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Employers Take Charge An Overview Adjudication & Appeals
Stephen Harris, Jason Hull & Renita Ward Williams
Office of Unemployment Insurance Administration
Introducing HiRE
What is HiRE?
Helping Individuals Reach Employment
Integrated Web-Based Automated System
Provides seamless customer service for – Employers
– Claimants
– Job Seekers
– LWC Staff
What’s in it for Employers?
Each employer will have a web portal into HIRE where
he can transact all LWC-related business – Quicker Access to Job Seekers
– File Quarterly Wage and Tax Report
– Pay Taxes
– Get forms, information, and reports
– Post a Job Order
– Register for Unemployment Tax Account
– Search Resumes
– File an Appeal
– View Benefit Charge Statements
– View Annual Tax Rate Notifications
– Ask questions
– And More……
What’s in it for Employers? (cont’)
HiRE’S no cost features available now
Matches job opening with the skills and experience of job seekers who
use our services
Presents your job posting to qualified and available job seekers who live
where you need them
Enables you to select talent pool of potential candidates with relevant job
experience
Provides 24-hour access to all services anywhere with an internet
connection
What’s in it for the JobSeekerClaimant?
HiRE will treat the job seeker/claimant
as the same individual
HiRE will provide meaningful
opportunities for the individual to search
for work, complete a resume, etc. at the
same time as filing a claim
This is a true definition of seamless
customer service as HiRE provides the
functionality for the claimant to become
a job seeker immediately.
We are taking what we used to see as
two customers and uniting them into
one….the “JobSeekerClaimant”
What’s in it for the JobSeekerClaimant?
Each JobSeekerClaimant will have his own web portal
into HiRE where he can transact all business: – File an Initial UI Claim
– File a Weekly UI Continued Claim
– Perform Job Search
– Complete a Resume
– Register for Work
– File an Appeal
– Get forms and information
– Utilize the Virtual One Stop services
– Much More
What’s in it for all Louisianans?
Our state will become a
better place to do business
Reduced Unemployment
Rates
Increased Workforce
Capacity
Reduced Duration of UI
Claims
Stronger Trust Fund
Accuracy and Timeliness
Contact Information
Stephen C. Harris
Employer Outreach Liaison
Office of UI Administration
Louisiana Workforce Commission
(O) 225-342-1007
(F) 225-342-5965
ADJUDICATION Jason Hull, ORS Supervisor
ADJUDICATION AND THE
EMPLOYER
State and federal guidelines are applied by adjudication in order to determine the facts of a separation.
Final incident must be identified, reason determined and contributing factors addressed.
For discharge, the weight of evidence for misconduct connected to the employment must be provided by the employer.
Adjudication (cont.)
Instances of voluntary leaving/quit, the weight of
evidence must be provided by the employee to prove a
substantial change made to the employment by the
employer.
Document – Document – Document
It is very important that documentation be provided to
support your allegations.
Hiring agreement, contractual points, warnings, write-
ups, counseling, policy, signed acknowledgement of
policy are some of the documentation that would help
to prove your case.
Adjudication cannot use a “laundry list” of reasons for
discharge.
Adjudication (cont.)
EXAMPLE:
We fired Suzy-Q because she was late all the time,
made mistakes on reports, missed work a lot, argued
with a co-worker, wore inappropriate clothes, had her
cell phone in a meeting, was on the office phone for
personal business, played on the Internet and talked
back to her supervisor.
Which one of these was the final incident???
Adjudication (cont.)
All of those instances of Suzy-Q’s failure to be a good
employee may have contributed to your decision.
However, you must be able to say, “This was the one
that made us decide to let her go.”
Any prior warnings for the same type of problem can
be used to support the discharge. You cannot use
unrelated warnings.
Adjudication (cont.)
If an employee notifies you they are leaving, get the
notice in writing if possible.
They must be allowed to work out their notice, or paid
in lieu of working the notice.
Failure to allow them to work out the notice without
wages in lieu changes the separation to a discharge
according to agency policy. Since there was no
misconduct, the employee would be cleared to draw
benefits.
Adjudication (cont.)
In instances where the employee stops reporting with
no reason given, document the date.
Document any attempts to contact the employee to
discuss his/her failure to report or information given by
others.
It is important to establish the employee’s intent to
leave your employ. We cannot assume intent if
circumstances beyond employee’s control caused the
problem.
Adjudication (cont.)
All expectations and limits should be clearly communicated to employees. EXAMPLE: Schedule of up-coming assignments/times should be posted each week/month.
Verbal warnings should be noted in a file.
Witness statements should be documented.
In cases of theft, patient abuse, loss of reputation to the company the documentation of misconduct must be absolute-all wage credits are removed.
Adjudication (cont.)
Drug related misconduct must be documented with
policy, signed acknowledgement of policy/random
testing.
Test results with chain of custody must be provided.
These results must provide the nanograms, not just
negative/positive in cases of possible Passive
Inhalation.
Adjudication (cont.)
Was there a genuine offer of work?
