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

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

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

A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees.  In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position.  Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position. Continue Reading Are Disabled Employees Entitled to Be Reassigned to an Open Position?

Out with the old and in with the new?  Not so fast.  For California employers, it’s more like keep the old and add the new.  And, as so often happens, the new year brings new concerns.  While this list is not exhaustive, California employers should keep their sights on the following new state and local regulations or requirements for 2017: Continue Reading Catch the Wave: New California Employment Regulations and Requirements for 2017

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 this Part 3, we address the bad — four potential downsides of the DTSA for employers. Continue Reading The Defend Trade Secrets Act: What Does it Really Mean for Employers? The Good, the Bad and the Ambiguous, Part 3

Summary

A nationwide junction was issued Tuesday evening blocking implementation of the U.S. Department of Labor’s new rules increasing the minimum salary levels required for most white collar exemptions. These new rules had been scheduled to go into effect on December 1, and would have raised the minimum annual salary level for most exemptions from $23,660 to $47,476. The injunction halts enforcement of the rule until the Department of Labor receives a contrary order from the issuing court or an appellate court. But, since Texas is in the Fifth Circuit, which is a traditionally conservative court, the Department of Labor faces an uphill climb and it is unlikely that the new rules will go into effect in the foreseeable future. Continue Reading Nationwide Injunction Prohibits Implementation of the Department of Labor’s New Overtime Rules

The press has been filled with stories about the new Fair Labor Standards Act (FLSA) regulations which raise the minimum salary level required for employees to be exempt from overtime pay.  Specifically, the new regulations — currently set to take effect on December 1, 2016 — raise the minimum salary level required for exempt employees under the executive, administrative and professional exemptions from $455 per week to $913 per week, or from roughly $23,660 annually to $47,456 annually. Often overlooked, however, is the fact that the new regulations also significantly affect the “highly compensated employee” (“HCE”) exemption, as well. Continue Reading Highly Compensated Employees and the New FLSA Regulations