and Reasonable Assurance Unemployment Compensation and Reasonable Assurance

Unemployment compensation This session will provide: An overview of unemployment compensation An explanation of reasonable assurance Information on what should be included in reasonable assurance letters and to whom these should be sent Information on the recent unemployment claims fraud issue

Unemployment compensation Unemployment compensation - an employee benefit system. To qualify, the worker must: (1) Have 680 hours of covered employment (with wages in Washington) in his/her base year, and (1) Be unemployed through no fault of his/her own, and (2) Be able, available and actively seeking work. The weekly benefit amount is 3.85% of the average of the two highest paying quarters of earnings in the employee’s base year. The base year is the first four of the last five completed quarters Subject to a weekly benefit minimum of $151 and maximum of $637 An unemployed worker can receive up to 26 weeks of benefits Unemployment benefits are taxable

Unemployment compensation The process begins when an unemployed or underemployed worker (a substitute or an employee whose hours/days have been reduced) files for unemployment benefits. An unemployment claim can be filed online on the Employment Security Department website at http://www.esd.wa.gov/

Unemployment compensation The State of Washington Employment Security Department adjudicator initially seeks information from the worker. The person is probably eligible if laid off or for lack of work. Employment Security Dept. has to make a decision about eligibility if the employee voluntarily quit his/her job, was fired or suspended by the employer, or took a leave of absence. The employer is also contacted to provide information about the job separation, typically with the “Notice to Employer – Claimant’s Separation Statement” and the “Employer Response – School Employee, Contract or Reasonable Assurance Information” forms. In consultation with the district, ESD 112 completes these forms for member districts.

Unemployment compensation Reasons that unemployment benefits are allowed for a voluntary quit (RCW 50.20.050) – the employee quit: To accept a bona fide job offer Due to illness or disability of the claimant or family member (having made efforts to preserve his/her job, such as a LOA) To relocate for spouse’s military transfer To protect the claimant or family from domestic violence Because compensation was reduced by 25% or more Because hours were reduced by 25% or more Because the worksite location changed causing a material increase in travel distance (25 miles) Because worksite safety deteriorated and the employer did not correct this Because there were illegal activities in the worksite Because the work changed and now violates religious convictions or moral beliefs To enter an approved apprenticeship program

Unemployment compensation Once the adjudicator has gathered information, a determination of eligibility is made and a “Determination Notice” is sent to the worker and his/her current or last employer. Sometimes more than one “Determination Notice” is sent because there are several eligibility issues to decide (e.g. reasonable assurance, voluntary quit, or availability).

Unemployment compensation If either the worker or the employer disagrees with the eligibility determination, an appeal may be filed. A hearing will be scheduled before an Administrative Law Judge with the State of Washington, Office of Administrative Hearings. As a member of the Unemployment Pool, we will represent your district at the hearing, and will contact you for information and/or prepare district witnesses to testify if needed. After the hearing, the Administrative Law Judge will issue an “Initial Order” that affirms, modifies or sets aside Employment Security Department’s eligibility determination. This order becomes the judgment unless appealed by filing a “Petition for Review.”

Reasonable assurance No unemployment benefits for school employees during scheduled breaks   The reason for this is that the employee accepted a job for the school district which involved work only during the school year (typically 180 days). The law in Washington State (RCW 50.44.050) denies unemployment compensation benefits to individuals employed with school districts during scheduled breaks (including summer) if they will return to basically the same job after the scheduled break.

Reasonable assurance No unemployment benefits for school employees during scheduled breaks “Benefits shall not be paid based on any and all services in any other capacity for any and all educational institutions for any week of unemployment which commences during the period between two successive academic years … if … there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms.” RCW 50.44.050 (2) The same exclusion applies to other scheduled school breaks.

Reasonable assurance The Employment Security Department determines an educational employee’s eligibility for unemployment benefits between academic years or terms based on “reasonable assurance” that the employee will have continued employment during the following academic year or term. The burden of proof of this reasonable assurance rests with the employer.

Reasonable assurance The existence of a contract or showing of reasonable assurance can establish continued employment. RCW 50.44.053 (1) defines “reasonable assurance” as “a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term as in the first academic year or term.” "In the same capacity" is later defined as “under the same terms or conditions of employment in the ensuing year as in the first academic year or term.”

