Provided by: Judge Ruth B. Kraft
A week does not go by without a question about unemployment. There are so many misconceptions about the process and the outcome. Here are few samples from this week’s inquiries:
Q: I don’t understand why my former employee was found eligible to receive benefits. After all, she quit her job.
A: Generally, a quit without good cause would disqualify a worker from receiving unemployment. However, a whole panoply of circumstances can be deemed good cause by the Department of Labor. These include quitting to follow a spouse who has been transferred, need to care for a family member, workplace harassment, inability to make ends meet on her salary and being the victim of domestic violence.
Q: An employee quit to take a presumably better job. I kept him on because I felt sorry for him but he wasn’t the brightest light bulb, if you get what I mean. So, one week into the new job, he got fired. I am not surprised but please explain why my account is being charged for his unemployment.
A: The new employer’s account will be charged for the first seven weeks of unemployment benefits. However, since you are the main base period employer, yes, it does mean that your account will take the hit. Unemployment insurance is precisely that: a risk spreading program. Unfortunately, you are on the losing end of it this time but now you know that if you discharge someone for poor performance shortly after his employment began, his former employer will similarly be charged with the lion’s share.
Q: My current employees are telling me that a worker who quit and was found eligible to receive benefits is having a great time on the beaches of South Carolina. How can she receive benefits?
A: Rest assured that, under the Department of Labor’s new system, a worker can’t go off to Timbuktu and dial in or go online to certify for benefits. However, they can certify from any state which is a signatory to the interstate benefits program, Puerto Rico, and Canada. That said, an individual who is receiving benefits must conduct a job search and attend workforce sessions at local centers. If you have reason to believe that the former employee is evading these obligations, you can telephone the Department and it will investigate.
Q: Whenever I telephone the Department of Labor, I am placed on terminal hold and then they don’t even answer my questions clearly. What should I do?
A: It is no surprise that, in the current economic climate, the phone lines are overloaded. First, keep on trying. In response to the second part of the question, understand that the telephone representatives are not there to provide you with detailed responses. That’s what keeps employment lawyers like me in business. The Department cannot offer legal advice or evaluate the viability of a potential appeal of a determination. Additionally, as I have written on earlier occasions, the best way to strategize whether and how to respond to any notice issued by the Department is by consulting counsel for assistance.
Q: Why does the number of weeks of entitlement to unemployment benefits keep changing like a moving target? I don’t understand.
A: You will notice that the weeks of entitlement vary by the jurisdiction and do change from time to time based upon either acts of Congress (at the height of the recession, it was up to 99 weeks) as well as the unemployment rate at the time of the application for benefits. It is extremely confusing to claimants as well. Congress can also authorize federal additional compensation (FAC) of an extra $25 per week from time to time.
Q: If my former employee received benefits because she lied about how her employment ended (she told the Department of Labor that she was fired but she actually quit), does the government do anything to get the money back?
A: Great question. If the claimant made a willfully false statement in connection with the application for benefits or in weekly certifications, the Department can seek recoupment of benefits. It is now looking for money everywhere-yes, even from claimants-and, effective October 1, will seek interest as well as repayment of the principal. Its enforcement procedures to date have been incredibly lax and, frequently, would only apply forfeiture proceedings to new benefits or state tax refunds. Those days are over!
Any more questions about UI? Judge Ruth Kraft is our resident (un)employment law expert. If you have general questions and would like them answered in a future newsletter, please email Judge Kraft atRKraft@Kirschenbaumesq.com. For questions specific to your company, call Judge Kraft at (516) 747-6700 ext 326 to schedule a consultation.