By  on June 13, 2017

Employers large and small regularly turn over employees. Employees quit to take care of their families, resign to take other jobs, or are fired.  Also, many employers, particularly ones whose employees are unionized, will lay off or suspend employees.  The reason for the permanent or temporary separation can be crucial in determining the employee’s eligibility for unemployment benefits.  While employers do not directly pay unemployment benefit claims, the number of successful claims affects the employer’s unemployment tax liability.

All 50 states, Washington D.C., Puerto Rico, and the U.S. Virgin Islands have some form of state-run unemployment benefits.  In every state, if an employee is terminated for cause it affects his or her ability to collect unemployment benefits.  In some states, it completely disqualifies the employee; in others it limits his or her benefit award.  Also in every state, if the employee voluntarily leaves (i.e., quits) without good cause (for no good reason), then he or she is barred from receiving benefits.

Each state, however defines differently what a disqualifying termination for cause is and what is good cause for quitting. Most states find that terminations resulting from drug or alcohol issues (like showing up intoxicated, or refusing a drug test) are for cause.  But Oregon, for example, will grant benefits to an employee who enters a drug or alcohol related rehab program within 10 days after such a discharge.  States like Virginia, North Carolina, and Michigan cite absenteeism as a cause for termination affecting an employee’s ability to collect benefits.  California and Pennsylvania find employees who are terminated due to a criminal conviction cannot receive benefits, while many others disqualify employees who commit crimes in the workplace (whether those crimes are prosecuted or not).  All states have a general disqualifier of termination for misconduct (but again each state defines misconduct differently).  Then there are unique disqualifiers, such as in Ohio and West Virginia where resigning to marry or attend to family or personal matters is the equivalent of voluntarily leaving without good cause.

While there are many common threads among the various states, each state’s disqualification standards are different. Employers need to know what reasons for separation hinder or preclude an employee’s claim for benefits.  It is important that employers consistently and accurately document all reasons for separation.  This includes temporary separations, like suspensions and labor disputes, because some states will pay benefits to temporarily unemployed workers.  Many of these states will not pay benefits to employees subject to a disciplinary suspension or out of work due to an on-going strike.   One word of caution that cannot be stressed enough, however, is this documentation of the stated reason for separation must be accurate.  If an employer creates a pretextual reason for termination, so as to hinder an employee’s ability to obtain unemployment benefits, it could expose itself or undermine its defense to claims of discrimination in that same termination.  An employer does not want to win the small victory of denying a former employee unemployment compensation only to find itself significantly hampered in responding to a discrimination lawsuit.

In summary, employers need to know their state’s reasons for disqualification, accurately document reasons for separation, and thoughtfully challenge unfounded unemployment benefit claims. If you need assistance is compiling a list of disqualifying reasons for your state or states, or if you want to discuss whether and how to fight a claim for unemployment (in light of other, perhaps bigger concerns), please do not hesitate to contact us.  We will be glad to assist you.

Religious issues in the workplace are challenging both from a legal and practical standpoint. Managers and HR professionals want employees to feel accepted and included, and they don’t want anyone to feel targeted or mistreated based on their religious beliefs or practices. Problems can arise, however, where an employee’s religious practices interfere with the employee’s job or professional interactions. How do you accommodate the employee’s beliefs while also ensuring that the employee meets the job’s requirements? Continue Reading Handling An Employee Who Won’t Shake Hands For Religious Reasons

By now, you have undoubtedly heard about the current administration’s plan to build a wall along the U.S.-Mexico border, and about the proposed travel ban against foreign nationals from certain countries (which continues to be vigorously contested in court). Most recently, U.S. Citizenship & Immigration Services (USCIS or the Immigration Service) announced its plan to combat fraud and abuse in the H-1B Visa Program.  The H-1B Visa is a highly popular nonimmigrant visa available to foreign nationals who are being offered a “specialty occupation” position as defined by immigration statutes and regulations.  The Immigration Service has a unit dedicated to preventing fraudulent use of this visa.  (If your company has ever filed an H-1B petition on behalf of an employee, you may recall paying a $500 fraud prevention fee – that fee is used to fund the Immigration Service’s site visits, interviews, and investigations).  Continue Reading Immigration Service to Increase H-1B Site Visits to Combat Fraud and Abuse

On Tuesday, April 4, 2017, the Seventh Circuit Court of Appeals became the first Federal Appellate Court to hold that Title VII of the Civil Rights Act of 1964 protects discrimination on the basis of sexual orientation.  While some states have already enacted laws protecting against that type of discrimination, and many employers have added such protections into company equal employment opportunity policies, this marks the first time sexual orientation has been deemed protected at this level under the federal Civil Rights Act. Continue Reading What Does The Landmark Ruling Declaring Sexual Orientation Discrimination Illegal Under Title VII Really Mean?

If your company was one of the 375 government contractors or subcontractors who recently received a Scheduling Letter from the Office of Federal Contractor Compliance Programs (OFCCP), you’re probably not reading this post. You’re too busy scrambling to pull together responses to the 22 items in the Scheduling Letter and Itemized Listing and making sure your affirmative action plans are up to date.

But if you didn’t receive a scheduling order… read on. Continue Reading A Message to Employers Who Aren’t in a Current OFCCP Audit

In Part 1 and Part 2 of this series of posts, we began the discussion of what the Defend Trade Secrets Act (DTSA), enacted in May 2016, really means for employers in defending their trade secrets.  In particular, we addressed some of the “good” the DTSA offers for employers, including:  (1) a clear path to federal court, (2) ex parte seizure orders and (3) international application.  In Part 3, we addressed the bad — four potential downsides of the DTSA for employers, including mandatory disclosure of whistleblower protections.  In this final Part 4, we outline questions left unanswered by the DTSA which are worth watching for future developments. Continue Reading The Defend Trade Secrets Act: What Does it Really Mean for Employers? The Good, the Bad and the Ambiguous, Part 4

As we approach the filing deadline for FY 2018 H-1B cap petitions, there are a couple of updates of which you need to be aware.

First, U.S. Citizenship & Immigration Services (USCIS) has just announced that starting April 3, 2017, it will temporarily suspend premium processing for all H-1B petitions. Continue Reading Two Immigration Law Updates: Premium Processing for H-1B Temporarily Suspended, and New <em>Handbook for Employers</em> Issued

Beginning on March 1, 2017, California employers and businesses will need to re-label any single-stall restroom facilities as available to users of either gender.  Such facilities are required to be identified as “all gender” and be universally accessible. Continue Reading Single-User Restrooms Must Be Made Available To All in California

Back in April 2015, we told you about a new player in the world of employee whistleblower enforcement:  the Securities and Exchange Commission (SEC).  The SEC grabbed everyone’s attention in 2015 by issuing its first administrative order finding that a public company violated SEC rules based solely on language in an employment agreement. Continue Reading Employment Agreements Under the Bright Light of the SEC’s Enforcement Efforts