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Presented by Scott Pachico Client Services Manager Unemployment Services Corp.

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1 Presented by Scott Pachico Client Services Manager Unemployment Services Corp

2  Claims Adjuster, MA DUA 1990–1991  Review Examiner (Hearing Officer), MA DUA 1991–2003  Principal Review Examiner of SE, MA DUA  Quality Control Officer, MA DUA  Hearing Representative for Employers present  Participated in over 21,000 unemployment hearings in MA, RI, TX, FL, CT, & GA

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4  In 1932, in the midst of the Great Depression, Wisconsin became the first state in the U.S. to enact an unemployment insurance law.  Six other states enacted UI laws prior to The Social Security Act of 1935… A Brief History of Unemployment

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6 Yup – Massachusetts was one of the 7 States to enact UI Laws prior to the Social Security Act of 1935

7  MA has the most liberal unemployment laws in the USA.  MA has the highest Benefit Rate in the USA 50% of Gross Weekly Wages, up to a max of $ per week. Dependency Allowances of $25.00/dependent child. Max benefits allowed in MA $20, weeks of benefits in times without extensions, while other States only allow 26 weeks of benefits.

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9 The Unemployment Insurance system was created to stabilize the economy and alleviate personal hardship stemming from involuntary job loss. Reasons for Unemployment Insurance

10 The Unemployment Insurance program provides temporary cash benefits to individuals who are unemployed through no fault of their own, so that they can meet their basic financial needs and provide for their families while searching for new employment. Reasons for Unemployment Insurance

11 These benefits help to maintain an individual’s purchasing power; they are spent immediately on necessities such as food, fuel and housing, and thus provide a stimulus for local economies. Reasons for Unemployment Insurance

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13 In November of 2011, President Obama signed into law, as part of the Free Trade act H. R. 2832, new UI Integrity Rules intended to enhance the integrity of the UI system nationally.

14 The legislation includes the provision (Section 252) requiring states to prohibit relief from charges to employer UI accounts if the UI agency determines that :

15 (A) the payment was made because the employer or an agent of the employer, was at fault for failing to respond timely or adequately to the request of the agency, and (B) the employer or agent has established a pattern of failing to respond timely or adequately to such requests.

16 The Good:  Unemployment Insurance tax schedule is reduced from schedule E to schedule C for  The Rate Table is expanded to reward employers with low turnover.

17 The Bad:  The taxable wage base increased to $15,000.  Maximum benefit rate was increased by 3% (effective )

18 The Ugly Higher Unemployment Insurance Taxes can result as employers pay less into their reserve balance while payment amounts to claimants increase or remain the same. When your reserve balance decreases, the result is an increase to your UI Tax Rate.

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20 Can a claimant collect unemployment benefits if they quit their job in Massachusetts?

21 If the claimant can establish that they left their job for good cause attributable to the employer or its agent, or for urgent, compelling and necessitous reasons, they will be paid unemployment benefits pursuant to MGL C. 151A, Section 25(e)(1) of the Employment Security Law.

22 Can a claimant collect unemployment benefits if they are discharged from their job in Massachusetts?

23 Yes, unless the Employer can establish, through substantial and credible evidence, that the claimant was discharged either for an act of deliberate misconduct in wilful disregard of the employing unit’s interest, or for a knowing violation of a reasonable and uniformly enforced rule or policy as long as the violation was not due to the employee’s incompetence. MGL C. 151A, Section 25(e)(2)

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25 You should attend the hearing if you had direct involvement in the separation.  Direct, credible testimony is critical – you will need to be able to explain why and when you took the action(s) connected to the claimant’s separation.  Hearsay evidence is allowed, but carries little weight.  Notarized statements have limited value as they cannot be cross-examined.

26 What to Expect The hearing is held in a conference room or over the telephone.  A state-appointed Hearing Officer will preside over the process.  The hearing will be recorded and all testimony will be give under oath.

27  Other attendees may include the claimant, witnesses and/or representatives for either party.  Witnesses may be sequestered at the discretion of the Hearing Officer.  Most proceedings are completed within 1 hour. Occasionally, the hearing will be continued and rescheduled if more time is needed.

28  If a case is continued, the next hearing date is often decided at the end of the initial hearing.  Once continued hearings are scheduled, they are usually not postponed due to a conflict. For this reason, it is very important that you bring your calendar (with availability) to all hearings.

29 What to Bring to the Hearing All documentation related to the separation must be available at the time of the hearing, Depending on the case, the following documents may be considered relevant to be entered as exhibits:

30  Warning letter(s)  Policies/Rules  Handbooks  Security Records  Witness Statements  Resignation Letter(s)  Work Refusal Forms  Time Cards  House/Management Logs  Employee Acknowledgement Forms

31 Advice for Witnesses  All testimony is taken under oath  Listen carefully to the question and answer ONLY what is being asked. Don’t volunteer additional information.  If you don’t understand a question, ask for clarification.

