLE OF MONTHS THAT YOU, OR ANY WITNESSES YOU PLAN TO CALL, ARE NOT AVAILABLE FOR A HEARING. THIS WILL AVOID HAVING TO POSTPONE A HEARING.

23 NOTICE OF TELEPHONE HEARING
DES WILL SEND YOU A NOTICE OF THE TELEPHONE HEARING. IF FOR SOME REASON THE HEARING DATE WILL NOT WORK FOR YOU, YOU MUST CALL DES AND REQUEST A POSTPONEMENT AS SOON AS POSSIBLE PRIOR TO THE HEARING. CURRENTLY THE EMPLOYER MUST HAVE GOOD CAUSE TO CHANGE THE HEARING DATE. GOOD CAUSE IS DETERMINED BY THE REFEREE. IT MUST BE A CIRCUMSTANCE BEYOND YOUR CONTROL AND CAUSE UNDUE HARDSHIP.

24 NOTICE OF TELEPHONE HEARING
IF YOU MISS THE HEARING THE APPEALS REFEREE WILL EITHER MAKE A DECISION BASED SOLELY ON EVIDENCE FROM THE CLAIMANT IF HE OR SHE PARTICIPATED AND WAS THE PARTY WHO FILED THE APPEAL, OR DISMISS THE APPEAL IF IT WAS THE EMPLOYER’S APPEAL. EITHER EMPLOYER OR CLAIMANT MAY REQUEST “RECONSIDERATION” FOR A MISSED HEARING.

25 NOTICE OF TELEPHONE HEARING
IF RECONSIDERATION IS NOT GRANTED, THE DIVISION WILL SEND THE MATTER TO THE COMMISSION. THE COMMISSION HAS THE POWER TO REMAND THE MATTER FOR ANOTHER HEARING.

26 NOTICE OF TELEPHONE HEARING
ALSO WHEN YOU RECEIVE THE NOTICE OF TELEPHONE HEARING BE SURE TO READ ALL OF THE INSTRUCTIONS ON THE NOTICE AND NOTE THE FOLLOWING: MOST IMPORTANT – CALL IN THE TELEPHONE NUMBER WHERE YOU CAN BE REACHED FOR THE HEARING. NUMBER YOU CALL IS

27 CELL PHONES YOU MAY CALL IN A CELL PHONE NUMBER FOR THE HEARING. THIS COULD BE ESPECIALLY IMPORTANT IF YOU ARE A SMALL BUSINESS OWNER AND HAVE ONLY ONE PHONE LINE INTO THE BUSINESS. HOWEVER, KEEP IN MIND THAT IF YOU ARE DISCONNECTED THE REFEREE MAY NOT CALL YOU BACK.

28 NOTICE OF TELEPHONE HEARING
WHEN YOU CALL IN YOUR TELEPHONE NUMBER ALSO PROVIDE THE NAMES AND TELEPHONE NUMBERS OF THE COMPANY REPRESENTATIVE, AND ANY WITNESSES WHO HAVE AGREED TO PARTICIPATE IN THE HEARING AND ESPECIALLY THOSE WHO HAVE DIRECT KNOWLEDGE OF THE EVENT. FOR EXAMPLE, THE CLAIMANT’S SUPERVISOR WHO HAS FIRST-HAND TESTIMONY OF WHAT HAPPENED AND WHY THE CLAIMANT IS NO LONGER EMPLOYED.

29 NOTICE OF TELEPHONE HEARING
REMEMBER – ANY EMPLOYEE CAN TESTIFY BUT TO “REPRESENT” THE COMPANY YOU MUST BE A FULL TIME SUPERVISORY EMPLOYEE, MANAGER, OR CORPORATE OFFICER OF THE EMPLOYING COMPANY. IF THERE IS A PARENT COMPANY BE SURE TO HAVE SOMEONE FROM THE ENTITY WHICH FILED THE PROTEST AND APPEAL PARTICIPATE. IF YOU LIST SOMEONE AS AN OBSERVER THEY CAN ONLY LISTEN AND CANNOT OFFER TESTIMONY OR ANSWER ANY QUESTIONS DURING THE HEARING.