Details of the job offer should include where, when, rate of pay, duties.
Was the offer successfully conveyed to claimant?
Must be directly communicated to individual.
Method of conveying offer/ referral
Verification of job interview/contact
Refusal of Suitable Work
Refusal of Suitable Work (cont.)
Was the job suitable? Consideration given to claimant’s:
Skills, Training, Experience, and Capabilities
Was the job substantially less favorable than those prevailing for similar work in the labor market? Wage?
Was the position vacant due to a strike? Was the claimant required to join a union or to resign or refrain
from joining a labor organization?
APPEALS Renita Ward Williams, Administrative Law Judge Advanced
General Rule
The best practice and approach to successfully
defend against unemployment claims occurs
before a claim is filed.
Avoid Easy Pitfalls
Actions to Avoid Prior to Separation
Terminating an employee in the heat of the moment;
Failing to discuss the problem with the employee prior
to termination;
Terminating an employee without reasonable warning;
Ignoring company procedures or prior warnings;
Taking no action when employees complain.
Avoid Easy Pitfalls
Post-Claim Actions to Avoid
Missing a claim response or appeal deadline;
Assuming that if LWC does not recontact the company, the claim
has been dismissed or denied;
Changing the explanation of the work separation;
Failing to prove the case against the Claimant;
Failing to present firsthand testimony from eyewitnesses.
Building Your Case
Questions you must ask:
Was there a specific incident close in time to the discharge?
Can you show that the employee violated a known policy or law?
Are witnesses available?
Do you have documentation to support your reason for termination?
Did you submit a copy of your policy and/or procedure to the Agency and/or the Appeals Tribunal?
Building Your Case
Questions you must ask (con’t):
Did the employee progress all the way through the disciplinary
system?
Was the employee confronted with the problem and given a chance to explain?
Did you address discrimination issues?
Does the employee belong to a protected class?
Building Your Case
Questions you must ask (con’t):
Discrimination issues (con’t):
Was the treatment given to the employee different from that given to unprotected class (Did race, gender, religion, disability, national origin, retaliation/reprisal play a factor in your treatment of the employee)?
Was the treatment given to the employee different from that given to other workers in general?
Was the employee involved in a protected activity?
Involved in a claim over wages, workers’ compensation, or discrimination?
Building Your Case
Questions you must ask (con’t):
Jury or military duty?
Voting?
Refusal to commit an illegal act?
Inquiring about the legality of an instruction from the employer?
Whistleblowing?
When in doubt about the above, seek legal counsel prior to taking any adverse job action.
Always respond completely and with as much detail as possible to the initial request for separation information.
Building Your Case
Documentation of disciplinary measures is very important for
use in justifying a personnel action and defending against
claims.
Give the employee a copy, and place a copy in the personnel file;
Have the employee or a witness sign the warning;
The warning should clearly let the employee know what the next step will be if
the problem continues:
Follow your established policies and procedures as closely as possible. Do
not issue warnings until you are ready to take action and mean it;
Do not issue a “final warning” until and unless you are ready to terminate the
employee upon the very next occurrence.
Include an “I disagree” signature line to obtain documentation from employees who refuse to sign.
Absenteeism: The 500 Lb. Gorilla in the Room
What the law says… Louisiana jurisprudence has held that an employer may discharge an
employee for excessive absence from work, but there is no misconduct if
the absences were for valid reasons, beyond the control of the
employee and with proper notice.2
2. See, City of Monroe v. Tolliver, 954 So.2d 203 (La.App. 2 Cir. 3/7/07). The fact that the
employer's decision to discharge employee for violating employer's attendance policy was
legitimate, justifiable, and reasonable did not necessarily classify the conduct giving rise to the
discharge as “misconduct” which would disqualify the employee from receiving unemployment
benefits. See also, Craighead v. Administrator Dept. of Employment Sec. of State of La., 420
So.2d 688 (La., App. 2 Cir. 1982). Claimant's involuntary absence from work due to acute
alcoholism beyond his control did not constitute grounds for disqualification from
unemployment benefits.
So… how does one defend against an
absenteeism claim?
1) Ensure that your policy covers absenteeism and tardiness.
– Also include answers to questions such as: How much advance notice should be given? To whom should the notice be given? Is it alright to leave a message? Who does the employee contact if his supervisor is unavailable?
2) Do not use FMLA-covered absences as a basis for any disciplinary action or in the calculation of “chargeable” and “non-chargeable” absences.
3) Keep in mind that though your company may utilize a “point” or “no fault” system, Louisiana will not disqualify a claimant if the final absence was for a valid, documented reason.3
4) Document!!!
– Fully document attendance and hours worked;
– Decide if you will require a doctor’s excuse for medical absences and include that language in your policy.
5) Do not delay termination if file contains necessary documentation.
3. Pursuant to the Federal Discharge Guide Sheet of the 301 Handbook , “It is necessary to establish why the employer decided to
discharge the claimant on that particular day…. The discharge must be reasonably related in time to the act causing the separation.
