Know Your Rights: How to Apply for Unemployment Insurance Benefits

1
Know Your Rights How to Apply for Unemployment
Insurance Benefits Represent Yourself in an
Appeals Hearing

• Prepared by
• The Workers Rights Clinic
• University of Maryland School of Law
• April 22, 2010

2
Overview of the Unemployment Insurance System
3
What is Unemployment Insurance?

• Unemployment insurance is an employer-funded
  insurance program that provides benefits to
  persons who are unemployed through no fault of
  their own.
• The money for unemployment insurance benefits
  comes from revenue paid by employers.
• Maryland employers are required to pay quarterly
  unemployment insurance taxes each year.
• No deductions are ever made from a workers
  paycheck to pay for unemployment insurance
  benefits in Maryland.

4
How does a Person Apply for Benefits?

• To obtain UI benefits, an unemployed person must
  first file a claim with the DLLR.
• To file a claim, a person needs to call the DLLR
  or apply via the DLLRs website and provide the
  following information
• Name, Social Security number, Address and
  Telephone Number and
• The Name, Payroll Address, Telephone Number and
  Reason for Separation for each Employer in the 18
  Months prior to filing the claim.
• The DLLR will make an initial determination to
  determine whether the unemployed person is
  entitled to benefits.

5
What are a Claimants Responsibilities?

• A person initially filing for or currently
  receiving UI benefits must
• Be able to work be available for work and must
  make an active search for full-time work
• Accept suitable work as defined by law
• File timely bi-weekly continued claims
• A person must report
• All wages earned each week
• All monies received, including
• Full or part-time wages, self-employment, odd
  jobs, pensions, annuities, holiday pay, vacation
  pay, severance pay, bonuses, and commission
  payments.

6
How is the Weekly Benefit Amount Determined?

• A claimants weekly benefit amount is based on
  the amount of money all employers paid during
  the base period.
• Now have alternative base period
• Higher earnings higher weekly benefit amount.
• The current weekly benefit amount provided by the
  Maryland Unemployment Insurance Law ranges from a
  minimum of 25 to a maximum of 410 (will be
  increasing to between 50 and 430)

7
For How Long can a Person Collect Benefits?

• The maximum amount of benefits a claimant may
  receive is 26 times their weekly benefit amount.
• A claimant may file claims for more than 26 weeks
  if they earned some wages and partial benefits
  were paid.
• Federal extensions may apply.

8
Overview of the Process
1. Apply for Benefits via Web or
Phone   2. Initial determination by Claims
Examiner  3. Appeal before a Hearing
Examiner 4. Appeal to the Board of Appeals
The Board may review the record de novo and may
affirm, modify, or reverse findings of fact or
conclusions of law of the hearing examiner on
the basis of evidence submitted to the hearing
examiner, or evidence that the Board may direct
to be taken. Md. Code Ann., Lab. Empl. Art.
8-5A-(10) (2009). The appeal must be filed
in writing and must be filed within 15 calendar
days from the date the Hearing Examiners
decision was mailed. Claimants can get a copy
of the recording of the hearing upon written
request to the Board. 5. Appeal to the Circuit
Court
9
Who is Eligible?Voluntary Quit
10
Can you be eligible if you quit?

• Good Cause
• Voluntary Quit must show good cause
• Good cause
• Directly attributable to, arising from, or
  connected with the conditions of the workplace or
  the actions of the employer
• Md. Code Ann. Section 8-1001

11
Three Questions to Ask

1. Did you quit?
2. Was it voluntary?
3. Did you have
4. good cause? or
5. valid circumstances?

12
Question 1 Did you quit?

• Quit must be voluntary
• You quit of your own free choice
• Quit must be more than a vague indication of
  Intent
• In a few months Wert v. Majestic Indus.,
  183-BR-89
• If things dont improve Wolf v. Cargill,
  891-BH-88

13
Question 1 Did you quit? (Cont.)

• Voluntary quit can be through actions
• Failure to report to work for several days
• Refusal to accept transfer
• Voluntary quit may be constructive
• No alternative but to fire employee
• Must be for legal or contractual reasons

