Workforce Development in Indiana

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Workforce Development in Indiana

• How to WIN your unemployment insurance hearing.

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Liberal 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).

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Liberal Construction

• What does that mean?????
• Ties go to the claimant!
• The deck is stacked against you!
• BUT THERES STILL HOPE!

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DISCHARGE 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.

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DISCHARGE 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.

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STEP 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.

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STEP 2 IMPLEMENT POLICIES

• GET A HAND BOOK!
• HAVE IT REVIEWED BY A PROFESSIONAL!
• FOLLOW IT!

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STEP 3 HIRE EMPLOYEES

• INDIANACAREERCONNECT.COM
• For more information, contact your local WorkOne
  office.
• www.workoneworks.com

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STEP 4 EXPLAIN YOUR POLICIES

• TRAIN employees on your policies
• Document the training
• Keep it in the employees file
• Get the employees signature!

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STEP 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.

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STEP 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!

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STEP 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.

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STEP 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.

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STEP 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.

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STEP 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?

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STEP 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.)

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STEP 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)

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DEFEND THE CLAIM

• Levels of review
• Adjudication
• Appeals
• Review Board
• Court of Appeals

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Adjudication

• 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)

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Appeals

• IMMEDIATELY
• Request a copy of the adjudication file
• Fax your participation form to DWD
• Send your evidence to the ALJ and opposing counsel

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Appeals

• 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

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Appeals

• 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

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Telephone 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.

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Telephone 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.

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Telephone HearingsGetting the call

• Let people who may get the call know you are
  expecting it.
• Make sure the number provided accepts incoming
  calls.

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Appeals

• 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

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Appeal

• 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.

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Appeal

• 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.

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Strategic 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).

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Drug 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.

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Any 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.

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Ethical 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