Being in the unemployment business as long as we have, this is one of those questions we hear over and over again from employers. And it’s a great question – it is most likely hard to understand without some explanation.
When deciding whether or not to pay benefits, most states try to determine if an individual’s termination for failure to perform falls into one of two categories: Was it that the employee just plain couldn’t do the job, or that they just plain wouldn’t do the job that’s asked of them. These are two very different things and have different implications for unemployment benefit purposes.
Not being able to do a job cannot generally be considered misconduct – which is broadly defined as willful and intentional disregard for the employer’s best interests. It’s either a bad hire by the employer or the expectations of the job may have changed substantially such that someone who was previously able to do their job can no longer perform. This may be due to any number of things, like the introduction of new technology, new processes, or even new – and higher – production standards. In any case, if the unemployment office determines this is the case, there will almost always be no disqualification since the non-performance is not willful or intentional and can therefore not be considered misconduct.
Not being WILLING to do a job, however, can be another situation entirely. It may – in many cases – be considered misconduct. You should know, however, it is also quite a bit harder to prove. The employer must demonstrate that the employee has met the same expectations in the past but has at some point willfully and intentionally decided to stop meeting expectations. This may be illustrated in some cases by a series of positive performance evaluations followed by a series of negative ones. And, as in any misconduct situation, the case is always strongest when accompanied by multiple warnings.
As with any unemployment situation, each issue can be viewed quite differently from state-to-state. Before modifying your company policies, documentation, or procedures, it is always a good idea to either read up on that state’s unemployment laws and regulations, or seek the assistance of a qualified expert in Unemployment Insurance.
Product Manager, Unemployment/Reemployment Services
Over the years many businesses have expressed concern with the questions asked on the federal Work Opportunity Tax Credit (WOTC) Form 8850 as to whether or not the questions are consistent with anti-discriminatory statutes. The federal Equal Employment Opportunity Commission (EEOC) responded to the addressed concerns of businesses (in a letter dated July 28, 2010). Their informal opinion in the letter states that screening employees with the questions on Form 8850 for WOTC is not discriminatory within the federal guidelines and does not violate equal employment opportunity laws or the Americans with Disabilities Act (ADA).
The TALX November Tax Intelligence will provide further detailed information on the EEOC letter.
With the passage of SB 856 as part of the budget, the State’s fee per Enterprise Zone voucher application will increase from $10 to $15. The California Department of Housing and Community Development (HCD) have been able to arrange for a delayed implementation of the fee increase until December 1, 2010, in order to allow procedure changes.
Reimbursing Employers Can Gain Relief from Charges on Base Period Claims
This is a final reminder for Reimbursing employers in the state of Pennsylvania. Through payment of the State Solvency Fee, Pennsylvania provides a rare opportunity for Reimbursing employers to gain total relief from charges for certain types of employee separations on both Last Employer and Base Period Employer claims.
Should you elect to pay the State Solvency Fee, you would be eligible to request relief from charges on the following types of employee separations:
- Quit work without good cause attributable to the employment
- Was discharged by for willful misconduct
- Was separated for reasons that involve fault on the part of the employee
- Was discharged or temporarily suspended for failure to submit and/or pass a drug/alcohol test conducted pursuant to an established substance abuse policy
- Is still working in a part-time job that is continuing without material change and was separated from another base-year employer
- Was separated from the employer due to a cessation of business of 18 months or less caused by a disaster. (A disaster is defined as a fire, flood, or other physical occurrence beyond the employer's control, caused naturally or accidentally.)
Taking advantage of this opportunity may not make sense for all reimbursing employers. However, in these difficult times, every opportunity to reduce costs should be closely examined.
As part of the decision making process, you will need to carefully compare the actual cost of the election with the potential savings that could be generated from being able to contest these types of claims. For those employers with a high percentage of their claims falling into the categories outlined above, significant savings can be realized.
If you are a reimbursing employer operating in Pennsylvania, you should have received form UC-591C in mid to late October. This form provides the amount of your Solvency Fee for 2011, which is based on a rate of 0.12% of gross wages paid during the period of 7/1/2009 through 6/30/2010.
The payment to the state is due no later than thirty days from the mailing date indicated on your UC-591C 9. This should be November 19th, but please confirm via your actual form. As long as your response is postmarked by the due date, both your application and payment will be accepted by the state.