30 NOTICE OF TELEPHONE HEARING
PRIOR TO YOUR TELEPHONE HEARING YOU WILL RECEIVE A “PRIMARY PACKET” FROM DES. THE PACKET CONTAINS INFORMATION AND DOCUMENTS SUBMITTED BY THE EMPLOYER AND THE CLAIMANT, AND INFORMATION USED BY THE DEPUTY TO MAKE THE INITIAL DETERMINATION. AT THE HEARING THE REFEREE WILL HAVE THE PACKET AND WILL ASK BOTH PARTIES IF THEY HAVE RECEIVED IT. IF THERE IS ANY DOCUMENT IN THE PACKET THAT IS IMPORTANT TO YOUR CASE BE SURE TO BRING IT TO THE ATTENTION OF THE REFEREE BY REFERRING TO THE PAGE NUMBER AND HOW IT APPLIES TO YOUR CASE.

31 NOTICE OF TELEPHONE HEARING
PRIOR TO THE HEARING, BUT AFTER RECEIVING NOTICE OF THE HEARING, YOU MUST SEND TO BOTH THE CLAIMANT AND THE REFEREE ANY DOCUMENTS YOU WANT INTRODUCED AS EVIDENCE THAT ARE NOT PART OF THE PRIMARY PACKET. BE SURE TO HAVE DOCUMENTATION THAT THESE DOCUMENTS WERE SENT PRIOR TO THE HEARING. TRACKING INFORMATION THAT CAN BE PROVIDED TO THE REFEREE SHOWS GOOD FAITH EFFORT IN GETTING THE INFORMATION TO THE CLAIMANT.

32 POSTPONED OR CONTINUED TELEPHONE HEARING
IF YOUR HEARING WAS POSTPONED AND HAS BEEN RESCHEDULED, OR THE HEARING HAS BEEN CONTINUED YOU MUST: CALL IN YOUR TELEPHONE NUMBER AGAIN. FAILURE TO DO SO MEANS YOU WILL NOT BE CALLED FOR THE HEARING. PROVIDE WITNESS NAMES AND TELEPHONE NUMBERS EACH TIME. IF A HEARING IS RESCHEDULED YOU MUST RESEND ANY DOCUMENTS YOU WANT INTRODUCED INTO EVIDENCE. IF THE HEARING IS BEGUN AND THEN CONTINUED, YOU DO NOT HAVE TO RESEND THE DOCUMENTS.

33 IN PERSON HEARING IF A CLAIMANT REQUESTS AN IN-PERSON HEARING THEN THE EMPLOYER MUST ALSO APPEAR IN-PERSON. THE EXCEPTION IS IF THE TRAVEL FOR THE EMPLOYER EXCEEDS 50 MILES, THEN THE EMPLOYER CAN PARTICIPATE BY TELEPHONE IF SO DESIRED. CALL THE APPEALS SECTION TO CLARIFY YOUR OPTIONS. YOU MAY WANT AN IN-PERSON HEARING IF FOR EXAMPLE, YOU HAVE A VIDEO TAPE AS AN EXHIBIT.

34 THE TELEPHONE HEARING REMEMBER THE TELEPHONE HEARING IS CONDUCTED THE SAME AS IF IT WERE A COURT ROOM. THE APPEALS REFEREE IS THE JUDGE AND JURY AND YOU ARE STATING YOUR CASE. ALTHOUGH LESS STRICT, RULES OF EVIDENCE APPLY. EMPLOYERS DO HAVE THE RIGHT TO BE REPRESENTED BY ATTORNEYS WHO MUST ENTER THEIR APPEARANCES. IN MISSOURI THE COMPANY CANNOT BE REPRESENTED BY AN ACTUARY.

35 THE TELEPHONE HEARING BE IMMEDIATELY AVAILABLE AT THE TELEPHONE NUMBER GIVEN. THE REFEREE WILL ONLY TRY THE NUMBER TWICE AND IF UNABLE TO REACH YOU THE HEARING WILL EITHER CONTINUE WITHOUT YOUR INPUT OR BE DISMISSED. PRESENTING INFORMATION IN AN ORDERLY, CONCISE, AND PROFESSIONAL MANNER MAKES A MORE CREDIBLE PRESENTATION BY REPRESENTATIVES AND/OR WITNESSES

36 THE TELEPHONE HEARING MOST REFEREES WILL ASK THE FOLLOWING QUESTIONS:
Is your testimony based on personal knowledge, business records or both? Are these records prepared in the regular course of the business? Are these records kept on all employees? Were the entries in the records made at or about the time the events occurred? Did the person who created the records have direct knowledge of the events?

