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How Can I Win an Unemployment Claim?

April 20, 2009

Many employers believe that no matter what the reason for termination, the ex-employee will always be given unemployment benefits. However, there are a number of things that you as an employer can do to assure that the only claims to be charged to your account are the ones that are known to be valid. To do this, you must (1) have a good understanding of the system; (2) control the procedure for termination; (3) maintain documentation and respond promptly and in detail to notices of claims filed; and (4) appeal whenever there are grounds to do so.

Funding Unemployment Compensation – Employer Taxes

Unemployment compensation claims are administered by the state of Florida through a department now known as the Agency for Workforce Innovation (AWI). The specific formula for calculating employer tax rates is complex but the heaviest weight in the formula is for the “Individual Benefit Ratio” – which from a practical standpoint means that the employer can impact its tax rate primarily by the control and management of claims.

Claims management consists of three important phases: (1) management of a controlled termination process; (2) prompt and complete response to the “Notice of Unemployment Compensation Claim Filed” (UCB-412); and (3) understanding and use of the appeal process. Claims management is not a matter of luck, but a matter of understanding the process and being diligent in documentation and preparation.

The Tie Goes to the Claimant

The first rule the employer must understand is that the playing field really is not level. Florida Statutes

443.031, “Rule of liberal construction” state that “This chapter shall be liberally construed in favor of a claimant of unemployment benefits who is unemployed through no fault of his or her own.” From a practical standpoint, this means that the employer will always bear the burden of proving its contention that the claimant should be disqualified, and if the employer does not do so conclusively, the claimant will be found eligible for benefits. The information you provide the AWI must be clear, specific and well documented. You simply will not prevail in initial claim response or in appeal by making vague or unsubstantiated statements. If the employer says “X” and the claimant says “Y” and neither has supportive evidence and both are reasonably believable – the claimant will not be disqualified.

There are numerous reasons a claimant may not be eligible for unemployment benefits, but the two primary reasons for disqualification are that the claimant (1) resigned without good cause attributable to the employer or (2) was discharged for misconduct in connection with their work. Those are, in general, the only two factors over which the employer has any control, and the ones to which most effort should be directed.

You can’t fire me – I quit!

To disqualify a claimant for benefits, the employer will usually have to provide evidence that the former employee quit of his own choice or was fired for misconduct. If the employer does not have a controlled and documented separation process, in many instances s/he will not know whether the employee quit or was fired. Consider a common circumstance of an employee no-call no-show. Is s/he fired for attendance violation or did s/he quit? What about the employee who gives notice and the employer says “go ahead and leave today?” The employer must know and document the accurate reasons for all terminations.

Take the UCB412 Seriously

The majority of unemployment claims are “won” or “lost” at the time of termination and with the response to the Notice of Claim (UCB 412 form). For example, a supervisor may be terminating an employee for poor attendance. If s/he tells the employee “I am terminating your employment because you violated our attendance policy” then the employee is likely to tell the claims adjudicator that and his or her statement will match the employer’s response, probably resulting in disqualification. On the other hand, if the supervisor says something like, “I’m tired of your being out – we don’t need you here anymore,” then that could be interpreted as a layoff, probably resulting in a need for appeal. Further, in responding to the Notice of Claim the employer should be as specific as possible – “violation of work rule” is probably insufficient unless the claimant has been unusually candid with the adjudicator. Use additional space or send along a detailed statement if necessary. Use terms that make your facts clear. For example, “discharged for violating written company policy against personal use of company credit card” is better than “violated credit card policy.”

Don’t Fight All Claims

Success in managing unemployment claims is also dependent on knowing which ones to contest and which ones to allow. If the real reason for termination is poor job performance or reduction in force, the claimant will not be disqualified and the employer should not attempt to falsely characterize the termination into a discharge for misconduct.

Appeal When Appropriate

Your former employee may or may not be eligible for unemployment compensation, depending on the circumstances under which s/he left the latest employer and whether or not s/he is available for work and seeking work. At the time s/he files a claim, a determination (decision on eligibility) is made by a Claims Adjudicator, based on information that the claimant and the employer provide. All comments from the claimant and employer are taken at face value, and assumed by the Adjudicator to be true. If there is no material conflict in the facts, or if the employer fails to respond in the required length of time, the Adjudicator makes a decision on whether or not the claimant is eligible to receive unemployment benefits, and whether the employer will be charged. If either party is dissatisfied with the determination, s/he can file an appeal within 20 days and a hearing will be scheduled.

The most frequent reasons why the employer needs to appeal are:

1. Failure by the employer to respond in time

2. Insufficient information provided to show claimant should be disqualified

3. Insufficient documentation for reasons provided

4. Misleading information provided, or incorrect reason for termination provided

5. “Tie goes to the Claimant”

At an appeals hearing, we are not necessarily arguing whether or not the claimant actually receives benefits since that is also based on other factors (such as being able and available for work, etc.) but whether s/he should be disqualified from receiving benefits based on the separation from our company and whether our account should be charged for any benefits received.

For more information contact Joe Godwin.