Your remittance should be made out to the PA UC Fund. Please include your employer account number on your check. If you no longer have the envelope provided by the state, payments should be mailed to the following address:
Pennsylvania Department of Labor & Industry
Office of UC Tax Services
651 Boss St.
Harrisburg PA 17121-0750
Unemployment Cost Management, Product Manager
The experienced and expert team from TALX speaks out to help employers manage their unemployment costs. Here's what Tracy Young, another one of our dedicated Unemployment Insurance Consultants has to say:
Seasonal employers can be at a disadvantage when recalling workers from a layoff if they do not keep a complete and accurate record of the details surrounding the job offer denial. Most states allow 7 days after a job is refused to report it for consideration to determine continuing benefit eligibility. The states are very specific on the information that is needed to prove that a job offer was refused.
- Date of contact
- Name and address of the employer
- Name and title of the person that contacted the claimant
- Area code and phone number or email address of employer
- Type of work offered
- How the job contact was made
- Reason that claimant refused work
- Rate of pay of job offered
- Duration of employment offered
- Start date of employment offer
Claimants that are filing for unemployment benefits have to be able, available, and actively seeking work. If the claimant is not actively seeking work by refusing a valid job offer, then, by state law they do not qualify for unemployment benefits.
The state will look at a refusal of work and determine whether the offer was suitable and whether or not the claimant refused with good cause. Some factors that they look at include previous work experience, prevailing salary for the job in that geographical area, physical and mental fitness, risk to your health, safety, the distance from your home, and your length of unemployment and prospects for obtaining work in your customary occupation.
HR Service Matters
By: Mike Smith
As the Smartphone wars continue at a furious pace between the relatively new iPhone 4, the Android-based Smartphones and the new Windows-based phone peeking its head this fall, I’m reminded that often the way we present HR information on our employee portals is pretty sorry. The iPhone brought simplicity and smartness to the mobile phone market and set the bar for how devices need to allow users to control access to desired information.
While striving to make HR services keep pace with Smartphones is not really required and certainly not attainable, HR should look closely at which Smartphone principles can be transferred to employee portals. Sure, many of the features like high-def video don’t translate, but there are marketing concepts available for HR to leverage when employee portals are being updated. It is clear that Apple and others are watching closely and evaluating how their customers use their products.
For example, the iPhone 4 took advantage of the popularity of “apps” to develop a truly multitasking interface that allows fast switching between open apps. The principle here is that Apple is making one of the most popular features of a very slick product even better. So, do we know what our most popular employee portal “apps” are? Have we used monitoring tools to determine which information is most likely to be accessed and make that experience better?
Once we know the patterns of use and employee desires we can make the most popular information easier to access and present it in an exciting and more engaging manner. Other characteristics of the recent iPhone updates worth considering in our revamped employee portals include:
* Does access to information and transactions work “right out of the box?”
* The iPhone has eye-popping appeal; do your employee portal apps look attractive?
* Can employees customize their portal experience?
* Are employees notified when information is updated in another app that might be important for them to know about while they are on-line?
It’s hard to argue with success particularly when it gives you wonderful ideas that you can use to make the experience for your employees better.
I ran across this interesting company, Hire Me Tee that is betting on the fact that the unemployed will want to plaster their unemployed status across the front of their T-Shirt for the world to see. At first I chuckled, but then it made me think some more about some opposing forces that can really hamper a person’s job search.
As this site suggests, a high proportion of jobs these days are found through networking. We’ve talked about this before in some of our previous posts; “Hosting a Job Club for Exiting Employees” and “Partnering with Employers in Your Area to Get People Back to Work Faster”. Given the way people are finding jobs these days I can’t stress enough the importance of thinking about ways to help your exiting employees make connections.
Networking is tough though. It requires people to get out there and mingle and basically tell people that you have lost your job. Regardless of whether it was through no fault of their own, people still feel that there is an emotional stigma attached to saying “I’m unemployed”. I remember when I was out of work for a year or so because I decided to stay home with my newborn daughter. People were always asking me what I did for a living and even though my hiatus was by choice, I still felt like I wasn’t living up to some perceived expectation that you had to be gainfully employed to be of value in our society.
Times have changed and with the current economic conditions, there are more and more people out there of great value that are becoming unemployed through no fault of their own. Employers can definitely play a part in helping their exiting employees make connections after a job loss by helping them see that they still maintain great value and offering suggestions on how they can put themselves out there.
On October 22, 2010, a weekly PBS television program titled “Need to Know” aired. One of the show’s segments focused on unemployment insurance and included specific references to third-party administrators, including TALX.