32 More Advice for Witnesses  You are allowed to refer to notes and/or documents, but you cannot read from a prepared statement.  If you don’t know the answer, “I don’t know” is an appropriate response.  Credibility is considered when there is conflicting testimony.

33 Questions specific to a Quit There are certain questions that will be asked if the claimant quit. The burden of proof is upon the claimant. Normally, thee claimant will testify first. What reason did the claimant give for quitting? When did they give notice, and to whom? What could the employer have done to accommodate this employee and prevent them from quitting? What was done or offered to be done? What was the claimant’s response? If the claimant was unable to resolve these issues with their supervisor, was there anyone else to whom they could have addressed their dissatisfaction(s)?

34 Questions Specific to a Quit Were there any mitigating circumstances that caused the employee to quit? Did the claimant make a reasonable attempt to preserve their job before quitting (i.e. request a leave of absence or transfer)?

35 Questions Specific to a Discharge There are certain questions that will be asked if the claimant was discharged. The burden of proof is upon the employer. Normally, the employer will testify first. What was the final incident and when did it occur? What was the specific reason given to the claimant for the discharge? Who notified the claimant of the discharge and when did they do so? If the discharge was delayed, was there a reason for such? Were any prior warnings issued? When? Did policy require warnings?

36 Questions Specific to a Discharge What was the date of the final warning? What were the contents of the final warning? Was it in writing and did it state the consequences of further infractions? Was the claimant aware his/her job was in jeopardy? What specific policy/rule was violated? Is this policy/rule uniformly enforced? How was the claimant made aware of the policy/rule?

37 Questions Specific to a Leave of Absence There are certain questions that will be asked if the claimant is on a leave of absence (LOA). Who requested the LOA? Why? What type of LOA is it (FMLA, personal, etc.)? Dates of the LOA? Were the claimant’s responsibilities and rights documented? Was there documentation to substantiate the need for the LOA? Was an extension to the LOA available, requested and/or authorized?

38 Questions Specific to a Leave of Absence Was the employee capable of returning to work? With or without restrictions? Was restricted duty work available and/or requested? Was it offered? What reason did the employee give if not able to return to work from the LOA? Was there a reasonable alternative offered that could have protected the employee’s job?

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40 Supervisors and Managers Make a Difference Marginal Performers No Matter how hard they try, many employees are unable to meet the standards expected in the job for which they were hired. They do the best they can, but just “don’t cut the mustard.” The standards to be expected will vary from job to job and from supervisor to supervisor. In order to avoid the payment of unemployment benefits, the employer must be able to prove that the employee deliberately failed to meet standards. Of course, the employee most often states that they did the job to the best of their ability.

41  Marginal Performers (continued)  Failing to meet standards or being unsuited for the job can be the result of something over which the employee has control. That is - failing to follow instructions, insubordination, tardiness, or a deliberate lack of effort. It can successfully argued that if the employee was not following instructions, there is some control over failing to meet standards. Additionally, if an employee’s performance was previously meeting standards, but the quality/quantity of work later decreases, it can be argued that the claimant had the capability of meeting the employer’s standards and it leaves the claimant to explain why his/her performance declined. The burden of proof, however, is upon the employer to show that the claimant’s was deliberately failing to meet standards or was negligent in the performance of their duties.

42 Best Practices for Supervisors/Managers  Misconduct To establish misconduct, the supervisor must (in most cases) first warn the employee about the misconduct, how to act in accordance with the employer’s expectation, and that continuing to engage in such will place the employee’s job in jeopardy.  A Word on Warnings Clear, concise & with a consequence. Employee signature (if employee refuses to sign, a secondary witness signature is helpful). Supervisors/Managers can’t always be a “friend” to employees.

43 Best Practices for Supervisors/Managers  Then follow through on the warning. Condoned behavior = Benefits Allowed. Take action immediately. Suspend if necessary (i.e. in order to conduct an investigation). Beware of mitigating factors.

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45  Always respond to inquiries in a timely fashion – usually 10 calendar days is the limit.  Document everything and have employees sign showing receipt of such.  If you give someone an additional chance because of a mitigating circumstance, be clear that the behavior will not continued to be tolerated and explain the reason(s) why you are giving this additional chance

46  Ensure that managers and supervisors uniformly enforce company rules/policies.  Ensure that managers and supervisors keep detailed records of incidents in the event that they must appear at an unemployment hearing.  Utilize the services of a qualified Third-Party Administrator.

47 Any Questions?

48 Practical and scalable HR solutions P.O. Box 346 Wakefield, MA Cell: (508) Fax: (781)


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