Presentation on theme: "Unemployment Insurance"— Presentation transcript:
1 Unemployment Insurance September 13, 2012Massachusetts Continuing Legal EducationMassachusetts Law Reform Institute&Greater Boston Legal ServicesBasic Benefits Training
2 What Is Unemployment Insurance? Greater Boston Legal Services4/6/2017What Is Unemployment Insurance?Non-means tested cash assistance program established by Congress in 1935Law and policies set generally by federal governmentStates determine benefit levels, duration & disqualificationEmployers are source of funding for UI benefits, but only taxed on 1st $14,000 (Solvency Fund)UI is first line of defense in a recessionSection 74: the statute shall be liberally construed in favor of the worker and the worker’s familyAn Overview of Unemployment Insurance
3 Resources to Understand Unemployment State law: G.L. c. 151ADUA regs: 430 CMR; 801 CMR sec. 1.02DUA policies: Service Representatives HandbookMass. Unemployment Advocacy Guide ( )DUA web site:Board of Review Decisions:DOL website: workforcesecurity.doleta.gov/unemploy/Legal Services Website:Other good resources: Thomas A. Mauet, Trial TechniquesRobert Schwartz, Your Rights on the Job, 5th Ed.
4 Funding Unemployment Insurance A tax is levied on every employer covered by the law.The tax rate is based on the taxable wage base, the # of employees, the # separated from employment in the past year, and tax schedule.Nonprofits and governmental employers can self-insure.
5 The Administration of Unemployment & Job Training Programs
6 Eligibility for Unemployment UI eligibility if:totally or partially unemployedseparated from employment through no faultearned at least $3,500 and worked approximately 15 weeks in the prior year (20 weeks for federal UI)capable of, available for and actively seeking work (including part time work w/ or w/o reasonable accommodation)Base Period & Benefit Year
7 How To ApplyFile a claim or check status of claim with the Massachusetts Department of Unemployment Assistance (DUA)Call orCall by last SS#: M-0,1,2; T-3,4,5; W-6,7;Th-8,9.For more information, go to
8 Calculating An Unemployment Check In most cases, UI will be about half of average weekly gross wagesup to the maximum (currently $653/week)plus an allowance of $25 per dependent childDependency allowance is capped at 50% of UI checkCheck is usually calculated on the basis of the 2 HQ earnings, total benefits are the lesser of 36% of BPE or 30 x WBA
9 Duration of UI Benefits State UI may last up to 30 weeks (now during fed. ext weeks)May be less if work income fluctuated or worked less than a year(See UI Advocacy Guide, Appendix C)UI may be extendedto participate in training;or when high unemployment rate triggers federal extended benefits
10 Federal Extended UIProgram in effect from 7/6/08 – week ending 12/29/12 (originally 99 weeks through EUC Tier I, II, III, IV and EB)Eligibility:currently unemployedworked equivalent of 20 weeks during base periodEUC: Tier I - benefit year expired (BYE) between 5/5/07 & 12/15/12; Tiers II – previous Tier exhausted on or before 12/22/12; last payable week for EUC is 12/29/12.EB: 3/22/09 thro’ 3/8/12; file by 4/1/12; last payable week – 4/7/12.Current maximum: 26 weeks (state) & weeks (fed – EUC: Tier I – 20 wks if filed before 9/2/12, on or after 9/2/ weeks; Tier II – 14 wks) = up to weeks (note: EB & Tier III & IV benefits no longer available). After fed. benefits end on 12/29/12, state benefits go back up to max of 30 weeks.
11 Must any job be accepted? No, only “suitable” job. A job is not suitable if:it is detrimental to health, safety, or moralsit does not fit employee’s training or experienceIt has different pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test”the commuting distance is unreasonable/not comparableit is vacant due directly to a strike, lockout, or other labor disputeit would require joining a co. union or limit joining or retaining membership in a union.Special rules apply for Domestic Violence situations
12 To make sure checks keep coming or to establish eligibility if initially denied: Every week must use WebCert or TeleCert (interchangeably) to certify active work search.TeleCert: (617) (English and Spanish)WebCert: go to and click on “File Weekly Unemployment Claims Online” located on the right-hand side of the page to sign up for WebCertClaimant must keep certifying eligibility so that automatically receive UI even if initially denied UIPredate may be possible - see G.L. c.151A § 62A (g) (employer’s failure to provide notice); SRH 1622 (good cause, inability to contact DUA, unaware of right to file)
13 To make sure checks keep coming (2): Under recently passed federal law, UI claimants will have more stringent work search requirements while receiving federal benefits, including:Keeping a log of all work search activityMandatory meetings at local career centersAlleged failure without good cause (see SRH 1614) may result in suspension of UI!Contact GBLS if this happens to your client.
