I don’t think anyone can help feeling disheartened by the tragic stories that are constantly circulating about how current economic conditions and unemployment have impacted families throughout the US.  Stories ranging from families not being able to keep their homes, or pay their rent, or feed their children foster a general sense of hopelessness by the media and population at large.  The Unemployment Insurance Systems help those who lose their jobs through no fault of their own, but even with benefits, families struggle.

Recently though I’ve seen an increasing number of stories about how individuals are turning adversity around and striking out on their own to try to capture a part of that increasingly elusive American dream. 

New business growth in Long Island, NY is up 25% over last year and a man who was laid off after 15 years turns an idea into a lucrative new business for himself and his family in Springfield, OH.  Other stories include:

·         A mom of 5 who uses her kid’s antics to author a children’s book,

·         A man in Danville, VA who says that losing his job helped him realize his dream,

·         A blogger in New York City who insists the while he and some of his friends aren’t working at actual jobs, they are not unemployed, they are entrepreneurs, and

·         A former reporter in Portland, OR who took out a $9,000 loan to buy factory-second mattress and after selling out he rented space and opened up The Mattress Lot, which turned a profit after only 6 months.  (By the way, they deliver by bicycle – check it out!!)

Stories like these make me think we just might get through this mess yet!!

Tammy Mullin

The experienced and expert team from TALX speaks out to help employers manage their unemployment costs.  Here's what Roberta Wright, one of our dedicated Unemployment Insurance Consultants has to say:

One of the things we see every day in the unemployment world is:  Discharged for violation of company policy.  Along with this we receive some warnings/write ups and maybe the pages of the policy.   I have noticed that employers have a lot of detail in the final written warning, but very little detail regarding the incident that caused termination.  The final incident is not fully documented.   A termination form is filled out with violation of company policy and maybe a couple of sentences, but that is about all.   The incident/situation that caused termination is the information that the state considers when making their decision to allow or deny benefits.   

So, if I could recommend one thing to help you be more successful in providing an adequate response for your unemployment claims, that would be to write up an incident report on the reason for discharge.   On this report you will want to include the date you terminated the employee .   Provide the date the incident occurred.   If an investigation was done, the start and end date of the investigation.  Then write up exactly what happened, be very detailed in what the claimant's actions were, what you believe were the causing factors for his/her actions and document the names of the possible witnesses for an unemployment hearing.  Who discovered the situation?  Who witnessed the actions?  Who did the investigation?   Who actually advised the claimant of the discharge? 

Writing this document at the time of the discharge gives any HR/Manager the details that will be needed if that former employee files for unemployment benefits.   This is especially important in the retail world where your HR/management staff experiences more turn over.   There can be a large gap in time between the discharge and an unemployment hearing.   If you have a document with the names of the potential witnesses, the specific details of what happened, the new manager can gather the necessary individuals, if they are still with the company, faster and the document with the details will refresh the memory of the witnesses.  I cannot stress strongly enough how important writing this out when it happens is so you can provide an adequate response to the state.  This will help the state by giving them all the information they need to decide the case.

Roberta Wright

The experienced and expert team from TALX speaks out to help employers manage their unemployment costs.  Here's what Jonathan Beretta, one of our fantastic Appellate Managers has to say:

Reasonable Assurance always seems to have a stigma of being obfuscated and difficult to understand.  First of all, reasonable assurance only applies to School Districts which are classified as reimbursement Employers with the State.  Reasonable Assurance arises during break periods between academic terms.  Reasonable assurance occurs when the Employer and the Employee agree that following the academic break the Employer will re-hire the Employee.  Where Employers run into trouble is in determining when to notify their employees that they do in fact have reasonable assurance to return to work following an academic break.  The exact format and/or venue that the Employer can utilize to accomplish this can differ by state, but the substance of what the Employer needs to tell their employees and the basic mutual understanding of the assurance requirement is the same across the U.S.  The essence of reasonable assurance is that the Employer is educating its staff that following the current academic break, their jobs will be available.  Where the understanding of reasonable assurance gets obfuscated is in the area of what is “reasonable” assurance; and when does the Employer believe that it can provide its employees with reasonable assurance.

