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Unemployment Claim Dispute

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surelyujest

Junior Member
What is the name of your state (only U.S. law)? Arizona
Our business is seasonal and things have slowed down. An employee refused to work twice in one week when asked; he was dismissed. This previous employee now has applied for unemployment benefits.
Try this on: the employee was issued and in possession of a company vehicle, tying up those resources, losing the company revenue and potentially established clientele. If granted unemployment benefits, this will cost the company even more in higher insurance rates.
Can this happen?What is the name of your state (only U.S. law)?
 


commentator

Senior Member
Let's see, your business is seasonal and has slowed down. So you are only calling people in off and on? Is this the case? If the business is seasonal and is slowing down, every employee you have whose hours have been reduced is going to be able to sign up for and receive unemployment benefits for any week they would be able to draw less than they would make, working all the hours you have available for them.

Okay, so you have this employee, who had a company vehicle. The question is, were you working a regular schedule? Was he working for you full time? If not, why did you not re-claim the company vehicle? If your hours have been reduced, and he was having downtime, your employee should already have been signed up on his unemployment insurance. This is the law.

So your business was slow. He's sitting home, not working, with a company vehicle at his disposal, (either drawing or not drawing his unemployment) and you called him to come in on Thursday and Friday and he said....what? "No you jerk, I don't feel like it!" or "I'm sorry, I have to move on Friday, can I have the day off and work another day?" or "I'm sorry, I have the flu and can't come in on Friday." Regardless of excuse, you terminated him

When an employer terminates an employee, the burden of proof is on the employer that he terminated the employee for a good misconduct reason.

Assuming that he then went and filed for his unemployment, or if he was already signing up he notified the unemployment office, then they would be contacting you and trying to identify the reason for which you say the employee was terminated. This will be the key to whether or not he is approved for unemployment benefits. The fact that you were giving him a company vehicle is not as important as his reason for refusing
 

surelyujest

Junior Member
Here's the deal; our company provides A/C support for critical equipment (servers and computers) and by contract we must be on site within two hours of a call being placed. The employee was aware of this and the reduced work load in winter months; he had been on the job for 18 months.

In the first instance, he indicated that his wife wasn't home to babysit; an excuse used multiple times.
In the second, he said "I'm working for a friend today, can't do it".
My speculation is that he already had another job, maybe under the table, and wanted to collect unemployment on top of it. I of course can't prove his under the table job.

Pertaining to the vehicle; it's not losing money by sitting if no work is available. However, when an emergency call arrives and that van does not respond, it's losing money and possibly a contract customer. Not to mention the legal position of the customer if they lose data because we failed to respond in the two hour time frame outlined in the contract.
 

commentator

Senior Member
If the person is already receiving benefits and you tried to call him in, and he gave a personal reason such as "no baby sitter" for his refusal, I hope you notifed the Dept of Labor (unemployment office) in your state at once. This should result in their stopping his benefits until they can investigate a "refusal of work." If in fact, he was drawing benefits and you told him if he did not come back he was discharged, then you should also have immediately notified the unemployment office. Then you participate actively in any appeals process he makes, keeping him from receiving benefits in the future.

A person who is seasonally laid off from an employer, but is considered "job attached" in other words, will likely go back to that employer when work picks up is not obligated to do a work search while receiving unemployment benefits. However, if his employer asks him to come back for a temporary job and he refuses without a very good reason such as mortal illness, his claim should be stopped. Since he probably won't mention this to the unemployment office, refusal of recall should be reported at once by the employer.

WHen they are notified, his benefits would stop and he could not receive any more until a fact finding investigation and decision was made. If he had not previously filed, only filed when you actually terminated him, were you not contacted to ask for the reason for his discharge? Was there not an opportunity to present your evidence of misconduct? Or has that not happened yet?

Do you have a company policy in place about refusing to go on a job...say so many times? Had this person ever received any write ups or even verbal warning about refusing a work assignment before? If so, you should have a very good opportunity to get his benefits denied. This, of course, will protect your tax rates. But you have to be participating in the adjudication process done by the unemployment office.

The reduced work load in the winter, even though the employee is aware it will happen each year, does mean he is eligible for unemployment if his wages in a week do no exceed the amount he would make drawing weekly benefits. It is illegal for an employer to discourage the employee in any way from signing up for this benefit, even if he is being provided a vehicle, or receiving any other non-wage incentives. All employers must have posters up about unemployment insurance and must cooperate with allowing their seasonal employees to receive benefits.

That said, each time a laid off employee certifies for a week of unemployment, he states that he has not quit work refused work or been fired from a job during that week. If your former employee was offered work by you and refused it, you need to notify the unemployment office immediately, and that would stop his unemployment. Even if he isn't being honest, and would prefer to draw and work under the table, you can do much about stopping his doing so if you pursue the protest of his claim appropriately.

If you can find out where he is supposed to be working, even though it is for cash "under the table", call the unemployment fraud hotline in your state and report it, and it will be investigated. (This, of course, is separate from the appeal process involved with your company.) I hope that when you received notice his claim has been approved, you have gone through the appeal process after reporting his refusal of recall. But it does no good to be in the hearing about your termination of him and maintain that you know the guy is working under the table. This is a separate issue that will be dealt with between him and the fraud unit.

If I were you, I would not so much stress how good we were to this guy giving him a company vehicle and all, but the fact that he knew the importance of being able to answer a call, that he knew he was subject to temporary recall, and he had refused you before and you had warned him

I hope you have given him such warnings, and that he was fully aware that such refusal could lead to dismissal. If there is any kind of progressive trail of discipline having gone on here, this can very possibly be called misconduct and he will not be able to draw off you any longer.
 
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surelyujest

Junior Member
This is the first time the individual has ever applied for benefits against my company; I have been notified by the DES and have 3 days left to respond. Having not been through this before, the reason for my communication with others about this is to plan my response.
I do not have a written company handbook in place; I do, however, always verbally communicate with each employee the critical nature of our business.
The individual was verbally warned that refusing to work was unacceptable during the first instance of the week. His refusal to work the second time in the same week resulted in his termination of employment.
Everyone that's in this business knows that they'll work up to 80 hours a week in the summer months and drop down when the weather is nice; that's just the way it is. Most people budget and enjoy some time off after working so many hours.
I know UE benefits are inplace for a reason and I pay into a fund for that. I simply have a problem when someone refuses to work multiple times, knowing they'll get fired, then wanting to get paid for it. The State fund is almost dry and should be used for poeple whom really can't get a job.
 

commentator

Senior Member
It matters not what you say when you are requesting it. Immediately! Get your request for an appeal of the decision in!!! It does not have to say anything except I wish to appeal this decision!! You do not have to prepare your case or enclose relevant proof or anything else in this. Once you have missed this time sensitive limit for filing your appeal and requesting a hearing, you will not be allowed to appeal, no matter how excellent your proof is.

Then, after you have gotten an appeal in, then you worry about what you going to present in your hearing. It sounds as though you will have a good case. