TWC Claims: How Do You Respond to These 247 Caregivers: How Do You Pay Overtime

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TWC ClaimsHow Do You Respond to These?24/7
CaregiversHow Do You Pay Overtime?

• Robin Kennedy, SPHR
• My HR Department

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TWC ClaimsHow Do You Respond to These?
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Types Of Work Separations

• Voluntary Work Separations
• Involuntary Work Separations
• Effect of Voluntary or Involuntary Work
  Separations
• Quit or Discharge - Close Cases
• Ambiguous Notice
• Resignation Without Notice

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Voluntary Work Separation

• Resignation with advance notice - the employee
  gives the employer oral or written notice of
  leaving in advance.
• Retirement - a special form of resignation with
  advance notice that involves satisfying some kind
  of condition for leaving the company with one
  form or another of continued benefits.
• Resignation without advance notice, but with
  notice given at the time of the work separation -
  the employee does let the employer know somehow
  that he or she will not be returning to work.
• Resignation without notice at all - this can
  include walking off the job, job abandonment, and
  failure to return to work after a period of
  leave.

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Involuntary Work Separation

• Layoff, reduction in force, or downsizing - work
  separation due to economic inability to keep the
  employee on the payroll.
• Temporary job comes to an end - work separation
  due to work no longer being available because the
  job is simply finished.
• Discharge or termination for misconduct or
  "cause" - work separation that the employer views
  as somehow being the claimant's fault.
• Resignation in lieu of discharge - same as
  discharge, but the employer gives the employee
  the option of resigning as a face-saving option.
• Forced retirement - may be akin to an economic
  layoff or a discharge for cause, but in this
  situation, the employee is allowed to qualify
  under a retirement plan.
• "Mutual agreement" - in most cases, this form of
  work separation is viewed as involuntary, since
  it is usually initiated or encouraged by the
  employer.

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Effect of Voluntary versus Involuntary

• Voluntary work separation
• Under the Texas Payday Law, an employee who
  leaves voluntarily must receive the final pay no
  later than the next regularly scheduled payday
  following the work separation.
• In an unemployment claim, the claimant who
  voluntarily left employment faces the burden of
  proving good cause connected with the work for
  leaving the job.
• In many companies, employees who leave
  voluntarily receive different benefits than those
  who are involuntarily separated, depending upon
  the terms of the company's benefit plan.
• Involuntary work separation
• Under the Texas Payday Law, an employee who
  leaves involuntarily must be given the final pay
  no later than six calendar days following the
  last day of work.
• In an unemployment claim, the employer that
  initiated the work separation has the burden of
  proving misconduct connected with the work as the
  reason for discharge.

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Quit or Discharge

• This determines who has the burden of proof It
  falls on the party that initiated the work
  separation.
• If the claimant was fired, the employer has the
  burden of proving
• That the discharge resulted from a specific act
  of misconduct connected with the work that
  happened close in time to the discharge and
• That the claimant either knew or should have
  known she could be fired for such a reason.

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ProblemAmbiguous Notice

• Solution
• Always Give Response
• In Writing

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Problem Resignation Without Notice

• Solution
• Always Get
• Resignation In Writing

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TWC Claims Process

• Initial Claim
• Initial Determination
• Appeal Tribunal
• Commission Appeal
• Motion for Rehearing
• Court Appeal

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Initial Claim

• Employer has 14 days from the date of the claim
  to respond
• Respond to TWC by
• Mail
• Fax
• Hand-delivery
• Telephone
• Internet site

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Initial Claim

• Be brief
• Be factual
• Be specific
• Provide documentation if appropriate, i.e., copy
  of claimants letter of resignation

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Initial Determination

• If initial determination indicates that claimant
  will draw benefits, an employer can appeal with
  14 calendar days of the date the ruling was
  mailed
• If employer filed late response, employer should
  allege some problem outside its power to control
  as the reason for not protesting claim in timely
  manner

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Appeal Tribunal

• Telephone hearing is norm
• Only firsthand testimony allowed
• Documentary evidence may be entered, but copies
  must have been sent ahead of time to both Hearing
  Officer and Claimant
• Both parties may offer
• Direct testimony
• Conduct cross-examination
• Make concluding statements
• Written decision within 1 week either affirming,
  reversing, or modifying the determination

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Commission Appeal

• Must be done with 14 calendar days of the date
  the hearing officers decision is mailed
• This appeal is heard by the Appeal Tribunal (3
  member Commission)