There is a famous quote, “whatever is reasonable is true; and whatever is true is reasonable.”  The best way to understand the reasonable aspect is to look at the requirement as two facets: that of the Employer’s responsibilities as the Employer; and that of the Employee’s responsibilities as an employee.  To explain in more detail, I will use the fictional school of TALX Elementary, located within the TALX County School District.  When reasonable assurance is provided, TALX Elementary is indicating that as long as everything remains the same TALX will re-employ its staff at the end of the current school break.  TALX Elementary is indicating in this communication that provided everything stays the same: budgets, funding, state and local laws, student base, accreditation, etc. that TALX Elementary will be able to re-hire the employees following the break.  Many districts get concerned about providing reasonable assurance if they don’t in fact know exactly what will happen in the future with one or several of these categories during the break.  The act of notifying the employees does not indicate that the Employer knows what the outcome of these issues will be, but that they reasonably believe they will remain unchanged to the extent that the employees will be re-hired after the break.  Reasonable assurance is not telling the employee that the Employer knows they will be able to rehire the employee at the beginning of the next academic year, but only that they believe if everything remains the same they will be able to rehire the employee.

The second part of this reasonableness lies squarely at the feet of the employee.  Because employment is a two way street, TALX Elementary School’s staff also has to meet certain requirements.  For example, if the employee is a teacher they are reciprocating the reasonable assurance by assuring to TALX Elementary that they will reasonably continue to maintain their certification as a teacher in good standing.  So if the teacher does not renew their certification (which may be expiring) then the Employer does not have to honor its assurances with the teacher after the academic break has ended.  Thus, if the employee does not keep up their side of the assurances, then TALX Elementary does not have to rehire the employee following the completion of the academic break.  Therefore, the essence of reasonable assurance is a mutual understanding between the Employer and the Employee that if I do what I am supposed to do and you do what you are supposed to do then we can re-engage our employment relationship after the academic break.

Often the question that arises out of an explanation of reasonableness is why is it so important to provide employees with Reasonable Assurance at the beginning of an academic break period.  To understand why reasonable assurance exists, one needs to understand the three fundamental requirements a person must meet to be awarded unemployment benefits.  Those are:

1.    Be unemployed

2.    Be able and available to work while unemployed, and

3.    Have made sufficient wages within the benefit year

In looking at these requirements you may think, well a teacher which is not working during a summer break meets these requirements; and most of the time they meet the first two requirements.  The essence of reasonable assurance is that it creates an exception to the third requirement of sufficient wages.  If an employee is found to have reasonable assurance, then the states find that the educational wages they received from the school district during the last academic year cannot be used in the determination of sufficient wages.  So the state does not use those wages and usually finds that the Claimant then did not make enough to qualify to receive benefits from the school district.  Thus, the claimant is found to have reasonable assurance, and therefore, with no wages the employee is ineligible to receive benefits during the academic break.

The essence of the reasonableness requirement is to remember that you can provide reasonable assurance to the employees as soon as the district reasonably believes that they can rehire the employees following the break. 

Jonathan Beretta

The experienced and expert team from TALX speaks out to help employers manage their unemployment costs.  Here's what Steve Solovic, one of our incredible Hearing Representatives has to say:

The evidentiary threshold which must be satisfied at an unemployment hearing is called "preponderance of the evidence" – basically, this means that the evidence shows that one version of events is the most logical, likely version that occurred. The party that must satisfy this threshold is the party that holds the "burden of proof". In a discharge case, the employer has the burden of proof to show that the claimant was discharged for employment misconduct. In a voluntary quit case, the claimant has the burden of proof to show that the quit was for good cause attributable to the employer or that the quit falls within some exception to good cause under the law.

In a discharge case, it is important for the employer to present multiple witnesses if these witnesses have relevant testimony. Claimants may deny receiving warnings that were never signed for, deny certain things that were said during conversations, deny the conversation ever took place at all, and of course deny the conduct that led to the termination. If the employer only provides one witness to the above type of events, and the credibility of both the employer and the claimant is not damaged at the hearing, the administrative law judge may rule that the employer didn’t satisfy its burden of proof because both versions of events are equally plausible. This type of situation is when it is necessary to be able to provide multiple witnesses that were present for the conduct, conversations, and prior disciplinary actions that ultimately led to the discharge. This type of testimony may seem repetitive but corroborating the employer’s version of events with a second witness will give the employer’s case that extra push that is needed to satisfy the evidentiary standard.

Likewise, in a quit case, the employer should present multiple witnesses when available in order to play stronger defense. It’s important, though, not to "pile on". Bringing 4 or 5 witnesses that all will say the same thing will unnecessarily drag out the procedures and quite possibly irritate the judge. Keep testimony truthful, simple, credible, and consistent.

