Red Carpet Out & Preparing for Unemployment Hearings Steve Martinez & Meghan Jackson RHRD’s
Agenda • • • • • •
Overview of the Types of Terminations Terminating Employment with Dignity & Respect Introduction & Overview of Unemployment Eligibility and Disqualifying Factors Documentation Hearings – Process, Tips
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Types of Termination of Employment • Voluntary – Professional (Dissatisfied with work/company, Another Job) – Personal (Relocation, School, Medical/Family, Retirement) – Job Abandonment, NC/NS
• Involuntary – – – –
Violation of Company Policy/Gross Misconduct Reduction in Force Ineligibility Temporary Assignment Ends
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The Process- Termination of an Employee With Dignity and Respect Take as much time to fire as you did to hire. Document performance to support the decision. Always tell the truth. Fire the employee for what you can prove they have done. There should be two to deliver the news. Document the termination. Handle the money well (severance, owed wages, vacation, commissions, etc.) • Terminate in a neutral site such as a board room or conference room. • Shut up. • Post-termination considerations. • • • • • • •
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Do’s • • • • • • • • • • •
Invite Associate to sit Be direct and to the point Explain the actions taken and why Listen to Associate and wait for response Restate the message if needed Use prepared notes Give Specific Termination Date Review separation package (if applicable) Explain logistics for leaving the campus Keep the meeting to 15 minutes Escort the Associate
Don’ts Say “Good Morning”/”Good to see you” Engage in small talk Use humor Be apologetic Defend, justify or argue Threaten Discuss other Associates Sympathize- “I know how you feel” or “You will be just fine” • Try to minimize the situation • Make any promise • Personalize the anger • • • • • • • •
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Key Words & Phrases • Incorporate these words and phrases when speaking with the employee. They’ll definitely grab their attention! – Choice, Chosen to: You’ve chosen to come in late every day this last week. – Termination: Since you continue to come in late after we’ve talked about this, you leave me no choice but to terminate your employment with the office.
Preparing for Unemployment Hearing
“I brought a new life to someone who didn’t think she had one.” Desiree D. Resident Programs Director 8
Introduction • Unemployment law was written during the depression. • Intent was to provide assistance to individuals who are unemployed through no fault of their own. • Completely funded by employer taxes. • Laws vary by state. • Each case is different. 9
Eligibility Factors The claimant must: • Be totally or partially unemployed. • Earn a minimum amount of wages during the base period. • Be unemployed through no fault of their own. • Be able, available, and actively seeking work. 10
Disqualifying Factors
• Voluntary resignation without good cause. • Discharge for misconduct from most recent employer. • Refusal of suitable work. • Individuals between terms who have a reasonable assurance of rehire.
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Voluntary Resignation • Claimant is not eligible unless good cause can be proven by claimant. • In most states, claimant is not eligible unless good work-related cause established. • Claimant must exhaust all opportunities available prior to quitting. • The burden of proof rests with the claimant. 12
Involuntary Resignation • Claimant is eligible unless misconduct can be proven. • Misconduct = deliberate or wanton disregard of the employer’s best interest • Inability to perform job duties to required standards or isolated incidents of poor judgment are not disqualifying. • The burden of proof rests with the employer.
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Proving Our Case • What do we need to successfully protest? • Details, Details, Details. A detailed explanation of the final incident that caused discharge. • Copies of any prior warnings, but most importantly warnings related to final incident. • Copy of policy violated. • Copy of signed acknowledgement that claimant received and understands handbook or policy. • In-service records where policy discussed. • For attendance cases, a copy of the claimant’s attendance record or calendar.
The Unemployment Process • State agency issues a decision to company or company representative advising that claimant either eligible for or denied unemployment benefits. • If the claimant is found eligible, the company will need to determine if appeal is desired. • Conduct an assessment of the case and the chances of a successful appeal along with what and who will need to be available to participate in the hearing.
• A written appeal will be filed with state and a hearing is requested by the company or representative.
The Hearing Process • State sends Hearing Notice with date/time to the Company. • Copy forwarded to community immediately. o Determine any additional evidence to present o Identify who will be witnesses to testify in hearing. Only utilize first hand witnesses to participate in the hearings. o Prep the witnesses. They will introduce all new documents as part of record. o We highly recommend that you utilize legal consultation prior to participating in an unemployment hearing.
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Timing • A separated employee may file for unemployment immediately or may go to work for another company and not file for unemployment until much later. • An employer’s account still may be liable for a portion of the employee’s unemployment benefits up to 18 months after they have separated. • Documentation is critical as the employer must provide the same information whether the claim is filed immediately or months later. 17
Who Should Attend the Hearing The most critical witnesses are those with first-hand testimony of the claimant’s separation. • Person that the claimant notified of resignation • Person who witnessed the final incident that resulted in the termination • A secondary witness with direct knowledge to the incident. Documentation is considered in support of witness testimony not in its place. If there is no longer anyone with first-hand knowledge or we have agreed that the first-hand witness will remain anonymous. Get as close as you can to that first-hand testimony to present during the hearing. • Person that investigated the incident and determined it to be founded in fact. • Person to whom the incident was reported. • Person who addressed issue with the claimant.
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Documentation Documents to Submit Prior to the Hearing •Discharge Termination Document Copies of Warnings Copy of Policy Acknowledgement of Receiving Policy Attendance Records •Quit Copy of Resignation Letter Any written response or resolution to concern voiced by the claimant • During your testimony, the Referee/Hearing Officer might ask you questions about what policies were violated and when/how the claimant was warned. • Specifically reference the documents that you are talking about and ask the Referee if he/she will make them part of the record.
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Burden of Proof • The party who initiated the separation has the burden of proof and presents their testimony first in the hearing. • In a discharge case, the employer has the burden of proof and must establish deliberate misconduct by the claimant. • In the case of a voluntary quit, the claimant has the burden of proof to establish that quitting was due to good cause. 20
At the Hearing Keep in Mind: • If the Referee or the claimant begins referencing or discussing documents you do not have or have not seen, OBJECT TO THEM! • Just like us, the claimant is required to send us a copy of the documents they want considered. • Any documents the claimant will be presented must be sent to the company prior to the hearing. • The company must provide any documents being presented during the hearing must be sent to the claimant prior to the hearing. 21
Tips at the Hearing • Do not get into an argument with claimant – The claimant will probably not be complimentary of you. Don’t take it personally. – When contradictory statements are given, the Hearing Officer’s decision is often based on credibility. Be sure the claimant is the person being defensive or interrupting.
• The closing statement. – A closing argument is not required and has very little impact on the outcome of the hearing. – DO NOT recap the entire case. Keep it simple and to the point. 22
Decision and Appeal • Appeals decision issued either allowing or denying unemployment benefits. • If the decision is unfavorable (benefits are allowed), we can file an appeal to the highest level within the UI arena. • This appeal does not result in a new hearing. • Just a review of evidence already submitted by panel that either affirms or reverses the appeals decision.
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