37 THE TELEPHONE HEARING MOST REFEREES WILL ASK THE FOLLOWING QUESTIONS:
DATE OF HIRE RATE OF PAY, FULL OR PART-TIME DAYS AND HOURS WORKED NAME OF SUPERVISOR WHETHER CLAIMANT WAS A MEMBER OF A UNION POSITION HELD, LAST DAY WORKED DATE OF DISCHARGE OR QUIT IF DISCHARGED, WHY THEY WERE TERMINATED, BY WHOM AND HOW IF A QUIT, REASON THEY GAVE

38 THE TELEPHONE HEARING STATE THE FACTS OF YOUR CASE AND PROVIDE ALL INFORMATION RELATED TO THE UNEMPLOYMENT CLAIM. PROVIDE ALL DATES RELEVANT TO THE ISSUES. TELL THE REFEREE THAT YOU WANT ALL DOCUMENTS (EXHIBITS) THAT YOU HAVE SUBMITTED OFFERED INTO EVIDENCE. IF THE REFEREE DOES NOT MARK YOUR DOCUMENTS AND OFFICIALLY “RECEIVE” THEM INTO THE RECORD, THEIR CONTENTS WILL NOT BE CONSIDERED.

39 THE TELEPHONE HEARING IF YOU PLAN TO CALL ANY WITNESSES BE SURE TO STATE WHAT INFORMATION THEY CAN PROVIDE THAT IS DIFFERENT FROM YOURS, SUCH AS A SUPERVISOR WHO HAS FIRST-HAND KNOWLEDGE OF AN INCIDENT. IF THE WITNESS WILL PROVIDE ONLY THE SAME INFORMATION THAT YOU HAVE ALREADY PROVIDED, THEY WILL IN MOST CASES NOT BE ALLOWED TO TESTIFY. AFTER THE WITNESS TESTIFIES, THE EMPLOYER REPRESENTATIVE MAY ASK THE WITNESS QUESTIONS. THIS IS AN OPPORTUNITY TO CLARIFY ISSUES OR GET ISSUES ON THE RECORD THAT THE WITNESS MAY HAVE FORGOTTEN.

40 THE TELEPHONE HEARING HEARSAY STATEMENTS (WRITTEN OR ORAL):
UNDER RULES OF EVIDENCE HEARSAY OR WRITTEN STATEMENTS MAY NOT BE ADMITTED INTO EVIDENCE BECAUSE THE OTHER PARTY CANNOT CROSS EXAMINE THE WITNESS OR WRITER OF THE STATEMENTS, WHICH BOTH THE CLAIMANT AND THE EMPLOYER HAVE A RIGHT TO DO. THUS THESE STATEMENTS CAN BE OBJECTED TO BY EITHER PARTY AND MAY NOT BE ADMITTED INTO EVIDENCE.

41 THE TELEPHONE HEARING HEARSAY STATEMENTS (WRITTEN OR ORAL):
IT IS ALWAYS BEST TO HAVE THE PERSON WHO WROTE ANY STATEMENT ABOUT AN INCIDENT APPEAR AT THE HEARING AS ONE OF THE WITNESSES WHO CAN TESTIFY FIRST HAND ABOUT THE STATEMENT. IF THAT IS NOT POSSIBLE THEN IN ORDER TO ADMIT WRITTEN RECORDS INTO EVIDENCE THE EMPLOYER MUST ESTABLISH THAT:

42 WRITTEN STATEMENTS AND RECORDS
THE DOCUMENTS ARE RELIABLE BUSINESS RECORDS. THEY ARE KEPT IN THE NORMAL COURSE OF BUSINESS ON ALL EMPLOYEES. THE RECORD WAS CREATED CLOSE IN TIME TO THE EVENTS REFLECTED. AND THE RECORD WAS MADE BY A PERSON OR PERSONS WITH DIRECT KNOWLEDGE OF THE EVENTS.