14
Question 1 Did you quit? (Cont.)

• Not a voluntary quit if employee is
• forced to resign
• On strike and refuses to return to job.
• It is voluntary quit if employee chooses to
  resign rather than face charges

15
Question 1 Did you quit? (Cont.)

• Leave of Absence issues
• Voluntary quit if
• Refuse different job
• same pay, convenient location, generally same
  duties
• Gasior v. Joseph A. Bank Manufacturing Co.,
  23-BR-9
• Fail to return or unable to return after leave
  expires
• Not voluntary quit if
• No work available after leave. Savage v. Church
  Hospital, 1067 BH-83

16
Question 1 Did you quit? (Cont.)

• Buy Outs
• Voluntary quit if you have a real choice
• ER anticipated adequate number of people would
  take buy-out claimant felt department gradually
  being eliminated
• Not voluntary quit if no real choice
• EEs led to believe jobs would be eliminated no
  matter what

17
Question 1 Did you quit? (Cont.)

• Temp Agency Issues
• Voluntary quit if you begin working on temp
  assignment and leave before end of assignment
• Not voluntary quit if temp assignment ends and
  you fail to re-contact temp agency

18
Question 2 Do you have good cause?

• Examples of good cause
• Job endangers health or safety
• Employer relocates transportation problems
• Religious beliefs or schedule
• Job requires employee to commit illegal or
  unethical acts
• Harassment or discrimination
• Significant modifications of employment contract,
  working conditions, pay

19
Question 2 Do you have good cause?

• Things that are never good cause (by statute)
• Self-employment
• Accompanying or joining non-military spouse
• Attending educational institution

20
Question 3 Do you have valid circumstances?

• Valid circumstances
• Related to employment OR
• not related to the employment, but necessitous or
  compelling and leaves the employee with no other
  choice but to resign
• Must exhaust all reasonable alternatives prior to
  quitting for personal reasons

21
Question 3 Do you have valid circumstances?

• Examples of valid circumstances
• Health problems unrelated to job (must have
  medical documentation)
• Need to care for family/family emergencies
• Unexpected loss of babysitter
• Compelling financial circumstances
• Significant transportation problems that you
  seriously tried resolve (not your fault)

22
Distinction Good Cause/Valid Circumstances

• Good cause
• No penalty for voluntary quit
• Valid circumstances
• Disqualification for 5 to 10 weeks

23
Burden of Proof

• Employer
• burden to show claimant quit
• Employee
• burden to show he or she had good cause or valid
  circumstances
• Employee goes first in hearing

24
Who is Eligible?Discharge
25
Eligibility Discharge

• Where to find the law
• Md. Labor Employment Code
• 8-1002 Gross Misconduct
• 8-1002.1 Aggravated Misconduct
• 8-1003 Simple Misconduct
• Cases
• Rogers v. Radio Shack, 271 Md. 126 (1974)
• DLLR v. Hider, 349 Md. 71 (1998)

26
Eligibility Discharge

• Did client quit or was he discharged?
• Did client intend to quit?
• Resignation in lieu of discharge is a discharge
• (Allen v. CORE, 275 Md. 69 (1975))
• Discharge without appeal is a discharge
• Discharge following leave of absence is discharge
• After end of temp work discharge

27
Eligibility Discharge

• Only ineligible if discharge is for misconduct
• Special definition / meaning in UI
• Theme unemployed by no fault of his own
• 3 types of misconduct
• 1. simple misconduct
• 2. gross misconduct
• 3. aggravated misconduct (least common)

28
Eligibility Discharge

• Simple Misconduct
• Undefined in statute
• Rogers v. Radio Shack defines it as
• Transgression of rule or policy
• Commission of forbidden act
• Dereliction of duty
• Course of wrongful conduct
• Committed in scope of employment relationship

29
Eligibility Discharge

• Simple Misconduct examples from prior cases
• Failure to follow a rule (e.g. wear professional
  attire)
• Simple negligence / carelessness
• Isolated occasion of walking away from supervisor
  during counseling session
• Whipped cream fight after hours