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Motion for Rehearing

• Must be filed with 14 calendar days of the date
  the original Commission decision is mailed
• Must offer new evidence
• Give a compelling reason why it could not have
  been offered earlier, and
• Show specifically how it could change the outcome
  of the case

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Court Appeal

• Losing party may file a court appeal within 14
  calendar days
• No right to jury trial
• Parties may put on their entire cases again for a
  judge
• Judge makes no finding of fact, but decides as a
  matter of law where substantial evidence exists
  to uphold the TWC ruling.
• Courts decision may be appealed as in any other
  civil case

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Evidence Needed for a UI Claim and/or Appeal

• Firsthand testimony from witnesses with direct,
  personal knowledge of the events leading to the
  claimant's work separation, i.e., "the ones who
  saw it happen".
• Documentation of policies, warnings, complaints,
  attendance, timecards, pay-related records, or
  any other subjects relating to the claimant's
  work separation.
• In a discharge case, evidence relating to a
  specific act of misconduct that happened close in
  time to the discharge, i.e., the event that
  precipitated the discharge (the so-called "final
  incident"), as well as evidence showing that the
  claimant either knew or should have known that
  discharge could occur in a resignation case,
  evidence relating to whatever motivated the
  claimant to resign.

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Mistakes That Are Easy To Avoid
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Prior to Claim

• 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

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Terminating An Employee In The Heat Of The Moment

• Even in Texas, with employment-at-will doctrine,
  employers may pay a price
• Discharge must be proven to be a specific act of
  misconduct connected with the work AND
• Claimant either knew or should have know he could
  lose his job for this reason

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Failing to discuss the problem with the employee
prior to termination

• TWC claim examiners and hearing officers
  generally look with favor upon employers who
  confront the soon-to-be-former employee with the
  problem and let the employee try to explain
• avoids the related problem of giving a false
  reason for termination (almost always fatal to a
  case)
• there is always the possibility that the employee
  will point out something that will make the
  employer realize that discharge might not be
  appropriate
• gives the appearance of fairness, which is
  important from a perception standpoint

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TWC people processing the UI claims are
themselves employees, not employers, and they
generally have a well-developed idea of what
they consider fair and right. Good, bad, or
indifferent, that is the reality, so it should be
taken into account.
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Terminating An Employee Without Reasonable Warning

• Test is whether a "reasonable employee" could
  have expected to be fired for the reason in
  question, the employer has to show that either
  the employee did something that was so bad, he
  had to have known he would be fired without prior
  warning, or
• That the employee had somehow been placed on
  prior notice that he could lose his job for such
  a reason. "Prior notice" would come from a policy
  expressly warning of discharge or from a
  (preferably written) warning to the effect that a
  certain action or lack of action would result in
  dismissal.

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Ignoring Company Procedures Or Prior Warnings

• Employer must show that the claimant either know
  or should have known that her job was on the line
  for the reason in question. That will be
  impossible to show, for example, if the employer
  fires the employee without giving the employee
  the benefit of progressing through whatever
  progressive disciplinary process the company
  usually follows.
• Problem also shows up if an employee gets a
  written warning stating that it is the "first
  written warning", and the list of further steps
  on the form shows a "second written warning" or
  "final warning", but the employee is fired for a
  subsequent offense without getting the
  (apparently promised) intermediate or final
  warning
• The point is that the employer should try its
  best to do what it says it will do. If employees
  have been led to believe that certain steps will
  occur prior to termination, follow those steps,
  or else be prepared to lose the UI claim.

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Taking No Action When Employees Complain

• Nothing stirs the sympathy of TWC examiners and
  officers like the story of a claimant with a
  grievance, whose employer either took no
  effective action or retaliated somehow against
  the claimant
• Complaints usually do not come out of thin air.
  Listen, investigate, act, and document your
  actions.
• Employers responsive to employee concerns face UI
  claims with more confidence, AND generally have
  fewer worries about employee turnover and union
  activity.

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Post-claim

• Missing a claim response or appeal deadline
• Assuming that if TWC does not recontact the
  company, the claim has been dismissed or denied
• Changing the explanation for the work separation
• Failing to prove the case against the claimant
• Failing to present firsthand testimony from
  eyewitnesses

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Missing A Claim Response Or Appeal Deadline

• A late claim response means that the employer
  waives any rights it has in the claim, including
  the right to protest chargebacks to its tax
  account
• Filing a late appeal means that the TWC must
  dismiss the appeal without considering the
  underlying merits of the case.
• There is no alternative to filing claim responses
  and appeals on time.

