1. Defending Unemployment Claims Presented By: Shane Switzer, CFO Biloxi Public Schools

2. The Most Important Thing to Remember about Unemployment Claims The deck is stacked against a school district. o There is a presumption that the employee is not at fault, at least not enough to disqualify from receiving benefits.

3. The Most Important Thing to Remember about Unemployment Claims Regardless of reason for termination, the large majority of departing employees automatically file for unemployment compensation. Why not? Filing a claim doesn't cost them anything. Once a claim has been filed, the ball is in the employer's court. If the employer does nothing, unemployment compensation will likely be granted.

4. The Unemployment Compensation Process The Claims Process – o Employee leaves employment for whatever reason. o Employee files claim for unemployment compensation o Agency sends form to employer asking for information regarding reasons for employee’s separation. This is a very important step: Opportunity to frame and tell the employer’s story as to why employee was terminated from employment. Agency reviews employer’s response and makes “Initial Determination” as to whether benefits will be paid. o The “Initial Determination” will be based on a number of factors: Was the separation based on a business need (e.g. reduction in force) or employee misconduct? o If misconduct, was it so severe as to warrant denial of benefits? o What rule or policy was violated?

5. The Unemployment Compensation Process IMPORTANT : At the very least fill out the form and return it by the deadline or ask for an extension. If you miss the deadline, chances are the employee will automatically be awarded unemployment benefits Normally done online

6. The Unemployment Compensation Process The Claims Process – o Either party may appeal the “Initial Determination.” If either party (employee or employer) appeals, then a telephone hearing is scheduled with an Appeals Referee. o The Hearing before the Appeals Referee is the most important step in the process. It is a “trial” of the employee’s UC case. Sworn testimony will be taken. Documentary evidence can be produced. o Testimony is presented by both parties through questioning by the Appeals Referee. o The Hearing before the Appeals Referee is the most important step in the process. The Appeals Referee will make credibility determinations of the witnesses. o Difficult because testimony is taken by phone o Documents are faxed in and are sometimes difficult to read. The Appeals Referee makes a written determination, including Findings of Fact and Conclusions of Law.

7. The Unemployment Compensation Process One great benefit in defending and appealing a claim is that if you’re successful and win, it may discourage workers from filing wrongful termination claims in the future Workers can be disqualified for unemployment benefits if they: o Were fired for misconduct. o Quit without good cause. o Turn down a suitable job offer during the unemployment period. o Have made false claims or omitted information on their unemployment claim.

8. How to Defend A Claim for Unemployment Compensation How to best position your school district to win an UC claim: o If the employee is terminated for violating a policy, establish the following: Employee was repeatedly warned that he or she was violating the policy, and warned of the consequences of further violations. The importance of the policy to your school district: o Why was it necessary to terminate the employee? o How did the employee’s policy violation hurt your school district? Use live witnesses and documents o Witnesses and the Appeals Referee hearing should have personal knowledge of the events leading to the employee’s termination. o Establish a “chain of custody” (and ask, who is the best witness?) o A typical scenario to establish: Employee was hired and received a copy of the employee handbook The handbook contains the policy the employee violated Employee acknowledged receipt of the handbook Supervisors spoke about the policy Supervisor disciplined employee for violating the policy and warns of future consequences Supervisor speaks to HR about employee’s violation of policy Employee violates the policy again and terminated.

9. How to Defend A Claim for Unemployment Compensation How to best position your school district to win an UC claim: o Establish any requirements particular to your school district Particularly important with safety or security issues Assume the Appeals Referee will have no idea why these issues are important to your school district; explain them in elementary terms o “Everyone must wear protective equipment because….” o “There are security regulations our employees are subject to because…” o Document employee’s misconduct These notes can be introduced at Appeals Referee hearing o Again, have the author testify about the notes (why take notes, are they accurate, do they reflect what was said) o If school district records are introduced, have someone with knowledge of the records, as opposed to a custodian, introduce them.

10. How to Defend A Claim for Unemployment Compensation Document employee’s misconduct o What is good documentation? Something an outsider reader can pick up, read and understand the situation without a great deal of other explanation. Who was involved? What happened? When did it happen? What are consequences of repeated mistakes? What policy was violated and what is the harm? Time, date and parties are noted All attachments included (if there are any)

11. The Unemployment Compensation Process Whenever an employee quits or is fired, gather all records that may influence an unemployment claim. For employees who are fired for misconduct, documents should include written records of warnings and progressive disciplinary actions taken. If there are any witnesses to the employee’s actions that led to the termination, get written statements from them.

12. Enough of the Formal Process

13. Interesting excerpts from MS Department of Employment Security Question: How can the claimant collect benefits if he or she was such an unsatisfactory employee? Answer: An employee's eligibility and employer's chargeability are determined solely by the Unemployment Insurance Act. The employer may have been entirely justified in discharging an employee, but the claimant will not be disqualified from collecting benefits unless disqualifying conduct under the Act is proved.

14. Interesting excerpts from MS Department of Employment Security Hearsay testimony, that is, repetition of statements made by persons who are not present at the event, may be accepted. However, direct testimony is considered better evidence. Whenever possible, have at the hearing the person or persons who witnessed the events in question or who have first-hand knowledge. This means that the testimony of the foreman or supervisor is usually more valuable than that of a personnel director. If the employer discharged the claimant, it must be proven that job related misconduct existed.

15. Interesting excerpts from MS Department of Employment Security An employee shall not be found guilty of misconduct for the violation of a rule unless: o The employee knew or should have known the rule o The rule was lawful and reasonably related to the job environment and job performance o The rule is fairly and consistently enforced If a claimant left work voluntarily, it is his responsibility to prove that he left for sufficient cause connected with the job. Marital, filial or domestic circumstance is not considered good cause.

16. Examples of Claims Biloxi School District has dealt with: Know it All Summer Break Holiday Relocation Military Relocation Health Related Out of State Reciprocity Still Employed

17. Know it All (This is me) Make sure you know all the facts before the hearing and especially before calling witnesses We requested an appeal after reviewing all of our documentation, because it would be an easy win Teacher resigned, we had several emails and an agreed upon Plan of Improvement However, Dr. Dedeaux, Student Services Director, failed to tell me one small detail

18. Summer Break Was employment temporary in nature ? o Normally not The key is whether they had reasonable assurance of re-employment after summer break. We make sure to Board approve all employees before we get out for the school year. Also attempt to provide them a letter of re- employment before they leave for the summer.

19. Holiday Break Claim

20. Relocation Claim

21. Military Claim

23. Health Related Claim

24. Same claimant waited a month and then had a Physician state they were unable to work and the decision was reversed

25. Out of State Reciprocity Claim

27. Still Employed Claim

28. Still Employed Claim Follow Up

29. Employer Reference Guides http://mdes.ms.gov/media/61189/employerreferenceguide020816_updaterev1.pdf

30. Information provided by: Kevin E. Hyde, Esq. Foley & Lardner LLP