30
Eligibility Discharge

• Examples of what is NOT simple misconduct
• Lack of work
• Isolated lapse / substandard performance
• Trivial comments
• Misunderstandings with boss
• Conduct before hire (except dishonesty)
• Innocent mistake

31
Eligibility Discharge

• Examples of what is NOT simple misconduct
• Refusal to meet employers unreasonable demands
• Refusal to change employment conditions
• Asking reasonable question of employer
• Inability to perform tasks
• Physical / mental reasons
• Not properly equipped

32
Eligibility Discharge

• Simple Misconduct penalty
• Disqualification
• Begins the first week
• Continues 5-10 weeks, based on seriousness

33
Eligibility Discharge

• Gross Misconduct
• Defined in statute as
• Deliberate and willful disregard of expected
  standards
• Gross indifference to employers interest
• OR
• Repeated violations of employers rules

34
Eligibility Discharge

• Gross Misconduct
• case-by-case determination
• more than just substandard performance
• can be the cumulative effect of small incidents
• role of prior warnings

35
Eligibility Discharge

• Gross Misconduct examples
• Repeated excessive tardiness and no medical
  excuse
• Refusing to switch shifts
• Refusal to do reasonable work with no explanation
• Supervisor spreads false layoff rumors
• Repeated rudeness to customers after warnings

36
Eligibility Discharge

• Gross Misconduct - penalty
• Disqualified from receiving benefits
• Begins the first week after discharge
• Client may have to repay benefits
• Continues until client is re-employed earns
  enough wages

37
Eligibility Discharge

• Aggravated Misconduct
• Defined in statute as
• Intentional conduct
• Actual malice
• Deliberate disregard for property or safety
• Affects others
• Serious assault or property damage/loss

38
Eligibility Discharge

• Aggravated Misconduct examples
• a. Theft
• Value of property is not sole determining factor
• Intent is important
• b. Assault
• Coworkers, supervisor
• Provocation may be relevant

39
Eligibility Discharge

• Aggravated Misconduct penalty
• Disqualified from receiving benefits
• Begins the first week after discharge
• Client may have to repay benefits
• Continues until client is re-employed earns
  enough wages

40
Eligibility Discharge

• Misconduct burden of proof
• Employer has the burden of proof
• Prepond. of the evidence (51 - 49)
• Employer must establish
• Expectations
• Expectations were communicated
• Expectations violated
• Violation was reason for discharge
• If employer does not attend hearing

41
What to Expect at the lower appeals Hearing
42
Get there Early

• Being 10 minutes late is a failure to appear
• If the party appealing fails to appear, the Board
  of Appeals
• May dismiss the appeal, or
• May issue a decision on the facts available.
• If the claimant has the burden of proof, they may
  still put on their case.
• COMAR 09.32.06.02.M

43
Who will be there?

• Hearing Examiner
• Employer
• A Supervisor
• An Human Resources or Other Representative
• Outside Agency For ex. Talx
• An Attorney
• Claimant
• Witnesses This is rare

44
The Hiring of an Attorney

• Attorneys may be helpful if
• Appeal involves a complex issue or
• Appealing to the Board of Appeals or the Circuit
  Court.
• Types of Representation
• A private attorney There are limits to how much
  they can charge.
• 25 - 100 total per hearing
• Maximum of 150 of your weekly benefit
• A non-attorney They cannot charge at all.
• Legal Aid Services.

45
What are the rules?

• The Hearings last about 45 minutes
• The Hearing Examiner is there to serve as the
  Fact Finder and an Advocate.
• This is a very informal proceeding
• Procedure
• Evidence
• It is in a small conference room, not in a
  courtroom

46
How to Construct the Testimony

• Claimants should limit testimony to the event
  that led to the termination.
• Make a timeline of the events.
• But, it is important to think of your work
  history.
• Any written or verbal warnings?
• Any positive or negative work performance
  evaluations?
• Any evidence of this?

