Title: Workforce Development in Indiana
1Workforce Development in Indiana
- How to WIN your unemployment insurance hearing.
2Liberal Construction of Statute
- We start with the proposition the Employment
Security Act should be liberally construed in
favor of employees because it is social
legislation meriting such construction in order
to promote its underlying humanitarian purposes.
Bowen v. RB, 362 N.E.2d 1178 (Ind. Ct. App.
1977).
3Liberal Construction
- What does that mean?????
- Ties go to the claimant!
- The deck is stacked against you!
- BUT THERES STILL HOPE!
-
4DISCHARGE FOR CAUSE
- (d) "Discharge for just cause" as
used in this section is defined to include but
not be limited to (1) separation
initiated by an employer for falsification of an
employment application to obtain employment
through subterfuge (2) knowing violation
of a reasonable and uniformly enforced rule of an
employer (3) unsatisfactory attendance,
if the individual cannot show good cause for
absences or tardiness (4) damaging the
employer's property through willful
negligence (5) refusing to obey
instructions (6) reporting to work under
the influence of alcohol or drugs or consuming
alcohol or drugs on employer's premises during
working hours (7) conduct endangering
safety of self or coworkers or (8)
incarceration in jail following conviction of a
misdemeanor or felony by a court of competent
jurisdiction or for any breach of duty in
connection with work which is reasonably owed an
employer by an employee.
5DISCHARGE FOR CAUSE
- You CAN fire employees for violating your
policies, but you must show - There was a policy
- The employee violated the policy
- The employee knew about the policy
- The policy was reasonable AND
- The policy was uniformly enforced.
-
6STEP 1 Start your business
- Your business will be covered if
- you employ 1 or more employees for 20 different
weeks in a year - - OR -
- you pay over 1500 in wages.
7STEP 2 IMPLEMENT POLICIES
- GET A HAND BOOK!
- HAVE IT REVIEWED BY A PROFESSIONAL!
- FOLLOW IT!
8STEP 3 HIRE EMPLOYEES
- INDIANACAREERCONNECT.COM
- For more information, contact your local WorkOne
office. - www.workoneworks.com
9STEP 4 EXPLAIN YOUR POLICIES
- TRAIN employees on your policies
- Document the training
- Keep it in the employees file
- Get the employees signature!
10STEP 5 FIRE YOUR EMPLOYEE
- DO NOT terminate your employee due to lack of
work (layoff). - Exceptions
- Teachers
- Seasonal employees.
- DO NOT violate any policy youve issued.
11STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENT the reasons for the termination.
- Document any progressive discipline, INCLUDING
verbal warnings. - Document any investigation that occurred such as
witness statements, police reports, and any other
evidence of the wrong doing. - Document any warning to employee that his job is
in jeopardy. - GET A SIGNATURE!
12STEP 5 FIRE YOUR EMPLOYEE
- YOU CANT FIRE ME
- If an employee quits, he is not eligible UNLESS
he can show he had just cause in connection with
the work for quitting. - Problem Claimants often deny they quit.
- Claimant must express an intent to quit.
- If the judge finds claimant was terminated, you
have no evidence of just cause.
13STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENTING QUITS - Misunderstandings
- The no show
- The altercation
- SOLUTION Send a letter documenting what has
occurred and invite them to contact you (at a
specific number) if they disagree.
14STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENTING QUITS
- Potentially Eligible
- The medical condition
- Claimant is eligible if he can show that
employment ended 1) involuntarily 2) as a result
of 3) a medically substantiated 4) physical
disability and 5) the employee made efforts to
maintain the employment relationship.
15STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENTING QUITS - Potentially Eligible
- The Harassee
- Show that there was a reporting structure and he
didnt follow it. - Show that alleged harassment was reasonable
discipline, not harassment - What was said?
- Did you violate the rule?
- Was anyone else treated differently?
16STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENTING QUITS - Potentially eligible
- An employee may be able to show just cause for
quitting if an employer unilaterally changes the
terms and conditions of employment. - Show that there was no change in terms (job
description, employment agreement) or - Show that the employee agreed to the changes
(email chain, letter documenting meeting, etc.)
