Unemployment Insurance September 13, 2012 Massachusetts Continuing Legal Education Massachusetts Law Reform Institute & Greater Boston Legal Services Basic Benefits Training

What Is Unemployment Insurance? Greater Boston Legal Services 4/6/2017 What Is Unemployment Insurance? Non-means tested cash assistance program established by Congress in 1935 Law and policies set generally by federal government States determine benefit levels, duration & disqualification Employers are source of funding for UI benefits, but only taxed on 1st $14,000 (Solvency Fund) UI is first line of defense in a recession Section 74: the statute shall be liberally construed in favor of the worker and the worker’s family An Overview of Unemployment Insurance

Resources to Understand Unemployment State law: G.L. c. 151A DUA regs: 430 CMR; 801 CMR sec. 1.02 DUA policies: Service Representatives Handbook Mass. Unemployment Advocacy Guide (2012-2013) DUA web site: www.mass.gov/dua Board of Review Decisions: http://dwd-webapp-01.detma.org/bor_decisions DOL website: workforcesecurity.doleta.gov/unemploy/ Legal Services Website: www.masslegalservices.org Other good resources: Thomas A. Mauet, Trial Techniques Robert Schwartz, Your Rights on the Job, 5th Ed.

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.

The Administration of Unemployment & Job Training Programs

Eligibility for Unemployment UI eligibility if: totally or partially unemployed separated from employment through no fault earned 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

How To Apply File a claim or check status of claim with the Massachusetts Department of Unemployment Assistance (DUA) Call 617-626-6800 or 1-877-626-6800 Call by last SS#: M-0,1,2; T-3,4,5; W-6,7;Th-8,9. For more information, go to www.mass.gov/dua

Calculating An Unemployment Check In most cases, UI will be about half of average weekly gross wages up to the maximum (currently $653/week) plus an allowance of $25 per dependent child Dependency allowance is capped at 50% of UI check Check is usually calculated on the basis of the 2 HQ earnings, total benefits are the lesser of 36% of BPE or 30 x WBA

Duration of UI Benefits State UI may last up to 30 weeks (now during fed. ext. - 26 weeks) May be less if work income fluctuated or worked less than a year (See UI Advocacy Guide, Appendix C) UI may be extended to participate in training; or when high unemployment rate triggers federal extended benefits

Federal Extended UI Program 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 unemployed worked equivalent of 20 weeks during base period EUC: 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) & 41- 47 weeks (fed – EUC: Tier I – 20 wks if filed before 9/2/12, on or after 9/2/12 - 14 weeks; Tier II – 14 wks) = up to 54 - 60 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.

Must any job be accepted? No, only “suitable” job. A job is not suitable if: it is detrimental to health, safety, or morals it does not fit employee’s training or experience It has different pay, hours & benefits or doesn’t meet the “the prevailing conditions of work test” the commuting distance is unreasonable/not comparable it is vacant due directly to a strike, lockout, or other labor dispute it would require joining a co. union or limit joining or retaining membership in a union. Special rules apply for Domestic Violence situations

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) 626-6338 (English and Spanish) WebCert: go to http://www.mass.gov/lwd/unemployment-insur/ and click on “File Weekly Unemployment Claims Online” located on the right-hand side of the page to sign up for WebCert Claimant must keep certifying eligibility so that automatically receive UI even if initially denied UI Predate 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)

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 activity Mandatory meetings at local career centers Alleged failure without good cause (see SRH 1614) may result in suspension of UI! Contact GBLS if this happens to your client.