47
What to Expect in the Appeal

• Be prepared
• Be organized
• Stay calm
• Plan ahead
• What is your employer going to say?
• Get Fact Finding Report from DLLR
• Case Prep Not for use as evidence
• Remember The Hearing is a clean slate

48
Dos and Donts of the UI Appeals Hearing
49
Do Be Prepared

• Get organized!
• Review the Fact Finding Report
• Completed by the Claims Examiner during your
  telephone interview
• Go to the DLLR office at 1100 North Eutaw Street
  to pick yours up
• Try to anticipate what the employer is going to
  say
• Gather your documents

50
Do Be Honest

• The Hearing Examiner is there to get the whole
  story
• Even if the employer thinks you did something
  wrong, you may have had a good reason (i.e. were
  you late to work because you were sick?)

51
Do Stay Focused

• Keep to the topic at hand
• The Hearing Examiner needs to hear about the
  termination event
• What happened on the day you were terminated?
• What specific events led to your termination or
  resignation
• Do not bring up things that are irrelevant or
  events that happened in the past

52
If You Are Receiving Benefits

• DO
• continue to file your
• Tele-certs
• or
• Web-certs

53
Do Think About Your Next Step

• If the Hearing Examiner does not rule in your
  favor, consider the next steps in the DLLR
  appeals process
• Appeal to the Board of Appeals
• Appeal to your local circuit court

54
Dont Be Late To The Hearing

• Plan to arrive at least 30 minutes early
• If you arrive more than 10 minutes after your
  scheduled hearing time, you lose your right to be
  heard by the hearing examiner

55
Dont Lose Your Cool

• Control your temper
• Dont disrespect the employer
• Even if the employer says something that is not
  true, or says something you do not agree with,
  dont interrupt

56
Dont Forget Your Evidence

• Bring three (3) copies of all relevant documents
• Work policies and regulations
• Copies of emails
• Doctors notes
• Memos
• Performance reviews
• Anything else that may be relevant

57
Dont Be afraid to ask for help

• A list of resources will be available at the end
  of this presentation.

58
References
59
References

• University of Maryland School of Law
• Workers Rights Clinic(410) 706-2013
• Maryland DLLR Unemployment
• Insurance Division.[phone]
• DLLR Unemployment Insurance Digest
• https//www.dllr.state.md.us/appeals/decisions/in
  dex.shtml
• What You Should Know About Unemployment Insurance
  in Maryland http//www.dllr.state.md.us/employmen
  t/clmtguide/uiclmtpamphlet.pdf

60
References

• Maryland Legal Aid Services
• Anne Arundel County, 229 Hanover St., Annapolis,
  MD 21401 [phone] (Annapolis), (410)
  269-0846 (Baltimore), [phone]
  (Washington), [phone]
• Baltimore City, 500 E. Lexington St., Baltimore
  MD 21202 [phone], [phone]
• Cherry Hill Neighborhood Ctr., 606 Cherry Hill
  Rd., Balto., MD 21225 [phone]
• Baltimore County, 29 W. Susquehanna Ave., Suite
  305, Towson MD 21204 [phone]
• Lower Eastern Shore (Wicomico, Dorchester,
  Worcester, Somerset), 111 High St., Salisbury MD
  21801 [phone], [phone]
• Metropolitan Maryland (Prince George's), 6811
  Kenilworth Ave., Suite 500, Riverdale MD 20737
  [phone], [phone]

61
References

• Maryland Legal Aid Services
• Midwestern Maryland (Frederick, Carroll
  Washington), 22 S. Market St., Frederick MD
  21701 [phone], [phone]
• Northeastern Maryland (Harford, Cecil), 103
  South Hickory Avenue, Bel Air MD 21014 (410)
  836-8202 (Harford), [phone] (Baltimore),
  [phone]
• Southern Maryland (Charles, St. Mary's
  Calvert), 15364 Prince Frederick Rd., Hughesville
  MD 20637 [phone] (Charles), (301)
  884-5935 (St. Mary's), [phone] (Calvert),
  [phone] (D.C.)
• Upper Eastern Shore (Queen Anne's, Caroline,
  Kent Talbot), Tred Avon Square, Suite 3, Easton
  MD 21601 [phone], [phone]
• Western Maryland (Allegany Garrett), 110
  Greene St., Cumberland MD 21502 [phone],
  [phone]