Steve Solovic

I-9/E-Verify

By: Dave Fowler

Due in part to the negative security experiences of the State of Minnesota has had with an E-Verify Designated Agent (DA), USCIS is taking steps to enhance the security of E-Verify. As part of the privacy initiative being taking by the U.S. Citizenship and Immigration Services (USCIS), you may find that which most of these steps are good, one of them can cause difficulties for employers who are federal contractors/subcontractors and E-Verify Designated Agents serving federal contractors/subcontractors.

Good News

As of June 2, 2010 E-Verify is using commercial data from Dun and Bradstreet (D&B) to:

1. Prevent duplicate registrations - identify an existing duplicate or similar registration for the employer in E-Verify.
2. Validate employer - if the employer data matches the D&B records allow the employer to register in E-Verify. If the employer data does not match, E-Verify personnel review and assess employer validity for registration.

This is good news because this updated registration process, as described in the DHS Privacy Impact Assessment (click USCIS) "will help ensure that only valid employers enroll in E-Verify thereby establishing a level of identity assurance of the employer and thus minimizing the changes of fradulent employers using E-Verify to confirm personal information for illegal purposes."

Bad News

The E-Verify User Audit Report, which can be exported as an Excel file, used to contain the full SSN of the employee that was submitted to E-Verify. This report was very helpful to a federal contractor using E-Verify (via the E-Verify web site or a DA) with a federal contract that includes the FAR E-Verify clause. This report could be used to determine which existing employees had been submitted to E-Verify and how each E-Verify case was closed. This information is very helpful because

1. The employer must submit some or all existing employees to E-Verify, and
2. Existing employees already verified by E-Verify should not be submitted to E-Verify more than once.

So, using the User Audit Report with the full SSN made it very easy to uniquely identify existing employees who were determined to be Employment Authorized by E-Verify as well as any existing employees with E-Verify cases that did not confirm authorization to work in the U.S. This way, employers could not submit authorized employees to E-Verify again and any existing employees not authorized by E-Verify could be submitted again and verified as employment authorized.

Since the report now only includes the last 4 of SSN, anyone using the report must now do more work to uniquely identify the employee related to each E-Verify case. This can be difficult because there is no long a single unique identifier for the employee. Users of the report must use a combination of variables to try and determine the unique identity of the employee which can be difficult due to things such as name changes (e.g., marriage and divorce), lack of complete data (e.g., date of birth), and employees with the same last 4 of SSN.

Therefore, your algorighm to link an employee to an E-Verify case should match the following fields to identify the employee:

1. Last 4 of SSN
2. Date of Birth
3. Last Name
4. First Name
5. Hire Date

There is additional information in the User Audit Report, but it is not typically readily available in the employer's HR/Payroll system to match to the employees. Based on the experience in Minnesota and E-Verify's desire to increase the security and privacy features of E-Verify, the SSN in the User Audit Report will continue to be masked to the last 4 digits. So, update your matching algorithms and be prepared to manually identify at least a few employees.

On November 20, 2009, President Obama signed Executive Order 13520. The purpose of this order is to reduce improper payments by intensifying efforts to eliminate payment error, waste, fraud, and abuse in the major programs administered by the Federal Government, while continuing to ensure that Federal programs serve and provide access to their intended beneficiaries. The order adopts a comprehensive set of policies, including transparency and public scrutiny of significant payment errors throughout the Federal Government.

States Emphasize Reducing Overpayment and Fraud: The Impact on Employers

All state unemployment agencies require complete details be provided at the initial level of the unemployment claim. States no longer tolerate insufficient details with the initial claim response, in part because of the focus on reducing unemployment overpayments to claimants and fraud. From the State’s perspective, the employer and claimant are the knowledgeable parties and should have the facts at hand; therefore, the state looks to the employer for professional and complete information on a separation. When an employer fails to provide complete supporting separation information the state must rely on the available information provided to them to make a determination of benefits. 

Penalties for Employers Supplying Late or Insufficient Information

Some states are applying monetary penalties and/or penalties that could remove an employer’s rights to pursue the claim further. In addition, some states are penalizing the employer for insufficient or inaccurate responses at the claim level. This climate is ever-changing and due to demands made to increase efficiencies and reduce costs, several states are anticipated to follow suit by the end of the calendar year.

Penalties should not be the only incentive to provide separation information up front. It is good business practice to provide all the separation information, details and documents with the initial claim response for a number of reasons including:

1.   Shortening or mitigating the appeals and hearings process, saving time and money for both the State and the employer.