Can a claimant work part-time without losing the whole UI check? Greater Boston Legal Services 4/6/2017 Can a claimant work part-time without losing the whole UI check? Yes – If earn an amount less than one-third of UI Gross 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 earnings DUA does a cross match with DOR IMPORTANT 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

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 approved Job search is waived while in training Extended 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, 2012 if 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: www.opportunity.gov

Health Insurance for the Unemployed (1) Must be 400% or less of FPL, MA resident Eligible for MA UI from a MA Employer Two Types of Coverage: (A) Premium Assistance Plan: Claimant had prior coverage Claimant pays for existing coverage Partial reimbursement for premiums (up to 80%: currently up to $1,200 for family plan and $500 for individual coverage)

Health Insurance for the Unemployed (2) Greater Boston Legal Services 4/6/2017 Health Insurance for the Unemployed (2) (B) Direct Coverage Plan If no prior coverage, or If financial hardship (150% poverty), or Expenses exceed 7% of income COBRA 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: 1-800-914-4455 or 1-800-908-8801 An Overview of Unemployment Insurance

Is UI Taxable? Yes. If want taxes withheld, must make a request. DUA sends out 1099-G, available at www.mass.gov/dua/webcert or call 617/626-5647 If choose to withhold taxes from UI: 10% of weekly benefit will be withheld for federal taxes 5.3% for state taxes If don’t withhold, responsible for taxes owed at tax time.

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

Verification of Entitlement (SAVE) Non-Citizens Systematic Alien Verification of Entitlement (SAVE) Needs to provide A# and provide document verifying work authorization (Ex. P) DUA sends it to ICE through SAVE: primary verification If problem with document verifying work authorization; additional verification (Ex. O)

Sequence of a Claim

Sequence of a Claim (1) Claimant files claim with DUA DUA notifies employer of claim (Ex. A) Employer has 10 days to respond If 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.

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) or DUA issues claimant checks

Sequence of a Claim (3) Claimant’s Statement assist claimant in presenting her claim to claims adjuster use the fact-finding questions in SRH help with chronology, relevant facts, state of mind, and supporting documents

Sequence of a Claim (4) Employer’s Statement Employers outsource UI functions Companies handling UI claims often have no first-hand knowledge Consider contacting DUA Determinations Dept. for reversal if information is erroneous Employer must now swear to truth of statement under pains and penalties of perjury. 430 CMR 5.02 (8).

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.

Sequence of a Claim (6) DUA sends hearing notice (Note: postponement request deadline (Ex. I) (Luciano litigation) DUA holds administrative hearing DUA issues a hearing decision (Ex. J) Decision should issue within 45 days of hearing request Losing 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.

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.

Sequence of a Claim (8) Losing party has 30 days to appeal Board of Review’s decision to District Court Claimant, 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

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, § 71 Decision fully discretionary If 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; 11.01 et seq.

Greater Boston Legal Services 4/6/2017 Waiver of Overpayment Eligible for Waiver of Overpayment if: there is no proof of fraud and re-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 Overpayment An Overview of Unemployment Insurance

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 1462 If no intent, challenge through hearing or redetermination LEP issues: see SRH 1463 Procedures currently being challenged in court by GBLS & MLRI contact us.

The DUA Hearing

Greater Boston Legal Services 4/6/2017 The DUA Hearing (1) Informal Fair Hearing Rules: 801 CMR 1.02 Agency: DUA/Hearings Department Hearing Officer: Review Examiner Parties: Claimant and Employer (unless single party issue) Your prep: ask to observe a hearing An Overview of Unemployment Insurance

The DUA Hearing (2) Who can appeal: Either party Evidence: Formal rules of evidence do not apply Proceedings: Audio-recorded Discovery: DUA file Personnel record (G.L. c. 149, § 52C) Request only if strategic to do so

The DUA Hearing (3) Review docs in DUA’s Hearing File UI Request for Information sent to employer Examine date for timely return Notice to Claimant of Disqualification Statements from employer and claimant Notice of hearing Any other documents submitted by parties to claims adjudicator

The DUA Hearing (4) Preparation of Claimant Take the time to thoroughly prepare your client At least 3 meetings Average time for case prep – 25 hours Think about employer’s best case and how to meet it and confront bad facts Write out direct, cross of employer and potential cross of your client Role play with supervisor/colleagues and then prepare client Describe hearing “scene” and what to expect at hearing