14 Can a claimant work part-time without losing the whole UI check? Greater Boston Legal Services4/6/2017Can a claimant work part-time without losing the whole UI check?Yes – If earn an amount less than one-third of UIGross earnings up to a third of the weekly benefit rate are disregarded. This is the “earnings disregard.”Additional part time earnings are deducted $ for $ from UI.Must report earningsDUA does a cross match with DORIMPORTANT NOTES:1. If quit part-time job for a disqualifying reason, deductions will continue to be made from UI check. This is a “constructive deduction.”2. Partial earnings may result in a reduction of federal extended benefits after expiration of benefit year (if benefit year ended before July 22, 2010), after July 22, 2010 can choose to continue on higher federal rate if will receive at least $100 or 25% more in benefits.An Overview of Unemployment Insurance
15 Can a claimant participate in training while receiving UI? Yes, if first approved by DUA.Training cannot last more than 2 years.3 yr. for combined ESOL/Basic with Vocational training; stand-alone ESOL is now approvedJob search is waived while in trainingExtended UI for training: apply for training w/in 15 weeks of a new or continued claim: note tolled during federal extension, i.e. until Dec. 29, 2012if approved, can get up to 26 weeks of extended UI during training. (Ex. G)Can apply if benefit year ended and even if no longer collecting federal benefits.Find a training program at One-Stop Career Centers (see UI Advocacy Guide, Appendix A)Pell grants up to $5,350 – see:
16 Health Insurance for the Unemployed (1) Must be 400% or less of FPL, MA resident Eligible for MA UI from a MA EmployerTwo Types of Coverage:(A) Premium Assistance Plan:Claimant had prior coverageClaimant pays for existing coveragePartial reimbursement for premiums(up to 80%: currently up to $1,200 for family plan and $500 for individual coverage)
17 Health Insurance for the Unemployed (2) Greater Boston Legal Services4/6/2017Health Insurance for the Unemployed (2)(B) Direct Coverage PlanIf no prior coverage, orIf financial hardship (150% poverty), orExpenses exceed 7% of incomeCOBRA option expired.Note: copays depend on type of hospital-consult MSP schedule of benefits; in addition, DUA has recently imposed weekly premiums for some enrollees in DCP which claimants must agree to have deducted from their weekly check in order to remain eligible for DCP benefits, see 430 CMR § 7.07(2)(b)(1) & (2). See DUA’s website for more info.For information and application: orAn Overview of Unemployment Insurance
18 Is UI Taxable? Yes. If want taxes withheld, must make a request. DUA sends out 1099-G, available at or call 617/If choose to withhold taxes from UI:10% of weekly benefit will be withheld for federal taxes5.3% for state taxesIf don’t withhold, responsible for taxes owed at tax time.
19 Non-Citizens Must be authorized to work to collect UI but: Different requirements in base period & benefit year:Base period: 3 categories (includes PRUCOL) (Ex. O) (2nd Page)Benefit year: must prove work authorization (Ex. N)Contact GBLS if questions about immigration status
20 Verification of Entitlement (SAVE) Non-CitizensSystematic AlienVerification of Entitlement (SAVE)Needs to provide A# and provide document verifying work authorization (Ex. P)DUA sends it to ICE through SAVE: primary verificationIf problem with document verifying work authorization; additional verification (Ex. O)
22 Sequence of a Claim (1) Claimant files claim with DUA DUA notifies employer of claim (Ex. A)Employer has 10 days to respondIf the employer checks “laid off,” benefits start shortly after a one-week waiting period.If employer does not timely respond - not a party unless “good cause”Alert: watch out for responses by employer “agents” e.g., TALX, USC.
23 Sequence of a Claim (2) If not a layoff, DUA conducts an investigation DUA requests info from employer (Ex. B) and claimant (Ex. C)DUA makes benefit determination (Ex. D & Ex. E)DUA issues a Notice to Claimant of Disqualification (Ex. F) orDUA issues claimant checks
24 Sequence of a Claim (3) Claimant’s Statement assist claimant in presenting her claim to claims adjusteruse the fact-finding questions in SRHhelp with chronology, relevant facts, state of mind, and supporting documents
25 Sequence of a Claim (4) Employer’s Statement Employers outsource UI functionsCompanies handling UI claims often have no first-hand knowledgeConsider contacting DUA Determinations Dept. for reversal if information is erroneousEmployer must now swear to truth of statement under pains and penalties of perjury CMR 5.02 (8).