17STEP 5 FIRE YOUR EMPLOYEE
- DOCUMENTING QUITS - Eligible reasons
- Left for previously secured work
- Left a second job
- Accepted recall
- Left to join the military
- Left to follow spouse (not charged)
- Domestic violence (not charged)
18DEFEND THE CLAIM
- Levels of review
- Adjudication
- Appeals
- Review Board
- Court of Appeals
19Adjudication
- Respond ASAP with a brief explanation, contact
information, and relevant documents. - Document Checklist
- Policy(s)
- Acknowledgement of receipt / training
- Evidence of violation (written discipline,
warnings, investigation, police reports,
termination letters etc.) - Justification for the rule (optional)
20Appeals
- IMMEDIATELY
- Request a copy of the adjudication file
- Fax your participation form to DWD
- Send your evidence to the ALJ and opposing counsel
21Appeals
- Prior to the appeal
- Review adjudication file what is claimant
alleging? Did he make any relevant admissions? - Gather first hand witnesses
- Who witnessed the event
- Who investigated the event
- HR generally is not a first hand witness
22Appeals
- PRIOR TO APPEAL
- Prepare your witnesses
- Explain the process
- Explain their role
- Review the documents with them
- Walk through their story with them are there
any details they need to research? - Impress upon them the importance of telling the
truth
23Telephone Hearings
- Appellate Division now schedules approximately
95 of cases for telephone hearings - Eliminates travel time for parties
- No parking or travel issues
- No loss of productivity for the day of hearing
- More efficient for ALJs who can take cases from
anywhere in the state.
24Telephone Hearings Getting the call
- Return participation form with contact number
name. - Provide no less than 1 day in advance of the
hearing so that there is adequate time for form
to reach ALJ. - Faxed forms are acceptable mail and/or personal
delivery is acceptable as well. - Consider providing alternate number or
instructions in case of busy signal. - Witnesses and other representatives should be
available. -
25Telephone HearingsGetting the call
- Let people who may get the call know you are
expecting it. - Make sure the number provided accepts incoming
calls.
26Appeals
- During the appeal
- Order of testimony depends on issue
- Discharge Employer goes first
- Quit Claimant goes first
- Direct testimony telling your story
- Cross examination questioning the claimant
-
27Appeal
- Direct testimony The perfect pitch
- Claimant was terminated because he violated the
policy against _____, attached as exhibit A. - Claimant signed exhibit B acknowledging he had
received a copy of this policy on ___. - Claimant had previously received a written
warning for violating this policy on ___,
attached as exhibit C. - Present evidence of the violation.
- Present testimony on reasonableness of the
policy. - Be prepared to show that you treat all violations
equally.
28Appeal
- Cross Examination
- Use adjudication file to prepare for hearing
- What will claimants story be?
- What questions or documents?
- Use questions to introduce facts claimant left
out or show that claimants story is implausible. - Try to ask questions that have short answers to
which you know the answer.
29Strategic ConsiderationsHearing Procedure
- Know basic information about claimant.
- Date of hire, pay, job position, separation date,
reason(s) for separation - Party with the burden of proof goes first
- Employer Termination and Deductible Income
- Claimant Quit and Able Available
- ALJ generally asks questions to develop the
record however, this is your case, so always
feel free to add additional relevant information. - Case starts with direct examination (this is were
all of your relevant evidence and testimony
should be).
30Drug Policies
- To admit the results of a drug test into
evidence, an employer must produce, at a minimum,
the following documents - 1. A document signed by the tested employee
acknowledging that his specimen has been taken
and sealed - 2. A document signed by the witness to the taking
of the specimen, the sealing of the specimen, and
the forwarding of the specimen in the chain of
custody to the laboratory - 3. A certificate executed by the laboratory
certifying that the specimen was received intact
within the chain of custody and that the chain of
custody was maintained inside the laboratory and - 4. Certification by the laboratory of the test
results together with documentation of the tests
taken and the cutoff value level for each test.
The evidence must establish that a positive test
was confirmed using gas chromatography/mass
spectrometry techniques.
31Any breach of duty in connection with work
reasonably owed an employer by an employee
- Employees have a duty or obligation for certain
things in connection with their work. - Duty to obey lawful and clearly given
instructions - Duty of loyalty (cant compete with employers
interests) - Also have duties for financial accountability
(employers money) work performance, etc.
32Ethical Considerations in Unemployment Law
- Ex Parte Communications
- While an appeal is pending, ALJ may not
- directly or indirectly communicate with
- a party to an appeal or any person with an
interest in the outcome of the appeal - regarding any substantive issue
- Confidentiality
- Information obtained from any person in the
administration of the UI laws is confidential and
may not be disclosed except in the obedience of a
court order - Pursuant to US DOL guidance, subpoena is not a
court order - Exceptions to disclosure include disclosure to
the subject of the information and
non-identifying information