The DUA Hearing (5) Rights and duties of parties Present witnesses Cross examination Oral testimony Documentary evidence

The DUA Hearing (6) Direct Examination Do not ask leading questions! Use open-ended questions Tell a story that fits with theory of case (see Mauet) Chronology of events backwards Group your direct into subject areas Do not dwell on unimportant details Do not interrupt your witness

Greater Boston Legal Services 4/6/2017 The DUA Hearing (7) Re-Direct Examination Your client or your witness After your witness is cross-examined, you can re-direct Re-direct only if you need to do so Do not use it to bring out nit-picking points Use your re-direct to: Clarify a point, or Elaborate on a subject (brought out on cross) that helps your client An Overview of Unemployment Insurance

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

Greater Boston Legal Services 4/6/2017 The DUA Hearing (9) Documents and Objections Relevance Hearsay Introducing a document into evidence E.g., authenticity of document: dated, signed, letterhead Privilege An Overview of Unemployment Insurance

The DUA Hearing (10) Closing Argument Make it short (< 2 minutes) & to the point Connect the dots Use to highlight the most favorable facts Do not recite the entire hearing Do not lecture the Review Examiner on the law Can submit proposed findings of fact & rulings of law If necessary, ask for 24 hours to conform facts to evidence

Interpreters DUA provides interpreters at hearings at no cost to claimants 2-hour hearing Claimant or claimant’s advocate must request interpreter Problems with Interpreters? Contact: Marisa de la Paz, DUA Multilingual Services (617) 626-5471

DISQUALIFICATION Based on Separation

Disqualification: Discharge Discharge: G.L. c. 151A, § 25(e)(2) (1) Deliberate misconduct (2) A knowing rule violation Employer has burden of proof Exception: Domestic Violence No disqualification if discharge is due to circumstances resulting from domestic violence Including individual’s need to address the physical, psychological and legal effects of DV

Discharge: “Deliberate Misconduct” … Claimant must have engaged in “deliberate misconduct” in “willful disregard” of the employer’s interest Claimant’s state of mind Intentional disregard of employer’s interest and expectations Employer must prove BOTH statutory elements

Discharge: “Knowing Violation” (1)… of a “reasonable and uniformly enforced” rule or policy A knowing violation requires intent Claimant must have intended to violate the rule or policy See: Still v. Commissioner of Employment and Training, 423 Mass. 805, 672 N.E. 2d 105 (1996) Claimant must have been aware of rule or policy Consciously aware at the time of the act

Discharge: “Knowing Violation” (2) Rule or policy must be reasonable Rule 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

Discharge examples…disqualifying or not? Swearing at a supervisor Tardiness after “final” warning Failure to meet production goals Stealing guest property Fighting with co-worker Excessive absences to go to therapy to deal with DV Remember: state of mind

Disqualification: Leaving Voluntary Quit: G.L. c. 151A, § 25(e)(1) (1) Good cause attributable to the employer (2) Urgent, compelling and necessitous reasons Claimant has burden of proof Exception: domestic violence

Voluntary Quit: “Good Cause”… attributable to the Employer Claimant must have made reasonable efforts to resolve the problem unless futile Exception: Domestic Violence Exception: cases involving allegations of sexual harassment (See Tri-County Youth Programs, Inc. v. Acting Deputy Director of DET, 765 N.E. 2d 810, 815-816 (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 sufficient Consult: Your Rights on the Job to determine if employment law violations.

Voluntary Quit: “Urgent, Compelling & Necessitous” Non work-connected reason – G.L. c. 151A, sec. 25(e), par. 3 Claimant must have made reasonable efforts to preserve job, unless futile Employer’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” issues Key to these cases is thorough exploration of client’s circumstances.

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 617-603-1810 if claimant denied UI after completing a temp job.

Voluntary Quit Example…disqualifying or not? Shift change or transfer Unfair reprimand Harassment Inadequate pay Lack of transportation Domestic violence Temp assignment ends