26 Sequence of a Claim (5) Appeals: If benefits denied claimant has 10 days to request hearing (30 days if good cause) (Ex. H)If benefits granted employer has 10 days to appeal (30 days if good cause)New regulation – 60 days if claimant is LEP and no limit if LEP and not informed in primary language. 430 CMR 4.14.
27 Sequence of a Claim (6)DUA sends hearing notice (Note: postponement request deadline (Ex. I) (Luciano litigation)DUA holds administrative hearingDUA issues a hearing decision (Ex. J)Decision should issue within 45 days of hearing requestLosing party has 30 days to appeal to Board of Review (Ex. K) (Pavian: reaffirmed postmark rule)Always appeal meritorious case to Board --- if lack resources, advise claimant to do so.
28 Sequence of a Claim (7) Board of Review may do the following: Deny further review (Ex. L)Do nothing at all. Case deemed denied after 21 days (court appeal due within 51 days of appeal)Allow & remand to DUA (Ex. M)Allow & Board reviews record (Ex. M-1)Allow & Board holds hearing (very rare)(G.L. c. 151A, § 41)Note: Board now posts decisions on web.
29 Sequence of a Claim (8)Losing party has 30 days to appeal Board of Review’s decision to District CourtClaimant, employer & DUA are all parties (unless single party issue) – must serve complaint within 7 days of filing by certified mail, return receipt requested. G.L. c. 151A, § 42.District Court decision can be appealed to Appeals Court and then to Supreme Judicial Court (by cert)Claimants need to continue to certify their eligibility using WebCert or TeleCert during appeal process
30 Reconsideration/Redetermination Remedy if time for appeal expired (& not more than one year since original determination)Letter to DUA Director requesting reconsideration under G.L. 151A, § 71Decision fully discretionaryIf DUA initiates redetermination, must notify claimant of opportunity to present evidence before its decision and before checks are stopped [NEW]. (Ex. F-1; F-4)G.L. c. 151A, § 71; 430 CMR 4.30 et seq; et seq.
31 Greater Boston Legal Services 4/6/2017Waiver of OverpaymentEligible for Waiver of Overpayment if:there is no proof of fraudandre-paying the money would:Either “defeat the purpose of benefits”Or would be against “equity and good conscience”G.L.c. 151A sec. 69; 430 CMR 6.00 et seq.; Ex. F-3: Notice of OverpaymentAn Overview of Unemployment Insurance
32 Is it really fraud? Waiver available only if no finding of fraud Examine whether fraud finding includes finding of fraudulent intent -- i.e., did claimant have “state of mind” to intentionally defraud DUA: see SRH 1462If no intent, challenge through hearing or redeterminationLEP issues: see SRH 1463Procedures currently being challenged in court by GBLS & MLRI contact us.
34 Greater Boston Legal Services 4/6/2017The DUA Hearing (1)Informal Fair Hearing Rules: 801 CMR 1.02Agency: DUA/Hearings DepartmentHearing Officer: Review ExaminerParties: Claimant and Employer (unless single party issue)Your prep: ask to observe a hearingAn Overview of Unemployment Insurance
35 The DUA Hearing (2) Who can appeal: Either party Evidence: Formal rules of evidence do not applyProceedings: Audio-recordedDiscovery:DUA filePersonnel record (G.L. c. 149, § 52C)Request only if strategic to do so
36 The DUA Hearing (3) Review docs in DUA’s Hearing File UI Request for Information sent to employerExamine date for timely returnNotice to Claimant of DisqualificationStatements from employer and claimantNotice of hearingAny other documents submitted by parties to claims adjudicator
37 The DUA Hearing (4) Preparation of Claimant Take the time to thoroughly prepare your clientAt least 3 meetingsAverage time for case prep – 25 hoursThink about employer’s best case and how to meet it and confront bad factsWrite out direct, cross of employer and potential cross of your clientRole play with supervisor/colleagues and then prepare clientDescribe hearing “scene” and what to expect at hearing
38 The DUA Hearing (5) Rights and duties of parties Present witnesses Cross examinationOral testimonyDocumentary evidence
39 The DUA Hearing (6) Direct Examination Do not ask leading questions! Use open-ended questionsTell a story that fits with theory of case (see Mauet)Chronology of events backwardsGroup your direct into subject areasDo not dwell on unimportant detailsDo not interrupt your witness
40 Greater Boston Legal Services 4/6/2017The DUA Hearing (7)Re-Direct ExaminationYour client or your witnessAfter your witness is cross-examined, you can re-directRe-direct only if you need to do soDo not use it to bring out nit-picking pointsUse your re-direct to:Clarify a point, orElaborate on a subject (brought out on cross) that helps your clientAn Overview of Unemployment Insurance
