NCCUPA-HR Spring Development Workshop The Do’s and Don’ts of Unemployment Benefit Claims April 10, 2015 Paul Holscher Phone: 919-841-3556 Email: paul.holscher@jacksonlewis.com
Henry Ross (“HR”), the HR Director for ABC University, is busy at her desk trying to complete a stack of yearly performance evaluations. HR decides to take a break and check her ever- growing collection of e-mails that is piling up. One of HR’s emails is from Sam, a Supervisor at ABC.
Sam’s job title is Director of Admissions. He was recently promoted to the position. Johnny Dollar, the Associate Director of Admissions, was the only other candidate that applied for the position. Despite the fact that Sam was the most qualified candidate, Johnny has made it known that he is not happy about ABC’s decision to promote Sam instead of him.
In fact, HR had recently told Sam to issue Johnny a Final Written Warning for insubordination. Johnny’s insubordination included failing to respond to Sam’s attempts to communicate and making inappropriate comments, among other things. HR looked back at Sam’s email and noticed that it was titled “ Johnny Dollar Situation - URGENT! ” HR begin to read …
Supervisor Sam’s Email to HR Hi HR: I just got out of a meeting with Johnny. I had set up the meeting to talk about my expectations as his new supervisor. While I was talking Johnny interrupted me and yelled “ I am not going to work for you . ” I replied: “ Johnny, Johnny Dollar- there ain’t no need to holler! ”
Supervisor Sam’s Email to HR I told Johnny that I was his boss and if he wasn’t going to work with me then I would be forced to talk to HR about it. Johnny then said : “That is fine I was going to quit anyway … By the way Sam, have you ever heard that song- ‘TAKE THIS JOB AND SHOVE IT, I DON’T WORK HERE ANYMORE ’ ?!”
Supervisor Sam’s Email to HR I then told Johnny that I hate country music and that I was very, very sad to hear that he wanted to quit … This situation has gone on long enough and Johnny needs to be terminated. His recent behavior is unacceptable and should not be tolerated. I’m going to come by your office in a few minutes to talk about “next steps. ” Sam
HR’s Conference with Supervisor Sam HR had just finished reading Sam’s email when Sam walked into her office. HR: “Johnny’s behavior is ridiculous, especially given the fact that you recently issued him a Final Written Warning. ”
HR’s Conference with Supervisor Sam Sam: “HR, I recall you telling me to issue Johnny a Final Written Warning. I met with him last week and talked about it, but didn’t give him any document... Regardless, Johnny’s behavior hasn’t changed. HR: “Well, sounds like even if you had documented the Final Written Warning it would not have done any good. I agree, we need to terminate Johnny. Can you set up a meeting later this afternoon?” Sam: “Sure thing, HR- I’d be HAPPY to... ”
HR’s Termination Meeting with Johnny Dollar Later that day HR and Sam met with Johnny Dollar in ABC’s conference room. HR : “Johnny, I’m going to get straight to the point. Your recent workplace behavior towards Sam including, but not limited to, your behavior this morning is unacceptable. As a result, ABC is going to …”
HR’s Termination Meeting with Johnny Dollar Johnny interrupted HR -- he was clearly upset... Johnny: “This is no way for ABC to treat an employee and proves that Sam should not have been promoted over me … Regardless, I told Sam earlier today that I was quitting. I have a letter of resignation that I’ve prepared … And by the way I’ve already talked to an attorney, who you’ll be hearing from …” Johnny then walked out of the conference room … .
Request for Separation Information Several days later HR receives a NCUI 500AB: Request for Separation Information from Employer from the Division of Employment Security (“DES”) indicating that Johnny had applied for unemployment benefits. 1. How long does ABC have to respond to the NCUI 500AB: Request for Separation Information from Employer?
Request for Separation Information 1. How long does ABC have to respond to the NCUI 500AB: Request for Separation Information from Employer ? DES sends a NCUI 500AB to employers when an employee files for unemployment insurance benefits. NC employers are required to provide a “timely” response to the NCUI 500AB. A response is “timely” if it is filed with DES within 14 days after the date DES issues the request.* *See, “Guidelines for Preparing An Adequate and Timely Response to the NCUI 500AB: Request for Separation Information from Employer,” available at: http://www.ncesc1.com/HB4/EMPLOYER_memo9.11.13_M .pdf.