43 WRITTEN STATEMENTS AND RECORDS
SUCH DOCUMENTS MAY THEN BE TESTIFIED FROM OR OFFERED AS EXHIBITS SINCE THEY ARE BUSINESS RECORDS AND ARE AN EXCEPTION TO THE HEARSAY RULE. IF YOU WISH TO ADMIT INTO EVIDENCE SOMETHING TOLD TO YOU BY A SUPERVISOR OR OTHER WITNESS WHO CANNOT TESTIFY FOR WHATEVER REASON, THEN BE SURE TO DOCUMENT TIME, PLACE, WHAT WAS SAID, BY WHOM AND HOW APPLICABLE AND ESTABLISH THAT IT IS A RELIABLE BUSINESS RECORD.

44 THE TELEPHONE HEARING WHILE THE CLAIMANT IS TESTIFYING LISTEN CAREFULLY AND JOT DOWN ANY DISCREPANCIES YOU HEAR. AT THE END OF THE TESTIMONY YOU MAY ASK THE CLAIMANT QUESTIONS IF YOU QUALIFY AS AN EMPLOYER REPRESENTATIVE – BUT THEY MUST BE IN THE FORM OF A QUESTION.

45 THE TELEPHONE HEARING AT THE END OF THE HEARING YOU WILL BE GIVEN ONE MORE OPPORTUNITY TO PROVIDE NEW EVIDENCE. THIS MIGHT BE A RESPONSE TO SOMETHING THE CLAIMANT SAID IN HIS/HER TESTIMONY. DON’T ARGUE WITH THE CLAIMANT, JUST PRESENT THE FACTS IN A PROFESSIONAL MANNER.

46 A QUIT BY A CLAIMANT WHENEVER CLAIMANTS QUIT JOBS THEY ARE NOT QUALIFIED FOR UNEMPLOYMENT UNLESS THEY CAN PROVE THEY QUIT FOR A CAUSE ATTRIBUTABLE TO THE EMPLOYER. IN THIS CASE THE BURDEN OF PROVING CAUSE RESTS WITH THE CLAIMANT THROUGH COMPETENT AND SUBSTANTIAL EVIDENCE.

47 DISCHARGE FOR MISCONDUCT
ANY TIME EMPLOYERS DISCHARGE FOR MISCONDUCT THEY HAVE THE BURDEN OF PROVING SUCH MISCONDUCT BY COMPETENT AND SUBSTANTIAL EVIDENCE. THE CLAIMANT DOES NOT HAVE THE BURDEN OF PROVING THE ABSENCE OF MISCONDUCT. THE BETTER THE EVIDENCE YOU PRESENT THE BETTER YOUR CHANCES OF WINNING.

48 MISCONDUCT - ATTENDANCE
THE NUMBER ONE REASON EMPLOYEES LOSE THEIR JOBS IS ATTENDANCE ISSUES. WHEN REPLYING TO THE INITIAL UNEMPLOYMENT CLAIM STATE (IF TRUE): DATES OF ABSENCES AND REASONS. WHETHER EMPLOYEE PROPERLY REPORTED EACH INCIDENT.

49 MISCONDUCT - ATTENDANCE
IF YOU HAVE A “NO FAULT” ATTENDANCE POLICY BE SURE TO STATE THAT FACT. ATTACH A COPY OF THE ATTENDANCE POLICY. ATTACH DOCUMENTATION THAT SHOWS THE EMPLOYEE HAD KNOWLEDGE OF THE ATTENDANCE POLICY AND UNDERSTOOD THE CONSEQUENCES OF VIOLATING THE POLICY. ATTACH COPIES OF ANY ATTENDANCE COUNSELING AND/OR WARNING SESSIONS.

50 MISCONDUCT - ATTENDANCE
IT IS ALWAYS BEST IF THE EMPLOYEE HAS SIGNED THE COUNSELING SESSIONS WHICH SHOW HE/SHE UNDERSTOOD THE COUNSELING EVEN THOUGH HE/SHE MAY NOT AGREE WITH ITS CONTENTS. HOWEVER, SOME DO REFUSE TO DO SO. IF THIS HAPPENS SIMPLY STATE ON THE DOCUMENT THAT THE EMPLOYEE “REFUSED TO SIGN” AND HAVE A WITNESS SIGN AND DATE THE DOCUMENT.

51 MISCONDUCT - ATTENDANCE
IF POSSIBLE TRY AND PICK THE RIGHT TIME TO DISCHARGE. MOST REFEREES STILL TEND TO FOCUS ON THE LAST INCIDENT ALONE. INSUBORDINATION, A NO-CALL, NO-SHOW OR A POOR EXCUSE FOR BEING ABSENT IS MORE LIKELY TO RESULT IN A DENIAL OF BENEFITS.