Misconduct is not established if a substantial time period has elapsed between the act or when the employer was aware of the act
and the separation. See also, Harris v. Houston, 97-2847(La. App. 2d Cir. 11/4/98), 722 So.2d 1042; Sledge v. Whitfield, 531 So.2d
291 (La. App. 2d Cir. 1988); Gunderson v. Libby Glass, 412 So.2d 656(La. App. 2d Cir. 1982); Craighead v. Administrator v.
Administrator Dept. of Employment Sec., 420 So. 2d 688(LA. app/. 2d Cir. 1982.
Misconduct: Explaining the Confusion
Under Louisiana case law, a violation of a company’s policy or rule does not per se constitute misconduct. – Louisiana jurisprudence has held that whether a policy violation
warrants withholding unemployment benefits is a question which must be determined not by examining the employer’s rule but by statute.4
– Rationale: An employer’s employment decision can be legitimate, justifiable, and reasonable without the conduct giving rise to the discharge constituting "misconduct" which would disqualify the employee from receiving unemployment benefits.5
4. See, e.g., Lafitte v. Reliant Energy Resource Corp., 37,709 (La. App. 2d Cir. 10/17/03), 859 So.
2d 233 and Savoie v. Labove, 96-952 (La. App. 3d Cir. 3/5/97), 692.So.2d 626.
5. City of Monroe v. Tolliver, 41,969 (La. App. 2d Cir. 3/7/07), 954 So. 2d 203.
Misconduct: Explaining the Confusion
THE BURDEN OF PROOF RESTS WITH THE
EMPLOYER TO PROVE MISCONDUCT. 6
Proof must be by a preponderance of the evidence.7
Hearsay alone is not competent to overcome an employee’s direct, contradictory testimony.8
6. Buggage v. Assumption Parish Sherriff Dept., 05-1058 (La.App. 1st Cir. 5/5/06), 934 So.2d
180,181; Weatherly Labs v. Adm'r, Office Emp. Sec., 94-317 (La.App. 3 Cir. 11/2/94), 649 So. 2d
623.
7. Id.
8. Bean Dredging Corp. v. Administrator, Div. of Employment Sec., Dept. of Labor, 679 So.2d 1019,
96-76 (La.App. 3d Cir. 8/28/96); Glazer Steel Corp. v. Administrator, Office of Employment
Security, 98-0441(La. App. 4 Cir. 9/30/98), 719 So. 2d 674, 679.
Misconduct: Explaining the Confusion
The circuits are divided as to the interpretation of misconduct.
– First Circuit Court of Appeal
• Applies the statutory definition of “misconduct” – Misconduct is “mismanagement of a position of employment by action of inaction,
neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.”
– The statutory definition encompasses intentional acts and acts of omission (negligence).
• Has held that the 1990 amendment to La. R.S. 23:1601(2) overruled the jurisprudential definition (i.e., “willful and wanton”) of misconduct9
9. See, Fontenet v. Cypress Bayou Casino, 06-0300(La. App. 1st Cir. 6/8/07), 964 So. 2d 1035.
Misconduct: Explaining the Confusion
– Second Circuit, Third Circuit, Fourth Circuit, and Fifth Circuit
• Still apply the jurisprudential standard (i.e., “willful and wanton” and
“intentional and substantial disregard”)
• Only misconduct which constitutes intentional or substantial
disregard of employer’s interests will defeat employee’s entitlement
to unemployment benefits.10
• Have expressly refused to apply the statutory definition
10. See, e.g., Savoie v. Labove, 96-952 (La. App. 3d Cir. 3/5/97), 692. So.2d 626.
Misconduct: Explaining the Confusion
In the past, Administrative Law Judges (ALJs) have applied the standard of misconduct as used by the circuits in which the claimant resides.
Currently, ALJs apply the statutory definition of misconduct without regard to circuit construction. – Legislation is a solemn expression of legislative will.11
– When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.12
11. La. C.C. art. 2.
12. La. C.C. art. 9.
The Appeals Process
Identify individuals with firsthand knowledge of the events.
– If necessary, ask the Appeals Tribunal to issue a subpoena for their appearance.
Gather relevant documents (i.e., disciplinary records, policy statements, handbooks, witness statements, attendance records, etc.) pertaining to their separation.
– If not submitted at initial protest level, then submit to Appeals Tribunal and claimant prior to hearing.
Call in to confirm your participation in the hearing.
– Request a postponement if your firsthand witness is unavailable.
The Appeals Process
Be available at the designated time.
Prove your case. Don’t rely on the
administrative law judge to carry your burden
of proof.
If you disagree with the outcome, be sure to
appeal within the appropriate time delays.
Coming Soon: Online Report of
Change Expected to launch
later this month
Access through secure login to Tax Services
Current print form ES4A will be eliminated and no longer accepted
Features of Online Report of
Change
Ability to make changes to address, phone number, etc. with no need for staff assistance
Other changes can be submitted online for staff to research and resolve
Will require e-mail address to be included for future reference
Other LWC Services
Other LWC Services (cont.)