Although many of the points within the feature were somewhat sensationalistic and inaccurate, the segment did attempt to educate the public about unemployment insurance eligibility.
However, during the PBS segment, reference was made to dated and incomplete information about TALX’s work with state agencies. TALX is fully committed to aiding the communications process between states and employers to ensure that eligible individuals receive unemployment benefits to which they are entitled. TALX handles millions of claims annually, accurately and efficiently. At no time has TALX intentionally thwarted the claim process or encouraged unnecessary appeals.
In direct response to specific needs at the state level, TALX established a dedicated Government Relations Division to connect regularly with Unemployment Insurance leadership to support successful program administration. Each year, TALX facilitates site visits with state agencies and works together to review the claims and appeals processes. To further enhance communication, this year, TALX leadership met separately with the UI Committee of the National Association of State Workforce Agencies (NASWA) and with the U.S. Department of Labor, Office of Unemployment Insurance.
TALX is also very engaged in a federal-state initiative known as SIDES (State Information Data Exchange System), which is a method established to improve timeliness, accuracy and cost reductions for all via a standard format for electronic exchange of separation information.
Despite what the PBS segment has potentially led viewers to believe, third-party administrators - - such as TALX - - do not render judgments regarding eligibility for benefits and should not be vilified. And, in the case of TALX, our organization consistently demonstrates true partnership with state and federal organizations to ensure unemployment insurance best practices. Keep in mind:
By law, this system is not entitlement-based. It has been designed to provide unemployment benefits in certain circumstances for certain workers. For example, one such circumstance might be lack of work.
When a former worker believes that he or she is eligible to collect unemployment insurance, that individual files a claim with the state. The state processes the claim and sends it to the person’s former employer to see if the reasons provided by the individual regarding separation and the employer’s records are in agreement. Many employers outsource this process to third-party administrators, similar to how they might hire a payroll processing company or similar expert resource to handle a complex business process.
With the majority of claims, there is agreement and benefits are subsequently processed. In some instances, there is disagreement. According to the U.S. Department of Labor, claimants file three times as many appeals as employers. During the PBS feature, unemployment fraud was cited as significant. In 2009, the number was $2.4 billion.
When an appeal occurs, the states may collect more detailed information from the employer and the individual to make a determination on eligibility.
As a third-party administrator, TALX works within the law to provide information to state agencies based on employer data and documentation. Approximately 65% of all claims handled by TALX do not have an issue of eligibility and the claimant may collect immediately as long as they meet all other state requirements. Only 2% of all claims processed by TALX result in an employer appeal being filed.
To request additional information, please call the TALX hotline: 314-684-2599.
If you report wages in Louisiana, please read the attached notification from the State Workforce Commission about penalties you may face if your payroll reports are not filed timely or accurately.
LA Mailer 10-14-10.pdf (52.66 KB)
The following was sent to TALX clients -
The state of South Dakota’s trust fund remains solvent. The balance in the trust fund as of September 30, 2010 was $27 million, which results in the elimination of the remaining surcharge of 0.1% that had been in place for the third quarter, 2010. The surcharge had decreased from 1.0% for the first and second quarters of 2010 to 0.1% effective with the third quarter, 2010. The surcharge has been eliminated for fourth quarter, 2010 as the trust fund balance exceeds $16.5 million at the end of the quarter.
The trust fund has been increasing as a result of the passage of SB186 and HB1018 during the 2010 legislative session. SB186 reduced the surcharge amount for 2010 and 2011, increased the taxable wage base and created a new tax rate table with higher rates for employers with negative account balances. HB1018 brought $11.7 million in federal funds to the trust fund while expanding benefits for workers in state-approved training for high-demand occupations.
What Employers Need to Know
This increase in the trust fund balance means employers’ tax rates for the fourth quarter, 2010 are decreased by 0.1%. The balance in the trust fund, as projected, increased above $16.5 million as of September 30, 2010 eliminating the surcharge all together.
The eliminated surcharge rate should appear as 0.0% on your paper quarterly unemployment report or when you file on the internet.
What You Can Expect
Through analysis and understanding of state unemployment tax changes, employers can be proactive in unemployment budget planning, impact studies and rate projections. In the event of an impending merger, acquisition, reorganization, or divestiture, additional employment tax planning and compliance issues should be examined.
IRS CIRCULAR 230 DISCLOSURE: Any tax advice in this communication is not intended or written by TALX to be used, and cannot be used, by a client or any other person or entity for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing, or recommending to another party any matters addressed herein.