52 MISCONDUCT - ATTENDANCE
IN 2006, THE LEGISLATURE AMENDED DEALING SPECIFICALLY WITH ATTENDANCE/TARDINESS. AS AMENDED, THE STATUTE NOW PROVIDES THAT (1) IF A CLAIMANT WAS DISCHARGED AS THE RESULT OF A VIOLATION OF THE EMPLOYER’S ATTENDANCE POLICY AND (2) THE CLAIMANT HAD KNOWLEDGE OF THE POLICY BEFORE ANY OF THE OCCURRENCES UPON WHICH THE DISCHARGE WAS BASED THEN

53 MISCONDUCT - ATTENDANCE
“ABSENTEEISM OR TARDINESS MAY CONSTITUTE A REBUTTABLE PRESUMPTION OF MISCONDUCT, REGARDLESS OF WHETHER THE LAST INCIDENT ALONE CONSTITUTES MISCONDUCT….” THE AMENDMENT DOES LITTLE TO HELP EMPLOYERS CONCERNING ATTENDANCE/TARDINESS ISSUE.

54 MISCONDUCT - ATTENDANCE
USE OF WORD “MAY” INSTEAD OF SHALL MEANS DEPUTIES AND APPEALS TRIBUNALS CAN DO WHATEVER THEY WANT – AND THEY WILL PROBABLY STILL BE FOCUSING ON INTENT. REBUTTABLE PRESUMPTION, EVEN IF RAISED, IS PROBABLY DEFEATED AS SOON AS CLAIMANT PARTICIPATES IN HEARING TO EXPLAIN REASONS FOR BEING ABSENT/TARDY.

55 MISCONDUCT – DRUGS & ALCOHOL
THERE ARE TWO STATUTES WHICH DEAL WITH DRUGS AND ALCOHOL. THE OLDER STATUTE IS THIS IS THE GENERAL MISCONDUCT STATUTE. UNTIL VERY RECENTLY, CASE LAW INDICATED THAT TO PROVE MISCONDUCT FOR DRUGS OR ALCOHOL THE EMPLOYER MUST SHOW JOB IMPAIRMENT. IN JUNE 2006 THE COURT OF APPEALS NEGATED THAT REQUIREMENT. CONSEQUENTLY, UNDER THE GENERAL MISCONDUCT STATUTE, EMPLOYERS MUST NOW PROVE:

56 MISCONDUCT – DRUGS & ALCOHOL
THAT CLAIMANT KNEW ABOUT EMPLOYER’S DRUG/ALCOHOL POLICY; THAT THE POLICY IS REASONABLE (WORK SAFETY CONCERNS, PRODUCTIVITY, ETC.); AND THAT CLAIMANT KNOWINGLY VIOLATED THE POLICY. AN EMPLOYER CAN ESTABLISH THE VIOLATION BY CLAIMANT’S ADMISSION, BY TESTIMONY ABOUT OBSERVABLE IMPAIRMENT, AND/OR BY PROOF OF THE RELIABILITY AND ACCURACY OF THE COLLECTION PROCESS AND POSITIVE TEST RESULT.

57 MISCONDUCT – DRUGS & ALCOHOL
DOCUMENT BY TIME AND PLACE WHAT YOU OBSERVED SUCH AS CLAIMANT WAS SLURRING HIS/HER WORDS, WALKED WITH AN UNSTEADY GAIT, SMELLED OF ALCOHOL, ETC. IF POLICY PROVIDES, AND WITH EMPLOYEE’S CONSENT, THEN SEND CLAIMANT FOR A DRUG/ALCOHOL TEST. MAKE SURE THE LAB IS D.O.T. CERTIFIED AND USE PROPER CHAIN OF CUSTODY. IT IS ALSO HELPFUL IF YOUR POLICY STATES THAT REFUSAL TO TAKE A DRUG/ALCOHOL TEST “MAY” RESULT IN TERMINATION.