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Assuming that if TWC does not recontact the
company, the claim has been dismissed or denied
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Changing the explanation for the work separation

• Many TWC people, quite frankly, take a changed
  work separation explanation as a sign that the
  employer is not credible and is just looking for
  the right words to get the claimant disqualified.
• Study the facts behind the work separation
  carefully and get it right the first time.
• If the deadline is near and the employer needs
  more time, it can file a quick timely response
  notifying the claim examiner that the employer
  wishes to be an interested party and will file
  more information as soon as possible.

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Failing to prove the case against the claimant

• In a discharge case, the burden of proving
  misconduct is on the employer
• Employer must show that the separation resulted
  from a specific act of misconduct connected with
  the work that happened close in time to the
  discharge and that the claimant either knew or
  should have known she could lose her job for such
  a reason

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Failing to present firsthand testimony from
eyewitnesses

• The only exception is in the area of drug
  testing, where the results of a confirmation test
  indicating the presence of prohibited substances
  in the system of the claimant is accepted over
  the sworn firsthand denial of drug use by the
  claimant.
• If the claimant denies the misconduct alleged,
  and the employer is unable to present firsthand
  testimony to prove its allegations, the employer
  will lose.

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Conclusions

• Prepare for and document termination
• Report termination data to TWC in clear,
  accurate, and timely manner
• Provide documentation and first-hand testimony if
  employer account is in dispute

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Q A
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24/7 CaregiversHow Do You Pay Overtime?
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Fair Labor Standards Act

• Overtime Provisions
• http//www.dol.gov/elaws/overtime.htm

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FLSA Overview

• Covered, nonexempt workers are entitled to a
  minimum wage of not less than 5.85 per hour
  effective July 24, 2007 6.55 per hour effective
  July 24, 2008 and 7.25 per hour effective July
  24, 2009.
• Nonexempt workers must be paid overtime pay at a
  rate of not less than one and one-half times
  their regular rates of pay after 40 hours of work
  in a workweek.

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FLSA Exemptions

• Executive, administrative, and professional
  employees (including teachers and academic
  administrative personnel in elementary and
  secondary schools), outside sales employees, and
  employees in certain computer-related occupations
  (as defined in Department of Labor regulations)
• Employees of certain seasonal amusement or
  recreational establishments, employees of certain
  small newspapers, seamen employed on foreign
  vessels, employees engaged in fishing operations,
  and employees engaged in newspaper delivery
• Farmworkers employed by anyone who used no more
  than 500 man-days of farm labor in any calendar
  quarter of the preceding calendar year
• Casual babysitters and persons employed as
  companions to the elderly or infirm.

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Computing Overtime Pay

• Overtime must be paid at a rate of at least one
• and one-half times the employees regular rate of
  pay for
• each hour worked in a workweek in excess of the
• maximum allowable in a given type of employment.
• Generally, the regular rate includes all payments
  made by the employer to or on behalf of the
  employee
• (except for certain statutory exclusions). The
  following
• examples are based on a maximum 40-hour
• workweek applicable to most covered nonexempt
  employees.

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FLSA Home Health Agencieshttp//www.dol.gov/es
a/whd/regs/compliance/whdfs25.pdf
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Companionship Services

• Services for the care, fellowship, and protection
  of persons who because of advanced age or
  physical or mental infirmity cannot care for
  themselves.
• Such services include household work for aged or
  infirm persons including meal preparation, bed
  making, clothes washing and other similar
  personal services.
• General household work is also included, as long
  as it does not exceed 20 percent of the total
  weekly hours worked by the companion.

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Companionship Services Exemption

• Employees providing "companionship services" as
  defined by the FLSA need not be paid the minimum
  wage or overtime.
• Certified nurse aides and home health care aides
  may be considered exempt from the FLSA's wage
  requirements depending upon the nature of their
  work.

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Domestic Service

• Persons employed in domestic service in
  households are covered by the FLSA. Nurses,
  certified nurse aides, home health care aides,
  and other individuals providing home health care
  services fall within the term "domestic service
  employment." The overtime standard does apply.

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Willful Violations

• Willful violations may be prosecuted criminally
  and the violator fined up to 10,000.
• A second conviction may result in imprisonment.
  
• Employers who willfully or repeatedly violate the
  minimum wage or overtime pay requirements are
  subject to a civil money penalty of up to 1,100
  for each such violation.

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Q A
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Robin Kennedy, SPHR

• www.myhr.biz
• robin.kennedy_at_myhr.biz