2.   Building good rapport with the state and being a good steward of best practices. Having proper documentation readily available is good business practice for employers and the documentation may be needed in other areas than unemployment like Equal Employment Opportunity Commission (EEOC) matters.

States Require Detailed, Accurate Information to Make an Accurate Determination

Many states penalize the employer for insufficient responses. Sufficiency is defined as information that is timely, provides complete details, and includes supporting documentation. States will frequently indicate in their determination that the “protest of the claim was not timely” when they mean “sufficient” information was not received timely.

States will focus on the final incident that initiated the claimant’s separation and they need supporting documentation to understand the complete picture. Employers should supply copies of: written warnings, company policies, resignation letters, admission statements, and any other documents that support the reason for separation and substantiate “the burden of proof.” A reason for separation alone is not sufficient.

Information States Typically Require:

•      Dates of employment

•      Details and date of the final incident that caused the separation

•      Description of the events that led to the final incident

•      Documents that show:

§  Claimant knew his job was in jeopardy

§  Claimant received warnings and knew the consequences of further incidents

§  Proof the claimant’s actions were intentional (not beyond his/her control).

§  Resignation letter in the event of a voluntary termination

Three Penalties States Impose:

•      Loss of appeal rights

•      Loss of non-charge rights: In cases where the claimant is later ruled ineligible to receive unemployment benefits, employers lose their protection and can be charged for that unemployment claim.

•      Monetary penalties: This could include charging the employer’s account for overpayments made or assessing a flat monetary amount.

Tammy Mullin

A Reemployment Strategy is a proactive plan to help displaced workers find a new job quickly thereby reducing the duration of unemployment benefits paid to that individual. In addition to helping reduce unemployment costs, an effective Reemployment Strategy can also reduce the risk of employment litigation or worker’s compensation claims as well as have a positive impact on a company’s overall corporate image.

The reemployment opportunity really lies in the highly dynamic nature of the job market. In April 2010, there were 4.2 million new hires. In fact, the job market averages about 50 million new hires a year. To put things into perspective, annual hires as a percentage of total available jobs averages about 35%. This represents the churn in the marketplace brought about by a shifting in industries due to disruptive technologies and other demographic conditions.

A successful reemployment program should be designed to motivate, educate and connect job seekers to available jobs more quickly than they would be able to do on their own.

Job seekers face some key challenges in the marketplace today where there are six job seekers for every available job. They are actually de-motivated by the media’s lack of understanding of job opportunities and in a lot of cases just don’t know where to start. Job loss can also really shake a person’s confidence which can lead to discouragement, making it even more difficult for them to effectively search for a job.

Few job seekers ever receive job search training. Job search tools and techniques are constantly evolving and the average person searches for a new job only once every four years. Some of the folks in serious need have gone ten years or more since their last job search and might not have the necessary skills or technical savvy to navigate through today’s job search technology. Job seekers should be educated on how to write an effective accomplishments –focused resume, how to evaluate their own transferable skills and passions, how and where to market themselves and how to interview.

There is also an issue with making the right connections. Marketplace disruption has created a situation where job seekers are forced to search for new jobs in new industries that might not identically align with what they have done in the past. Our experience in working with job seekers has taught us that approximately 80% of the available jobs in the market are hidden, meaning that they aren’t showing up on job boards or on company websites. Job seekers need help making the connection to these available jobs.

Employers should provide opportunities for job seekers to connect with each other as well as other employers that may be hiring. Virtual job clubs and online forums or chat rooms are some great best practices to provide exiting employees with an opportunity to connect with each other and share successes and lessons learned during their job search. Employers that are closing facilities in certain areas could also consider hosting a job fair to connect their exiting employees to employers seeking qualified candidates.

A professional job coach can be instrumental in helping motivate a job seeker. Coaches are generally extremely caring individuals that job seekers will respond to because they feel that someone is on their side and believes in them. A good coach will establish constant contact with a job seeker with structured weekly calls and emails that build in accountability and have job seekers working through a structured program designed to have them reemployed within a specified time period.

Whether an employer chooses to outsource the development and management of a reemployment program to a company that has expertise in the area or provide selected services in house, developing a plan of action before a staff reduction takes place is an essential part of ensuring that employers minimize risk and maintain positive brand image during a difficult and unfortunate time.

Tammy Mullin

When my father-in-law was asked how things were going for him he would often answer the “same old sixteen.”   To him things were the same and were not changing.  Things were actually changing for him, but it just seemed the same to him.  All things were giving the appearance of being exactly as before.