58 MISCONDUCT – DRUGS & ALCOHOL
SUBMIT RESULTS OF THE TEST AS AN EXHIBIT AT THE HEARING, AND HAVE THE MEDICAL REVIEW OFFICER FROM THE LAB TESTIFY AS A WITNESS CONCERNING THE ACCURACY AND RELIABILITY OF THE COLLECTION PROCESS (THE CHAIN-OF-CUSTODY), THE LABORATORY EQUIPMENT USED, AND THE TEST RESULT. YOU HAVE NOW DRAMATICALLY IMPROVED YOUR CHANCES OF DISQUALIFYING THE CLAIMANT.

59 MISCONDUCT – DRUGS & ALCOHOL
THE LEGISLATURE IN 2004 PASSED A NEW PROVISION: IT APPLIES TO DISCHARGES BETWEEN 1/1/05 AND 9/30/06. EMPLOYERS MUST HAVE COMPLIED WITH ALL OF THE REQUIREMENTS OF THIS STATUTE IN ORDER TO USE IT. THE REQUIREMENTS WERE: THE CLAIMANT MUST HAVE BEEN AT WORK WITH A DETECTIBLE AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE IN HIS/HER BODY.

60 MISCONDUCT – DRUGS & ALCOHOL
THE EMPLOYER MUST HAVE A WRITTEN WORKPLACE POLICY DEALING WITH DRUG AND ALCOHOL USE. THE EMPLOYER MUST HAVE NOTIFIED ITS EMPLOYEES OF THE WRITTEN POLICY BY ONE OF THE FOLLOWING MEANS: BY CONSPICUOUSLY POSTING IT IN THE WORKPLACE. BY SETTING IT OUT IN A WRITTEN HANDBOOK OR PERSONNEL POLICY; OR

61 MISCONDUCT – DRUGS & ALCOHOL
BY INCLUDING IT IN THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT. THE EMPLOYER’S POLICY MUST HAVE SAID THAT A POSITIVE TEST RESULT SHALL BE DEEMED MISCONDUCT AND COULD RESULT IN SUSPENSION OR DISCHARGE. IF THE POLICY WAS INSTITUTED AFTER 1/1/05, THE EMPLOYER MUST HAVE GIVEN AT LEAST A 60-DAY, ONE-TIME GENERAL NOTICE (PRESUMABLY NOT TO EACH NEW EMPLOYEE) THAT A DRUG/ALCOHOL POLICY WAS BEING INSTITUTED.

62 MISCONDUCT – DRUGS & ALCOHOL
THE EMPLOYER MUST HAVE GIVEN THE CLAIMANT AT LEAST THE RIGHT, IF REQUESTED, TO HAVE A CONFIRMATION TEST. THE CONFIRMATION TEST MUST HAVE BEEN DONE BY A DIFFERENT D.O.T CERTIFIED LABORATORY USING DIFFERENT SCIENTIFIC PRINCIPLES. THE STATUTE IS SILENT AS TO WHETHER THE EMPLOYER MUST HAVE NOTIFIED THE CLAIMANT OF THIS RIGHT. IF THE CONFIRMATION TEST WAS POSITIVE THE EMPLOYEE WOULD HAVE PAID THE COST OF THE TEST.

63 MISCONDUCT – DRUGS & ALCOHOL
FOR THE EMPLOYER TO COLLECT AND TEST A SAMPLE IT MUST HAVE HAD SUFFICIENT CAUSE TO SUSPECT USE (WHICH COULD INCLUDE TESTING AFTER AN ACCIDENT) OR THE WRITTEN POLICY MUST HAVE STATED THERE WOULD BE RANDOM TESTING.

64 MISCONDUCT – DRUGS & ALCOHOL
THE EMPLOYER MUST HAVE SHOWN THAT THE SPECIMEN COLLECTION, TESTING, AND CHAIN-OF-CUSTODY PROCEDURES CONFORM EITHER TO: THE PROVISIONS AND PROCEDURES OUTLINED IN AN APPLICABLE COLLECTIVE BARGAINING AGREEMENT OR U.S.D.O.T. RULES FOR WORKPLACE DRUG AND ALCOHOL TESTING (49jC.F.R.,PART40), AS WELL AS ANY OF ITS REGULATIONS CONCERNING CHAIN-OF-CUSTODY PROCEDURES.

