Stabilize Employment

1.	Screen prospective employees carefully to select the "right" employee for the job.
2.	Hire versatile employees who can be shifted to another job if necessary.
3.	Transfer employees to other job sites when feasible.
4.	Use regular employees for repairs and maintenance during slack periods.

Minimize Charges To Your Account

1.	Keep accurate records of employment agreements, dates and details of work refusals, employee performance, dates and details of warnings, and other disciplinary measures.
2.	Provide separation information to the department, when requested, by the due date specified.
3.	Return the Notice of Potential Charges (Form B-10NS) with specific information about the reason for the claimant's separation from your employ if it was for other than a lack of work or if there is an error in reported wages.
4.	File an appeal if you believe a determination or decision is wrong.
5.	Notify us promptly if you have information that a claimant is not available for work, not able to work, has refused work, or is employed.
6.	Complete audit forms promptly when they are sent to you.
7.	Submit quarterly wage reports timely to avoid penalties.
8.	Pay taxes promptly to obtain maximum Federal Unemployment Tax credit.
9.	Report all changes to your business promptly.
10.	Encourage your workers to seek and accept part-time or temporary work during seasonal layoffs, since all wages earned above their disregarded earning amount in a given week, reduces their unemployment compensation benefit amount on a dollar-for-dollar basis.

Employee Dismissals and Suitable Work

Employee Dismissals

The following information relates to two of the more commonly misunderstood unemployment issues, dismissal from employment and refusal of suitable work.

Well over half of all employer appeals stem from discharge issues. The results of the appeal do not always satisfy the employer.

Based upon extensive discussions with employers, several recurring points of confusion are evident. This review will explore the unemployment issues surrounding the dismissal of an employee. The legal right of an employer to fire a worker is a separate issue, and is not considered here.

First, many employers discharge individuals for misconduct, but few know the legal definition of misconduct for unemployment purposes. Case law defines misconduct as a substantial or intentional disregard of the employer's interests. The deliberate nature of the act is a crucial component of the definition.

In contrast, case law specifically exempts from the discharge of misconduct definition "inefficiency, unsatisfactory conduct, failure in performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion".

Ineptitude is not misconduct, nor an argument between employer and employee, nor a difference in work habits. An unintentional error or a temporary lapse of good judgment also is not misconduct.

In addition, a single instance does not constitute misconduct except in extreme cases. (Arson, for example, is gross misconduct based upon a single incident.) At least one warning must usually be issued for the specific behavior that eventually leads to a discharge.

A warning for something else does not qualify. If an employee receives a warning for lateness, but then is discharged for neglecting to follow safety standards, misconduct would probably not be found. The initial warning for lateness is not the same as the actual reason for discharge (safety violations).

Finally, the law places the need for documentation, burden of proof, upon the employer in misconduct issues. The employer must show two things: deliberate disregard of the employer interests, and at least one prior warning for misconduct.

To meet this burden of proof, complete and accurate record keeping is essential. Ideally, warning should be in writing, dates and signed by both the employer and employee. In case of a dispute over the issuance of a warning, the employee's signature on the warning constitutes clear evidence that he was indeed given a warning.

Warnings should clearly list the behaviors that are not acceptable. Citing specific recommendations on how to improve, and specific standards to be achieved, are also important. Incomplete or vague records seldom contain these essential items and will not generally meet the burden of proof requirement.

Finally, this proof must be provided to the Adjudication Unit or presented at a Administrative Law Judge appeal hearing. Failure to substantiate an allegation of misconduct with evidence or credible testimony will result in a determination in favor of the claimant. An employer must participate in the initial fact finding process, as well as any appeals, or evidence will be lacking and the unemployment claim will be allowed.

Suitable Work

Statute requires individuals who are unemployment claimants to accept an offer of "suitable work". Not all jobs are considered suitable for an individual, however.

"Suitable work" involves many factors, such as pay, working conditions, health, work skills and commuting distance.

Two major questions comprise our scenario of suitable work: Was the person actually willing to work, and was the job appropriate for the person?

One must be willing to work to receive unemployment insurance. Any indication to the contrary triggers an immediate investigation. "Going through the motions" is not sufficient. A sincere desire to work must be shown through a realistic work search effort. A willingness to work implies being able to work. If one is physically unable to work due to illness or injury, he or she may be barred from receiving unemployment insurance benefits for refusing otherwise suitable work for as long as they are unable to work.

If a willingness to work is evident, then the department explores the appropriateness of the job. For example, if a person earned $12.00 an hour as a manager at his or her most recent position, a job at $6.00 an hour as a salesperson would not normally be considered appropriate. If the new job required a commute of 50 miles, but the person had always worked within 10 miles from home, the location of the new job might be sufficient reason to turn down the job. If a person did not have the necessary skills or background for a job, he or she could also refuse it and generally remain eligible for unemployment insurance.

If a job offer is in the person's normal occupation, working conditions and pay become key issues. A carpenter would have a fairly strong case if he or she refused a night carpentry job. Carpenters do not normally work at night, and that unusual working condition could be sufficient reason to refuse a job. Pay that is either considerably below the person's most recent salary or less than the prevailing wage for the occupation also may constitute a valid reason to refuse a job offer.

We have been assuming a valid job offer of work has been made to the person. To be a valid offer of work, the job must begin within two weeks, and the worker must be told pay, hours, location of the job, and other relevant information. A simply query of "Would you like to work for me?" does not meet the department's definition of a valid offer of work.

A person who is working has the right to remain with the current employer. Refusing to work for someone else is perfectly acceptable. This right to continue work for one's current employer often leads to bitter protests from a former employer. The reason for the strenuous protests can be understood with this example.

A worker, "Joe", is laid off by Superior Products Company. "Joe" receives unemployment insurance payments for a month, and then takes a job with Quality Wares Company. When Superior Products asks "Joe" to return, he refuses. They then hire someone else. A few months later, Quality Wares lays off "Joe". He resumes collecting unemployment insurance, and Superior Products is still charged for his payments. Superior's owner is not happy, and hastens to tell the department that "Joe" refused an offer of work.

The department investigates, discovers that "Joe" was working for Quality Wares at the time of the job offer, and informs Superior Products that "Joe" has not violated any provision of the unemployment insurance law and will continue to receive payments. The worker has done nothing to cause disqualification of his unemployment, and has abided by all the regulations. Superior Products will be charged for his unemployment for the rest of the benefit year. (A "benefit year" begins when a worker files for unemployment insurance and ends 365 days later. Within that time period, charges for unemployment are not changed. They will be assessed against the same company or companies for the entire 12 months.)

The department will only investigate a "suitable work" issue if the person is currently receiving unemployment insurance or was receiving unemployment insurance at the time of the refusal of work. The department has no legal authority to investigate a person who is not now and has not been receiving unemployment insurance.

For more information on this or other aspects of "suitable work" contact the Employer Assistance Line toll free at 1-877-214-3331.