UNEMPLOYMENT COMPENSATION BENEFITS: ELIGIBILITY AND APPEALS

2. UNEMPLOYMENT COMPENSATION BENEFITS:ELIGIBILITY AND APPEALS Ingrid N. Culp Fredrikson & Byron, P.A.

3. Overview • State unemployment compensation fund • Unemployment compensation taxes • Experience rating • Almost all Minnesota employers • Almost all Minnesota employees

4. Basic Eligibility Requirements • To be eligible for unemployment benefits, five requirements must be met: • Sufficient covered wages in the base period • Unemployed through no fault of own • Able to work • Available for work • Actively seeking work

5. Unemployed Through NoFault of Own Quit = ineligible Quit for “good reason” = eligible

6. “Quit” Defined • A quit occurs when the employee makes the decision to end the employment • Resign to take new job • Move to another state • Stay home with kids • Take care of family • Return to school

7. Quit for “Good Reason” • A “good reason” for quitting is a reason that is: • Directly related to the employment and for which the employer is responsible; • Adverse to the worker; and • Would compel average worker to quit and become unemployed.

8. Quit for “Good Reason” • If subject to adverse working conditions by employer, must complain to employer and give opportunity to correct adverse working conditions before quitting. • A “good reason” quit includes a quit resulting from sexual harassment which employer was aware/or should have been aware, but took no action.

9. “Good Reason” Does NOT Include • A quit because of applicant’s own employment misconduct • A quit because of notification of discharge in future

10. Discharge • Discharged for “employment misconduct” = ineligible • Discharged for any other reason = eligible

11. “Discharge” Defined A discharge occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.

12. “Employment Misconduct” Defined • Any intentional, negligent or indifferent conduct on/off job that displays: • Serious violation of standards of behavior the employer expects; or • Substantial lack of concern for employment.

13. Practice Tip • Importance of documented warning(s) • Signed policy acknowledgments

14. Employment MisconductDoes Not Include: • Inefficiency, inadvertence, unsatisfactory conduct • Single incident with no significant adverse impact on employer • Conduct a reasonable employee would have engaged in • Poor performance • Good faith errors in judgment

15. Employment MisconductDoes Not Include: • Absence because of illness/injury with proper notice • Conduct because of chemical dependency unless previous issues • Conduct resulting from being a victim of domestic abuse

16. Aggravated Employment Misconduct • Gross misdemeanor or felony is interfered with employment or adverse effect on employment; or • For hospital, nursing home or residential care employee, act of patient/resident abuse, financial exploitation, or recurring/serious neglect

17. Conduct After Separationof Employment An applicant shall not be disqualified from benefits for any acts or omissions occurring after the applicant’s separation from employment

18. Application Process Step 1: • Applicant applies for benefits with DEED. • Applicant provides DEED with reason for separation from employment and other information related to his or her employment.

19. Application Process Step 2: • Employer receives written notice from DEED that an application for benefits has been filed. • Employer is asked to confirm wages paid, and has an opportunity to “raise an issue” with regard to the applicant’s eligibility for benefits.

20. Application Process Step 3: • Employer sends completed paperwork to DEED. Practice tip: If contesting, send all relevant documentation to DEED.

21. Application Process Step 4: • DEED issues a written eligibility determination and sends a copy to the applicant and employer. • The notice states the basis for the determination. • The notice includes information regarding appeal rights

22. Levels of Appeal • DEED hearing • Request for Reconsideration • Minnesota Court of Appeals • Minnesota Supreme Court

23. Appeal Process Appealing the initial determination • Applicant/employer may appeal • Appeal filed within 20 days • The determination notice provides appeal instructions

24. The Appeal Hearing Written Notice: • DEED sends parties notice of hearing • Notice includes date, time, judge, and call-in instructions • Majority of hearings conducted over telephone

25. The Appeal Hearing Before the Hearing: • Parties submit exhibits to other party/DEED • DEED provides department exhibits • Subpoenas for witnesses or documents are available • Parties must disclose witnesses and exhibits • Parties follow “telephone hearing” instructions

26. The Appeal Hearing Who should attend the hearing: • Persons with first-hand knowledge of separation circumstances • Applicant’s supervisor • Human resources employee • Other witnesses • Legal counsel?

