Temporary Layoff / Unemployment Benefits

What is the name of your state (only U.S. law)? NC

We have an employee that we hired a little over a year ago who was charged (after she came to work for us) with unemployment fraud from a past claim and was fined and placed on a (1) year probation where she would not be eligible for unemployment benefits until the year was served and the fine paid in full.

During that time, our company experienced the crunch of the current economy and everyone was asked to take a (1-4) week layoff. Everyone agreed except her. She pitched a fit that she could not make ends meet as it was and if she had to take the week off with no pay, she’d loose her house for sure. She could not file like the rest of us could for that timeframe. She is single and at the time the guys took pity on her and let her work. She often made references to needing another job and how she was behind on her house payments and such.

The (1) year timeframe approached and she made the comment that she still could not receive Unemployment benefits until the large sum that she owed back was paid and that paying it at $20 a month was not going to be any time soon. About a week after that, she approached our boss about putting her on temporary layoff. Due to the fact that she was not a very good employee to begin with, they agreed to do it. Come to find out, her parents had paid the fine for her.

Well, that is where all of our troubles began. We started filing the Temp Unemployment benefits for her. It was not until several months later that through a facebook comment that a new apparent co-worker of hers made that she is working somewhere while we are STILL filing for her. She is aware that she is supposed to report any income made so that her filing could be adjusted.

I have called the Employment Security Commission and even talked to the investigator and unless this company she is currently working for is paying her through the proper channels, they cannot do anything. Now - why on earth would a company that is obviously paying people under the table go through proper channels?????

When we ask her if she is looking, she says no that it would mess up her benefits and the deal that she has worked out on her house and such. Now it amazes me that she can now all of a sudden make it on less than her original salary (that she claimed she couldn't make ends meet on) and afford to go back to school and such**************

I just need to know what can we do. Can we go after the company under the tax fraud avenue to have them investigated to catch her in the act that way or what advice can you offer. Sorry for such a long request, but you needed some background.

Fair? Absolutely not. However, you have no standing with the other company.

Sounds like a real piece of work. You would be within your legal rights to just fire her, um, tail.

She didn't learn the first time? Or maybe she did; now she's working under the table.;

HelpBubbles said:

What is the name of your state (only U.S. law)? NC

We have an employee that we hired a little over a year ago who was charged (after she came to work for us) with unemployment fraud from a past claim and was fined and placed on a (1) year probation where she would not be eligible for unemployment benefits until the year was served and the fine paid in full.

During that time, our company experienced the crunch of the current economy and everyone was asked to take a (1-4) week layoff. Everyone agreed except her. She pitched a fit that she could not make ends meet as it was and if she had to take the week off with no pay, she’d loose her house for sure. She could not file like the rest of us could for that timeframe. She is single and at the time the guys took pity on her and let her work. She often made references to needing another job and how she was behind on her house payments and such.

The (1) year timeframe approached and she made the comment that she still could not receive Unemployment benefits until the large sum that she owed back was paid and that paying it at $20 a month was not going to be any time soon. About a week after that, she approached our boss about putting her on temporary layoff. Due to the fact that she was not a very good employee to begin with, they agreed to do it. Come to find out, her parents had paid the fine for her.

Well, that is where all of our troubles began. We started filing the Temp Unemployment benefits for her. It was not until several months later that through a facebook comment that a new apparent co-worker of hers made that she is working somewhere while we are STILL filing for her. She is aware that she is supposed to report any income made so that her filing could be adjusted.

I have called the Employment Security Commission and even talked to the investigator and unless this company she is currently working for is paying her through the proper channels, they cannot do anything. Now - why on earth would a company that is obviously paying people under the table go through proper channels?????

When we ask her if she is looking, she says no that it would mess up her benefits and the deal that she has worked out on her house and such. Now it amazes me that she can now all of a sudden make it on less than her original salary (that she claimed she couldn't make ends meet on) and afford to go back to school and such**************

I just need to know what can we do. Can we go after the company under the tax fraud avenue to have them investigated to catch her in the act that way or what advice can you offer. Sorry for such a long request, but you needed some background.

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Forgive my ignorance, but is there some reason you haven't terminate her employment or have it? I'm not clear from your post. Please tell me you are severing all ties with her. You don't want anything to do with this woman going forward.

Saddly - No

The story here is that when she came to work here, she claimed to have all of the skills we were looking for, just needed the learning curve time to understand the way we do things here. That is normally a year - we are in construction and unless you work on more than 1 project a year, you only do something once a year and sometimes it takes a little more to adjust. As we later found out, she fabricated her skill set – based on performance here.

During this time our boss realized that she wasn't working out, but due to my insistence that she still needed time, he kept her on (which I now regret). I thought that she just needed a little more time. As time passed, the whole story about her "fraud" charges came about and with her being single and all, you have to understand that my bosses are real "softies" when it comes to people. Listen, they have kept guys on payroll here when things slowed down before just because they all have families at home that they are the main source of provision for.....so you can see where that is going.

Now, when she approached them about temporary layoff, she worked out a deal with them and they would carry her for 4 months on temp. layoff....yes, I said 4 months - but had no intentions of bringing her back. There were also a couple of other things that they agreed to do with the hope that once that time was up, she would be gone. That agreement runs out in 2 weeks.