65 MISCONDUCT – DRUGS & ALCOHOL
IF THE EMPLOYER INDICATES THAT THE TEST WAS PERFORMED BY A U.S.D.O.T. CERTIFIED LABORATORY, THE REFEREE MUST INCLUDE THE TEST RESULTS AND LABORATORY’S TRIAL PACKET IN THE HEARING RECORD AND MUST CONSIDER THE RESULTS AND PACKET AS EVIDENCE. THE STATUTE DOES NOT TAKE AWAY THE REFEREE’S DISCRETION, THOUGH, AS TO HOW MUCH WEIGHT TO GIVE THAT EVIDENCE.

66 DRUGS/ALCOHOL PENALTY
IF A DETECTIBLE AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE IN VIOLATION OF KNOWN COMPANY POLICY IS MISCONDUCT UNDER , WAGE CREDITS WILL BE CANCELLED FOR POSITIVE TEST. CANNABIS=50NG/ML; ALCOHOL=.08%

67 DRUGS/ALCOHOL THE LEGISLATURE IN 2006 AMENDED CONSEQUENTLY, WITH RESPECT TO DISCHARGES THAT OCCUR AFTER 10/01/06: THE LABORATORY USED SHOULD BE CERTIFIED BY THE US DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”) OR ANY ORGANIZATION THAT MEETS THE MINIMUM STANDARDS OF HHS (GOOD LUCK PROVING THAT THE ALTERNATIVE ORGANIZATION’S QUALIFICATIONS ARE THE SAME).

68 DRUGS/ALCOHOL EMPLOYERS POLICIES NO LONGER HAVE TO SAY THAT A POSITIVE TEST RESULT SHALL BE DEEMED MISCONDUCT. NOW, POLICY JUST HAS TO SAY THAT A POSITIVE TEST RESULT MAY CAUSE SUSPENSION OR TERMINATION. TEST RESULTS ARE ADMISSIBLE IF EMPLOYER’S POLICY CLEARLY STATES THAT EMPLOYEES ARE SUBJECT TO RANDOM, PREEMPLOYMENT, REASONABLE SUSPICION, OR POST-ACCIDENT TESTING.

69 DRUGS/ALCOHOL ANY POSITIVE RESULT FROM A TEST THAT CONFORMS TO THE STATUTORY REQUIREMENTS IS DEEMED MISCONDUCT – NO MINIMUM LEVELS. EVEN PREEMPLOYMENT TEST THAT IS POSITIVE IS MISCONDUCT SO LONG AS CLAIMANT WAS INFORMED OF THE TEST REQUIREMENT PRIOR TO TAKING THE TEST.

70 DIFATTA-WHEATON v. DOLPHIN CAPITAL CORP.
SIGNIFICANT CASE DIFATTA-WHEATON v. DOLPHIN CAPITAL CORP. SUBSTANTIALLY CHANGES THE WAY COURTS HAVE ANALYZED LEAVES OF ABSENCE DUE TO PERSONAL ILLNESS. COURTS WILL USUALLY PRESUME THAT EMPLOYMENT RELATIONSHIP IS NOT SEVERED, EVEN THOUGH EMPLOYER DOES NOT GUARANTEE TO HOLD AN EMPLOYEE’S JOB DURING EXTENDED PERIODS OF ABSENCE. CONSEQUENTLY, WHEN THE EMPLOYEE IS READY TO RETURN TO WORK AND EMPLOYER DOES NOT ALLOW IT, EMPLOYER IS DEEMED TO HAVE DISCHARGED THE EMPLOYEE.

71 SIGNIFICANT CASE POSSIBLE EXCEPTIONS TO DISCHARGE
THE CLAIMANT EXPRESSLY SAYS QUITTING. EMPLOYER EXPRESSLY TELLS CLAIMANT UP FRONT THAT IT CONSIDERS THE EMPLOYEE TO BE QUITTING. CLAIMANT KNOWINGLY VIOLATES A MANDATED CALL-IN POLICY THAT SAYS CONSECUTIVE DAYS OF NO CALL NO SHOW WILL BE DEEMED A QUIT. AN EMPLOYER GIVES A CLAIMANT CONDITIONS TO SATISFY IN ORDER TO MAINTAIN POSITION (LIKE CONTACTING EMPLOYER WITHIN SET PERIOD AFTER EACH DOCTOR APPOINTMENT), AND CLAIMANT DOES NOT SATISFY CONDITIONS.