Recently, I attended the Workforce HR Tech Week virtual conference and connected with several sessions.  The last session of the conference was of most interest to me because it highlighted the results of Towers-Watson’s 2010 HR Service Delivery Survey. If you want to experience this session or any other from the HR Tech Week program, you can follow the link below to access the archived event.  Please note that you will need to register to gain access to any of the sessions.

http://www.workforce.com/hrtechweek-ondemand

I must admit I experienced the “same old sixteen” feeling as I listened to the 2010 results.  Of the HR initiatives undertaken in the last 18 months 68% of the respondents indicated that “Reengineered Key HR Processes” was where they invested their time.  This area tied for first place as respondents reflected on what they had been doing over the last 18 months.

In my 25+ years of being engaged in HR service delivery, reengineering the important HR processes always seems to be near or at the top of the list and taking the most time.  This same old sixteen outcome is similar to the results of organizations wanting to move in recent years to web-enabled self-service and now web 2.0 capabilities.  I believe that this protracted effect of HR technology investments is still driven by top management’s real view of the value propositions presented.  The result; many organizations are never able to get it done.  Being successful means spending more time understanding the real value, really believing in it and then communicating the passion.  This approach makes the difference in moving beyond the “same old sixteen.”

I-9/E-Verify

By: Dave Fowler

Finding Form I-9 and E-Verify manuals on the U.S. Citizenship and Immigration Services (USCIS) used to be a little hit-and-miss. The best way to find the current version of such manuals was to us the search feature of the USCIS web site at www.uscis.gov. At the APA's GATF Immigration Subcommittee meeting held in D.C. in May, a suggestion was made to the Verification Division responsible for E-Verify that all manuals be posted on one page. It appears this suggestion has already been implemented and we should all than E-Verify for this. You can now find Form I-9 and E-Verify manuals on a single web page. That's the good news!

The not so good news is that USCIS has fallen short in providing specific requirements for determining the hire date, employment date, rehire date, or whatever term you use to refer to the date the employee began work on the Form I-9. Part of this has to do with there not being specific requirements in the Form I-9 law for determining what this date should. As you know, E-Verify will not accept a future date as the hire date. The issue here is that there is a law governing the Form I-9, but E-Verify is still a pilot program. It just doesn't look good for a pilot program to be defining requrirements for a law, does it? Therefore, USCIS has issued guidance on their web site re: What's the Hire Date. Unfortunately, the guidance misses the mark and makes no sense for either the Form I-9 or E-Verify.

You can create an E-Verify case for a new employee as soon as they have accepted an offer of employment and completed Form I-9. The Form I-9 law does not prohibit the hire date in Section 2 or the rehire date in Section 3 from being a future date. How a signer can attest to a future event is beyond me since there is no guarantee the employee will even show up much less actually start on the date entered on Form I-9. Anyway, even if you put a future hire date on the Form I-9 you can still create an E-Verify case for the employee as soon as Form I-9 is completed. This sets up an interesting situation since you must enter the hire date into E-Verify and E-Verify does not accept a hire date that is in the future. So, what do you do? Why you are instructed to lie to E-Verify, of couse. If the Form I-9 contains a hire date that is in the future, you should enter today's date as the hire date in E-Verify. If the employee's hire date is today or a date prior to today, enter the hire date on the Form I-9 in E-Verify.

Gee, what's the purpose of entering a date in E-Verify that is not on the Form I-9? USCIS claims it has to do with the three-day rule for E-Verify purposes. What do you think employers are really going to do if they realize that the Monitoring & Compliance group within the USCIS Verification Division is looking for E-Verify cases created by non-FAR (non-federal contractors) beyond the three-day period? Right, the employer is simply going to enter today's date as the hire date to avoid submitting the new hire to E-Verify after the three-day period. E-Verify won't know that the case was created late because E-Verify can't verify the hire date.

So, rather than clarifying what is an acceptable hire date and rehire date on Form I-9, USCIS has opted to create more confusion, ask employers to enter a date into E-Verify that is not on the Form I-9, and make it even more difficult for the Monitoring & Compliance group to identify employers who intentionally create E-Verify cases late or use E-Verify for pre-screening, which is prohibited.

Wouldn't it make more sense for USCIS to simply define the hire and rehire dates as the earlier of the employee's first day of work for pay or the date Section 2 (or Section 3) of the Form I-9 is signed?