UI Forum (ADP Unemployment Group)

Fourth Quarter 2013

UI Appeals and Hearings – As Simple as ABC

The unemployment insurance (UI) appeal and hearing process is important, as it is typically your final chance to present facts to the state unemployment agency about your former employee’s separation. While most states have a higher level appeal process, most commonly called the Board of Review, these proceedings normally only involve a review of the case facts relative to the law; new evidence generally not admissible.

The lower level appeal, generally before an Administrative Law Jude or Appeals Referee, is where you will present your case. A good outcome can be as simple as ABC...

Appeal only those cases that have merit.

This means there must be facts and a substantive basis regarding the separation issue, which makes the case worthy for an unemployment hearing. Keep in mind that the purpose of the hearing is to allow you to present evidence to prove the initial claim determination is correct or incorrect.

Be prepared for the hearing.

Hearing preparation should ideally begin as soon as an appeal is filed. Gather supporting documents and arrange for any necessary witnesses with first-hand knowledge of the case to attend the hearing to provide relevant testimony.

Because the hearing may often be the only opportunity to tell your story, be sure to have all of the evidence – policies, warnings, exhibits, witness testimony, etc. – lined up and ready.

Communicate with your ADP Unemployment Group Representative.

Talk with your ADP Unemployment Group Representative before and after the hearing

Respond immediately when the representative contacts you about the hearing. Let him or her know immediately if there are any issues; for example, if you are unable to attend the hearing, if the case is complex with many exhibits, or there are multiple witnesses. Your representative will be in a better position to address the matter with the appeals office, whether it is a postponement request, or advising the office that a longer than normally allotted hearing time may be needed.

Armed with these ABC’s to appeals, you may be in a position to approach the unemployment hearing with more confidence in the presentation of your case.

UI Integrity Law In Effect Nationwide

All states have met the requirement to enact or amend their unemployment laws by October 21, 2013, to be in conformity with federal provisions in The Trade Adjustment Assistance Act (TAAEA) of 2011. Language in the TAAEA mandates that state unemployment insurance (UI) agencies prohibit relief of unemployment benefit charges to employers when both of the following conditions exist

  • Unemployment benefits were paid to a claimant because the employer or its agent was at fault by failing to respond to the UI agency’s written request for information relating to the claim for compensation in a timely and/or adequate manner; and
  • The employer or its agent has established a pattern of failing to respond to such requests timely and/or adequately.

To summarize, if an unfavorable claim determination is reversed at an unemployment hearing, the consequence for not providing sufficient details to the initial claim request is that benefits will remain charged to the employer’s UI account from the date benefits were first allowed up until the date of the subsequent hearing decision that reverses the initial ruling to pay benefits.

Now that the states have the basic UI Integrity law amendments in place, it’s expected they will turn to the next phase - deciding how they will administer the new provisions. A number of states will likely go through the formal rule-making process, while others might implement policies or rely on future precedent decisions. In the interim, employers should be mindful that the UI Integrity law has led to stricter standards for responding to requests for unemployment claim information.

Some best practices to help ensure you provide your ADP Unemployment Group representative with timely and adequate information for responses to claim notices include:

Managers having easy access to worker files – Pertinent dates, details of incidents, copies of applicable company policies and warnings are critical to a UI claim response being deemed adequate. A concise account of the final incident surrounding an employee’s separation is imperative.

Educating HR and Managerial Staff – Understanding the new UI Integrity law and consequences for non-compliance, as well as a strong general knowledge of the UI program and its process flow will give Human Resource representatives and managers the insight and skills to consistently provide complete, accurate and timely separation details.

Partnership – Actively working with your ADP Unemployment Group representative when they request information will enhance effective claims management and UI Integrity compliance.

Your ADP Unemployment Group representatives will continue to monitor and keep you apprised of how state UI agencies react to their new UI Integrity laws.

State Updates

Idaho: The law amendment that went into effect October 1, 2013, codifies a “timely response” as 7 days from the date the unemployment claim form is mailed or sent electronically. Previously the unemployment laws didn’t contain an actual provision addressing the response deadline date for claims; rather, timeliness was largely guided by an Idaho rule on “separation notices,” which says, in part, “…A Department representative will then contact the employer within seven (7) business days for a response...”

New York: Laws governing unemployment eligibility with regard to severance and pension payments changed effective January 1, 2014. Claimants will be ineligible to collect unemployment benefits, if their severance/dismissal pay exceeds the maximum benefit amount. Ineligibility will not apply if the initial severance payment is made more than 30 days from the last day o work. A 100% reduction in unemployment benefits will be applied, when a claimant is receiving pension payments from a base period employer who contributed to the pension.

North Carolina: A guideline has been posted to the state unemployment website to help employers and their agents understand better, what is needed for an “adequate” claim response. It was created with North Carolina’s “UI Integrity” law in mind, which went into effect October 21, 2013. The law says that an employer will not be relieved of charges for unemployment benefits that are overpaid to a claimant, when the agency determines the employer or its agent was at fault for the overpayment, because they failed to respond timely or adequately to the agency’s written request for information, and they have a pattern of failure.

North Dakota: The UI laws regarding labor disputes have been amended to cover lockouts. Previously, the statute did not address lockouts specifically. Now, a claimant will be disqualified from benefits when the unemployment is due to any kind of labor dispute – strike, sympathy strike or lockout – unless the person isn’t participating in or directly interested in the dispute, and he or she doesn’t belong to a grade or class or workers employed at the premises where the labor dispute occurs, any of whom are participating in or directly interested in the labor dispute.

Ohio: Through recent legislation, Ohio has adopted a shared work program - a layoff avoidance initiative that allows participating employers to reduce temporarily workers’ hours in a particular unit or facility, and those impacted employees can claim partial unemployment benefits.

Known as “SharedWork Ohio,” interested employers must first obtain approval to participate from Ohio’s Office of Unemployment Compensation by submitting an application. Plans will be approved or denied within 30 days of the application being submitted. The affected unit must have at least two participating workers, and normal weekly hours must be reduced by a minimum of 10 percent and no more than 50 percent. A shared work plan is in effect for 52 calendar weeks following the plan approval.

Individuals included in a SharedWork Ohio plan will have the normal work search requirements waived.

Currently, work share programs are being federally funded through August 2015, because of provisions in the Middle Class Tax Relief and Job Creation Act of 2012. Once the funding ends, work share benefits will be charged to the participating employer.

The Office of Unemployment Compensation is working on implementing a dedicated employer line for SharedWork Ohio. In the interim, interested employers may contact Julie Barone, Benefits Policy Administrator, at (614) 466-9156.

This communication is intended solely for the use of the individual to whom it is addressed and may contain information that is privileged, confidential or otherwise exempt from disclosure. The information provided in this communication is for informational purposes only and not for the purpose of providing legal, accounting, or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of any such professional. Such information is by nature subject to revision and may not be the most current information available.

ADP, the ADP logo and In the Business of Your Success are registered trademarks of ADP, Inc. Copyright © 2013, ADP Inc.

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