72 TEMPORARY EMPLOYEES TEMPORARY EMPLOYEES OF STAFFING FIRMS WILL BE FOUND TO HAVE QUIT: IF THEY DO NOT CONTACT THE FIRM PRIOR TO FILING FOR BENEFITS UPON COMPLETION OF ANY ASSIGNMENT; PROVIDING THEY HAVE BEEN CLEARLY ADVISED TO DO SO AND ADVISED THAT FAILURE TO DO SO MAY RESULT IN A DENIAL OF BENEFITS. INCLUDE THIS INFORMATION WITH YOUR INITIAL PROTEST AND SEND IN THIS DOCUMENTATION AS AN EXHIBIT TO ANY SUBSEQUENT HEARING.

73 APPEALING THE REFEREE’S DECISION
IF YOU RECEIVE AN UNFAVORABLE DECISION FROM THE APPEALS REFEREE YOU MAY APPEAL TO THE LABOR AND INDUSTRIAL RELATIONS COMMISSION. HOW TO DO THIS IS ON THE LETTER OF TRANSMITTAL YOU RECEIVE FROM THE APPEALS REFEREE. REMEMBER – YOU ONLY HAVE 30 DAYS FROM THE DATE OF THE REFEREE’S DECISION TO APPEAL TO THE COMMISSION. THERE IS NO “GOOD CAUSE” FOR A LATE APPEAL TO THE COMMISSION.

74 APPEALING THE REFEREE’S DECISION
THE COMMISSION WILL NOT CONDUCT A NEW HEARING. WE CAN ONLY REVIEW THE TRANSCRIPT (INCLUDING EXHIBITS) PRESENTED AT THE TELEPHONE HEARING. THE ONLY TIME THE COMMISSION CAN TAKE ADDITIONAL EVIDENCE IS IF THERE IS NEW INFORMATION THAT COULD NOT HAVE BEEN AVAILABLE AND PRESENTED AT THE TIME OF THE HEARING. (THIS IS A VERY RARE OCCURRENCE AND MUST BE MADE THROUGH A LICENSED ATTORNEY.)

75 DECISION OF THE COMMISSION
IF YOU DO NOT AGREE WITH THE DECISION ISSUED BY THE COMMISSION YOU MAY APPEAL TO THE MISSOURI COURT OF APPEALS. INSTRUCTIONS ON HOW TO DO THAT IS ON THE LETTER YOU RECEIVE FROM THE COMMISSION. A SPECIAL FORM (FORM 8-B) MUST BE USED. YOU HAVE 30 DAYS TO APPEAL TO THE COURT AND STATE WHY THE COMMISSION ERRED. THE COURT REVIEWS THE HEARING TRANSCRIPT AND EXHIBITS AND THE DECISION OF THE COMMISSION.

76 BENEFITS CONTACTS JANET LEPPER, CHIEF OF UI PROGRAMS –
RESPONSIBLE FOR MANAGEMENT OF REGIONAL CLAIMS CENTERS AND DES POLICY INSTRUCTIONS Phone: (573) CAROL LUECKE, CHIEF OF BENEFITS – PROCESSING DES CLAIMS, SHARED WORK, AND WORK SEARCH WAIVERS. Phone: (573) Benefit Charge Statement questions

77 APPEALS CONTACTS RON MILLER, CHIEF APPEALS REFEREE –
QUESTIONS CONCERNING APPEALS DECISIONS, PROCEDURES, REGULATIONS OR OTHER APPEALS-RELATED ISSUES: PHONE: (573)  JIM SKAIN, SUPERVISOR – QUESTIONS CONCERNING APPEALS DECISIONS, PROCEDURES, REGULATIONS OR OTHER APPEALS-RELATED ISSUES

78 TAX CONTACTS CINDY GUTHRIE, CHIEF OF THE EMPLOYER CONTRIBUTION SECTION
Phone: (573) CHERYL MEISTER, MANAGER OF THE LIABILITY UNIT – REGARDING QUESTIONS CONCERNING NEW ACCOUNTS, STATUS CHANGES AND INDEPENDENT CONTRACTOR DETERMINATION ISSUES. Phone: (573)

79 MULTIPLE SERVICES/ INFORMATION AVAILABLE:
ON-LINE SERVICE MULTIPLE SERVICES/ INFORMATION AVAILABLE: OR

80 QUESTIONS?


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