The problem is now that we "know" all of this other stuff; we don't know quite how to handle it legally. We don't want her to come back and get us on the backside of this for firing her without cause and such. I thought of telling her to come back to work and then finding a reason to fire her (which wouldn't take long given her history), but not sure how that would fly with the boss. We don't think that we can fire her while on temp. layoff. She could still file for unemployment claims and we would have to give a reason for her firing and I am not sure that we have a legal leg to stand on seeing as how the only “proof” we have is facebook status notes. That is why I contacted this board in hopes that someone out there could give us some direction on how to approach this whole matter.

HelpBubbles said:

Now, when she approached them about temporary layoff, she worked out a deal with them and they would carry her for 4 months on temp. layoff....yes, I said 4 months - but had no intentions of bringing her back. There were also a couple of other things that they agreed to do with the hope that once that time was up, she would be gone. That agreement runs out in 2 weeks.

The problem is now that we "know" all of this other stuff; we don't know quite how to handle it legally. We don't want her to come back and get us on the backside of this for firing her without cause and such.

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Your post is confusing.

You talk about a "temporary layoff" - and then you talk about "filing Temp Unemployment benefits for her". If she is already laid off - then your boss should simply call her & tell her the company no longer needs her services and won't be bringing her back.

There is nothing to prevent your boss from firing this person. You don't need "proof" of anything. If your company already laid her off, they would have a difficult time trying to appeal her benefits claims now.

You could report her to the Unemployment Board if you believe she is collecting additional earnings "under the table".

Good luck.

From my years of work with u.i. fraud--no, you can't fire someone while they are drawing unemployment. You could write them a letter, informing them you do not anticipate recalling them, send a copy to the unemployment office, and they will be required to make a job search, will no longer be considered "job attached" while receiving benefits. And no, they can't retain a lawyer and sue you for doing this. She may come back to you squalling and complaining, even threatening to sue, but you could tell her you have reason to believe she is once again committing u.i. fraud, that you have reported her to the unemployment office, and that you no longer want to be associated with her. Then just DO NOT call her back.

When you have reported a fraud to the unemployment office, they take your information, (we're assuming you have called the state level fraud unit, not just talked to the local office, right? That 'we can't do anything about it' response sounds very unprofessional and is basically not true) and they do an investigation. They check the claim to see if the person is reporting wages from a second job. They may call the person in and ask them. They may check out the company where she is supposedly working.

Continue to hope, and it is a very valid hope, that she will be picked up by the unemployment office for fraud even though she is working for this other company "on the side." The thing is, they cannot tell you anything that is going on with the person's claim, whether she is being investigated or prosecuted or not. Once you have reported it, that is all you can do. She may be quite legitimately working a little and reporting the wages and still receiving some benefits. Or she may be blatantly cheating, drawing and not reporting any of the wages. They may catch her, it can be done, even though this isn't a tax paying employer, but they won't tell you if they do or what happens as a result of your complaint.

But for the way for you to stop her from drawing benefits off your ticket, so to speak, you have two choices. You can wait her out, in other words, let her keep drawing until her regular claim, which is 6 months or less, runs completely out, without recalling her. You said she had already done nearly four months. You've already been taken by her almost as much as it is possible for her to get from your tax paying employer account.

When she draws out of this claim, it will move her out of your tax quarters. If she draws any federal extensions, they will not be from your tax accounts, no downside to you. They come to federal monies allocated to your state for extensions, it will be the responsibility of the state to keep her from committing fraud and misusing these funds.

Then let her move on, you'll be rid of her, you won't have to waste any more thought or energy on this "hiring mistake" that has been made. This would probably be the least invasive way you can handle this situation. You're very right, you don't have any real proof she's working illegally and drawing. Though it feels bad and unfair, you can't go after either her or the other employer personally. You've reported it, it will be investigated, and you 'll never be told the results of this investigation. So you've done everything you legally can do to stop her from defrauding the system. And she has already almost received all the benefits from your wages anyhow.

Or there is another alternative. You could issue her a recall. If she refuses the recall, you notify the unemployment office. They will investigate, if she does not accept coming back to her old job, she is cut off drawing unemployment.

If she does accept the recall, you take her back, and keep careful records of her work and her attendance. I would not suggest termination for work performance in this case, I would suggest you emphasize strict attendance and tardiness regulations, and that you do progressive discipline on her and all your employees, and when she reaches the standard for termination, and is off without a medical excuse, you terminate her. This,however, would involve professional, skilled human resources maneuvers and a firm attitude on the part of your company.

Contrary to what your boss may or you may believe, in your state, you cannot be sued for "wrongfully terminating" someone unless they can prove it was for an EEOC or ADA violation reason or something similar. People are legitimately terminated all the time for valid reasons which do not allow them to draw unemployment or sue the company. Performance is a grey area, however. If you hired someone who could not do the job, and you terminate for this reason, they'll probably be approved to receive unemployment benefits.

But if your boss is as big a softie as you say, he will not want to do this anyway. What I strongly suggest is that you let her go by not recalling her. VERY IMPORTANT! If they do cut off her benefits, or if she just piddles around till she runs out of them, eventually, she will be back at your door, begging and then demanding to be rehired. DO NOT be stupid enough to get yourself back into this problem again. You are under no legal or moral obligation to call this person back to work. You can refill her position any time, she cannot sue you or do anything to force you to take her back. But if you are silly enough to rehire her, you've got it all to go all over again.

The best thing to do with a mistake hire is to get them out the door quickly, before they have made a lot of wages with your company to draw unemployment benefits from. Then you don't feel so invested. But if you keep dragging her along, it's not stupidity on her part that allows her to take advantage of you.