Welcome to our final post covering the TWC Conference for Employers. This series of seminars taking place across Texas offer valuable information on the types of policy and compliance issues the Texas Workforce Commission focuses on and what your business can do to avoid potential problems.
Our founder, Natalie Lynch, is a private presenter this year, and since she knows a lot of businesses are unable to go, so she had us create these posts to share what she’s learned.
The five posts we’ve written so far delve into wage issues, Title VII and investigations, avoiding costly workers’ compensation problems, general issues surrounding workplace policies, and independent contractor issues.
If you haven’t taken the time to read those posts, do yourself a favor and go look. There’s lots of important information in them, including things you can do to avoid running into serious legal problems.
So, what does the TWC think business owners need to know about unemployment?
Top 24 Unemployment Issues Every Business Should Understand
Can employees get unemployment benefits if they are fired or quit?
Yes. Depending on their specific circumstances, employees can still receive unemployment benefits even if you fire them or they quit.
Can employees receive unemployment benefits if they worked for less than 90 days?
Yep. Regardless of how long an employee worked for you, they are still eligible for unemployment benefits provided they have sufficient employment history overall. This generally comes from their previous employers.
What about PRN (as needed) employees — are they entitled to unemployment benefits?
Also yes. If there is no work available and you can’t employ them, this is considered a layoff. Because of this, they are entitled to benefits. This covers both temporary and seasonal workers.
If you use independent contractors, can you be named on their unemployment claim?
Yet another yes (sensing a theme here?), but this one comes with a huge “but.” While employers can be named, if the contractor has been correctly classified, their unemployment claim will not affect the employer.
Who pays for the unemployment system?
If you’re an employer, you do. The system is funded by employer taxes.
Do unemployment benefits have to fully replace a worker’s lost wages?
No. Unemployment benefits are designed to provide partial income replacement. At most, a worker will receive about half of their previous wages, with a maximum of $591 per week.
If a worker is still within their probationary period, does this protect employers from having to pay unemployment?
Nope. The probationary period does not affect unemployment claims.
Are unemployment benefits based on need?
Benefits for unemployment are based on fault, not need. Essentially, claimants must be determined to be out of work through no fault of their own.
How much can an employer be made to pay?
Employers can be billed up to $15,000 per employee if benefits are maximized.
What is the “base period” and how is it determined whether or not an employer is liable for unemployment?
This gets a bit complicated. The “base period” is determined by the quarters before the claim is filed — excluding the quarter when the claim is filed and the one before it.
If employers report paying wages to the employee in question during the base period, they may be liable for claims.
It’s also important to understand that chargebacks can occur even if you are not the last employer named on the claim.
What can employers do to win unemployment claims and avoid having to pay if an employee quits?
Winning an unemployment claim starts while the employee is still working for you. It is vital that you document all employment issues and resolutions, including documenting and addressing complaints. This type of documentation is essential to prove that an employee did not have good cause to quit.
For quitters, employees must demonstrate good cause related to their work to receive benefits. Examples of good cause include criminal activity by the employer, non-payment, health or safety issues, and substantial changes to the hiring agreement.
What can employers do to win unemployment claims and avoid having to pay if an employee is discharged (fired)?
If an employee is discharged, you must prove misconduct connected with the work to disqualify them from benefits. Misconduct is defined as bad behavior within the employee’s control. Examples include policy violations, attendance issues, and misuse of company property.
It’s important to show that the employee knew or should have known they were going to be fired for their behavior. If the policy is not enforced consistently, the employee may not be aware that this behavior could lead to termination.
How many warnings does TWC require before termination?
There’s no specific number of warnings required. The key is to show a final incident close in time to the discharge and that the employee knew or should have known they were going to be fired for that behavior.
What about when employees ask for accommodations related to doctors or medical needs?
It starts with employees. They need to communicate their accommodation needs to their doctors. Then, employers and employees need to work together to find accommodations that work for both sides.
How can an employer lose a claim against a horrible employee who did awful things?
Generally, when a bad employee wins their unemployment claim, it is because the employer made a mistake and did not cite misconduct as the reason for termination or clearly show that the employee should have known they would be fired for engaging in that behavior.
Doesn’t the at-will doctrine allow either party to end an employment relationship at any time for any reason without prior warning? Wouldn’t this preclude unemployment?
Not quite. While it is true that you can end someone’s employment at any time and for any reason, for unemployment claims, only misconduct connected with work disqualifies an employee from receiving benefits.
What are some common things employers do that cause them to lose unemployment claims?
Employers often lose claims due to lack of evidence or ignoring the TWC’s paperwork deadlines. It’s crucial to respond to notices in a timely fashion and provide sufficient evidence to support the case.
Here are some specific things it is important to do:
- Hire Professionals
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- Hiring Treaty Oak Law Group to handle unemployment claims ensures employers benefit from expert legal guidance, saving time and reducing costly errors. Their specialized knowledge of complex unemployment laws and regulations allows for efficient claim management, minimizing the risk of penalties or disputes. By outsourcing to professionals, employers can focus on core business operations while Treaty Oak navigates the intricacies of compliance and representation with precision and care.
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- File a timely appeal.
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- The appeal deadline is 14 days from the date it was sent, issued, or mailed. Appeals must be in writing, either by fax, online, or regular mail.
- A late appeal can be detrimental to the case as timeliness is crucial. There is no good cause exception for filing late appeals.
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- Present evidence and witnesses in hearings.
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- Employers should present first-hand witnesses who directly observed the misconduct.
- The burden of proof is on the employer to show misconduct by a preponderance of the evidence, meaning more likely than not. For example, in a case where a claimant was fired for sleeping on the job, the employer won by providing a photo showing the claimant sleeping intentionally.
Have questions about a specific unemployment situation you’re facing? Don’t hesitate to reach out. We’re here to help.