Reasonable assurance letters In the absence of a written contract, a school district may document this reasonable assurance of continued employment by using what is referred to as a “reasonable assurance letter.” This letter should state that the employee has reasonable assurance of continued employment in the next academic year or term. Districts also use this letter to document the continued interest of substitutes to work in their district the next school year.  

Reasonable assurance letters Such a letter should not be sent to employees who do not have reasonable assurance of returning in the “same capacity”. “Same capacity” means positions that fall under the same terms and conditions of employment test, which include wages, duration of contract, hours of work, and the general nature of the work. It does not include details such as the specific work location, duties, or assignment. The position need not be identical to the previous position to meet this test. 

Reasonable assurance If an individual was employed in an on-call substitute position before the break and has reasonable assurance to return to the active on-call substitute list after the break, s/he is not eligible for unemployment benefits based on his/her school wages. Some individuals who have non-school wages may qualify for unemployment benefits based on the non-school wages. In the case of an individual who had a long term substitute position that ended with the school year and then is put on the on-call list for the next year, that situation would not fall under the same terms and conditions and thus this person may qualify for unemployment compensation.

Reasonable assurance Without a reasonable assurance letter, the employee who is not working for the school district over the summer could make the case to the Employment Security Department that s/he has no assurance of continued employment, and therefore may be able to receive unemployment benefits. The employee may also rely on what someone else at the district tells them about his/her continued employment (whether it is true or not).

Reasonable assurance letters What if the district doesn’t know if the employee will be offered work under the same terms and conditions? Make your best guess given the estimated funding and program needs Don’t send the employee a reasonable assurance letter until you know that the position will be available - and do send it when you do know (even mid to late summer)

Reasonable assurance letters What should be included in reasonable assurance letters? Recall that the RCW defines “reasonable assurance” as “a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term as in the first academic year or term.”

Sample RA letter Same terms and conditions Unemp benefits may be denied If not same terms, may be able to collect, but need to apply Not an employment contract Agreement to continue employment, signed and dated

Sample on-line RA letter

ESD 113 Sample RA Letter

Reasonable assurance letters How long should reasonable assurance (RA) letters be retained? The summer RA letter also applies to the winter and spring scheduled school breaks for the next school year Some substitutes may apply for unemployment benefits during those breaks Please retain RA letters at least until the next year’s RA letter is sent

Reasonable assurance letters The second step in reasonable assurance letters – Remove the sub from the active list if no response At hearing, how will an administrative law judge know that the employee quit rather than being removed by the district? Who was the moving party to the separation? One is a voluntary quit (with no benefits) and the other is a termination (where benefits are allowed) The employee has to actively quit, or take no action to more than one attempt by the employer to ascertain whether the employee will continue work (which is judged as a quit)

Make a second attempt, and if no response remove the sub from the active list

Unemployment in termination agreements Be careful what you agree to related to unemployment benefits in termination agreements You can say that “the employer will not contest unemployment benefits” But that is no guarantee that the ex-employee will receive benefits since the decision is made by the Employment Security Dept. Let us know if there is such an agreement so we may respond appropriately to requests for info from the Employment Security Dept. If the employer initiated the separation (even a resignation in lieu of termination), and there is no misconduct, the ex-employee is likely to receive unemployment benefits In a “resignation in anticipation of termination,” benefits may be denied

Fraudulent unemployment claims in WA Reportedly the perpetrators have gotten into the Department of Labor database for personal information, so this is a national issue.

Unemployment fraud Fraudulent unemployment claims have affected 8 employees at 4 of our member districts over the last 6 months. Fortunately, we have procedures in place that caught these potentially fraudulent claims before they were paid. It was during the validation of job separation information that the district contacts noted that these employees were either not unemployed (12 month employees or teachers) or were deceased. The affected employees were contacted by the district to confirm that they had not filed a claim for unemployment benefits, and were asked to contact the Employment Security Department to let the Dept. know they had not filed. We also reported these claims as fraudulent to the Employment Security Dept.

Unemployment compensation Reasonable assurance Questions?