27. The Appeal Hearing During the Hearing: • Parties present and examine witnesses • Parties offer exhibits • Opposing parties have right to examine witnesses, object to exhibits or testimony and cross-examine witnesses

28. The Appeal Hearing During the Hearing (cont.): • Judge assists parties as necessary • Judge receives any evidence which possesses probative value, including hearsay • Parties may make closing statements

29. The Appeal Hearing During the Hearing (cont.): • All testimony is taken under oath • Hearing is tape recorded • No ruling at hearing

30. The Appeal Hearing After the hearing: • Judge sends written ruling to the parties • Judge’s decision usually mailed within 20 days of hearing • Judge’s decision final unless appealed

31. Request for Reconsideration • Either party may file a Request for Reconsideration to same Judge • Within 20 days • Parties may provide position statement • Right to obtain copy of hearing tape and exhibits

32. Request for Reconsideration • After reconsideration the Judge issues order • Modifying the findings of fact and decision, • Setting aside the findings of fact and decision, or • Affirming the findings of fact and decision. • Judge’s order is final and binding unless appealed

33. Minnesota Court of Appeals • Judge’s decision may be appealed to MN Court of Appeals • Within 30 days • The MN Court of Appeals must hear the case

34. Minnesota Supreme Court • After the MN Court of Appeals rules, a party may petition the MN Supreme Court for discretionary review • Within 30 days • If MN Supreme Court denies review, the decision of the MN Court of Appeals is final

35. Deciding to Contest a Claim Factors to consider: • Setting up a defense • Allegations that company engaged in unlawful activity (e.g., harassment, discrimination, FMLA, whistleblower) • Employer’s response forms the basis of its defense • Deter the employee by sound response • Establish a helpful record for future litigation

36. Deciding to Contest a Claim Use of Testimony Elsewhere. Testimony obtained during the DEED’s appeal hearing may not be used or considered for any purpose, including impeachment, in any non-UIL civil, administrative, or contractual proceeding, except by a local, state or federal human rights agency with enforcement powers.

37. Deciding to Contest a Claim No Collateral Estoppel. No findings of fact or decision or order issued by an Unemployment Law Judge may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, be it contractual, administrative, or judicial, except proceedings provided under the UIL, regardless of whether the action involves the same or related parties or involves the same facts.

38. Deciding to Contest a Claim • Provoking Additional Claims: “All I wanted was my unemployment benefits”

39. Deciding to Contest a Claim • Financial Consequences • Each time an appeal is filed, employer incurs significant costs: • Attorneys’ fees • Lost employee time • Travel expenses

40. Deciding to Contest a Claim • People time • Contesting a claim can be distracting and drain on time • Spend hours compiling documentation, working with company’s attorney and/or preparing appeal papers • Employee witnesses taken away from normal duties to prepare for and testify at hearing

41. Deciding to Contest a Claim • Protecting the System/The Principle of the Matter • The right thing to do • System should not be abused by undeserving employee • It is illegal for employer to collude with a former employee “for the purpose of assisting the [employee] to receive unemployment benefits fraudulently . . .”

42. Deciding to Contest a Claim • Message to other employees • Employees have a general sense of management practices and policies • If an employer often contests claims, employees may be more likely to file for unemployment compensation benefits only when they have a strong claim for eligibility • If an employer rarely contests claims, employees may be more likely to file claims even when they are ineligible for benefits

43. In Summary • Is the employee eligible for benefits? • Fact specific • Statute driven • Case law can shed light • Decide whether to contest/appeal • Understand the appeal process

44. Ingrid N. Culp Fredrikson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Direct: 612.492.7188 Fax: 612.492.7077 E-mail: iculp@fredlaw.com

45. Thank You!

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