Request for Separation Information NCUI 500AB Late responses to the NCUI 500AB will not be considered in the Initial Adjudication phase , but will have appeal rights. In addition, no amendments will be allowed to the NCUI 500AB after the expiration of the 14-day period.
Request for Separation Information In addition to being “timely” NC employers are required to provide an “adequate” response to the NCUI 500AB: Request for Separation Information from Employer. What is an “adequate” response to the 2. NCUI 500AB?
Request for Separation Information “adequate” 2. What is an response to the NCUI 500AB? DES has indicated that an “adequate” response must include sufficient facts to enable DES to make a correct determination for unemployment benefits under the law without having to contact the employer to obtain any additional information.* *See, “Guidelines for Preparing An Adequate and Timely Response to the NCUI 500AB: Request for Separation Information from Employer,” available at: http://www.ncesc1.com/HB4/EMPLOYER_memo9.11.13_M .pdf.
Request for Separation Information “adequate” 2. What is an response to the NCUI 500AB? Quit : (1) a copy of any resignation letter and (2) the specific reason(s) for the resignation. Termination: (1) reason(s) for the separation, (2) copies of policies, handbooks, etc., signed by the employee pertaining to the termination, (3) copies of any warnings/ termination documents, and (4) detailed information about the circumstances leading up to the termination.
Request for Separation Information 3. What else does an employer have to include in the NCUI 500AB submission? The employer must also include: The claimant’s pay rate; 1. 2. The gross amount of vacation, severance and/or sick pay; The claimant’s customary work days and 3. work hours; and 4. The beginning and ending dates covered by any separation payments.
Request for Separation Information Assume that ABC doesn’t respond to the NCUI 500AB: Request for Separation Information from Employer. Also, assume that ABC has a pattern of failing to respond to the NCUI 500ABs that it receives. What does DES define as a “pattern” of failing 4. to respond and what are the consequences for ABC’s failures to respond to the NCUI 500ABs?
Request for Separation Information What does DES define as a “pattern” of failing to 4. respond and what are the consequences for ABC’s failures to respond to the NCUI 500ABs? A “pattern” occurs if the employer fails to adequately/ timely respond to 2 or more NCUI 500ABs or equal to or greater than 2% of the total requests sent to the employer during the prior year, WHICHEVER IS LESS . Failing to respond to the NCUI 500ABs can lead to the employer being penalized by not being able to have its account relieved of charges for benefits that are erroneously paid. See , N.C. Gen. Stat. §96-11.4.
Deadline to Appeal Initial Adjudication Assume that HR timely files the NCUI 500AB with DES. A few weeks later HR is shocked when she receives an Initial Adjudication stating that Johnny has been declared eligible for unemployment benefits. 5. What is the deadline for HR to appeal the Initial Adjudicator’s finding that Johnny is eligible for unemployment benefits?
Deadline to Appeal Initial Adjudication 5. Deadline for HR to appeal? 30 days N.C. Gen. Stat. Sec. 96-15(b)(2): “ The conclusion of the adjudicator shall be deemed the final decision of the Division unless within 30 days after the … mailing of the conclusion … a written appeal is filed... ” Determination By Adjudicator : states- “Appeal Rights Expire: [DATE ]”
Deadline to Appeal Initial Adjudication 5. Deadline for HR to appeal? 30 days Timeliness DES must receive the appeal by the 30-day deadline. The “mailbox rule” no longer applies . There are only 2 exceptions for “late” appeals: (1) Excusable neglect (2) Circumstances beyond the employer’s control
Larry Litigator A few days after HR receives the Initial Adjudication indicating that Johnny is eligible for unemployment benefits his phone rings... On the phone is Larry Litigator who states that he is representing Johnny Dollar …
Larry Litigator Larry informs HR that Supervisor Sam was untruthful in his application for the Admissions Director position, that Johnny Dollar was more qualified, and that Johnny should have been promoted. However, Larry Litigator says to Johnny that he won’t file a lawsuit against ABC and that Johnny will “let bygones be bygones” if ABC agrees not to appeal the Initial Adjudication awarding Johnny unemployment benefits.
Larry Litigator 6. Thoughts regarding Larry Litigator’s proposal?
Recommend
More recommend