41 The DUA Hearing (8) Cross Examination Only if you must! Did the witness hurt you?Do you have real ammunition?Do you know how the witness will answer the question?Ask leading questions (require yes/no)Avoid “why” or open-ended questions
42 Greater Boston Legal Services 4/6/2017The DUA Hearing (9)Documents and ObjectionsRelevanceHearsayIntroducing a document into evidenceE.g., authenticity of document: dated, signed, letterheadPrivilegeAn Overview of Unemployment Insurance
43 The DUA Hearing (10) Closing Argument Make it short (< 2 minutes) & to the pointConnect the dotsUse to highlight the most favorable factsDo not recite the entire hearingDo not lecture the Review Examiner on the lawCan submit proposed findings of fact & rulings of lawIf necessary, ask for 24 hours to conform facts to evidence
44 InterpretersDUA provides interpreters at hearings at no cost to claimants2-hour hearingClaimant or claimant’s advocatemust request interpreterProblems with Interpreters? Contact:Marisa de la Paz, DUA Multilingual Services (617)
46 Disqualification: Discharge Discharge: G.L. c. 151A, § 25(e)(2)(1) Deliberate misconduct(2) A knowing rule violationEmployer has burden of proofException: Domestic ViolenceNo disqualification if discharge is due to circumstances resulting from domestic violenceIncluding individual’s need to address the physical, psychological and legal effects of DV
47 Discharge: “Deliberate Misconduct” … Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interestClaimant’s state of mindIntentional disregard of employer’s interest and expectationsEmployer must prove BOTH statutory elements
48 Discharge: “Knowing Violation” (1)… of a “reasonable and uniformly enforced” rule or policyA knowing violation requires intentClaimant must have intended to violate the rule or policySee: Still v. Commissioner of Employment and Training, 423 Mass. 805, 672 N.E. 2d 105 (1996)Claimant must have been aware of rule or policyConsciously aware at the time of the act
49 Discharge: “Knowing Violation” (2) Rule or policy must be reasonableRule or policy must be uniformly enforced both with respect to other employees and the individual employee (so employers cannot disqualify a person for violations it had repeatedly tolerated in the past without imposing discipline)NOTE: Incompetence does not constitute a violation
50 Discharge examples…disqualifying or not? Swearing at a supervisorTardiness after “final” warningFailure to meet production goalsStealing guest propertyFighting with co-workerExcessive absences to go to therapyto deal with DVRemember: state of mind
51 Disqualification: Leaving Voluntary Quit: G.L. c. 151A, § 25(e)(1)(1) Good cause attributable to the employer(2) Urgent, compelling and necessitous reasonsClaimant has burden of proofException: domestic violence
52 Voluntary Quit: “Good Cause”… attributable to the Employer Claimant must have made reasonable efforts to resolve the problem unless futileException: Domestic ViolenceException: cases involving allegations of sexual harassment (See Tri-County Youth Programs, Inc. v. Acting Deputy Director of DET, 765 N.E. 2d 810, (Mass. 2002)); racial, or other unreasonable harassment (See G.L. c. 151A, §25(e), ¶5; 430 CMR 4.04(5))General job dissatisfaction or unfair criticism are not grounds for good cause; however, substantial increase in responsibilities or decrease in pay may be sufficientConsult: Your Rights on the Job to determine if employment law violations.
53 Voluntary Quit: “Urgent, Compelling & Necessitous” Non work-connected reason – G.L. c. 151A, sec. 25(e), par. 3Claimant must have made reasonable efforts to preserve job, unless futileEmployer’s account not charged (if insured)Benefits paid from UI solvency fund(also pays for dependency allowance, extended training benefits, quit because of domestic violence, and quit for another job – 430 CMR 5.05(4))May raise “availability” issuesKey to these cases is thorough exploration of client’s circumstances.
54 Special rules for temp agency jobs: Must prove that contacted temp agency to see if more jobs available before applying for UI. Note: notice must be provided to claimant in customary way, notice must include statement that failure to request reassignment will affect rights to UI, & the job must be suitable. G.L. c.151A, § 25 (e) par. 8,9; 430 CMR 4.04(8)(b)(2)).Call GBLS at if claimant denied UI after completing a temp job.
55 Voluntary Quit Example…disqualifying or not? Shift change or transferUnfair reprimandHarassmentInadequate payLack of transportationDomestic violenceTemp assignment ends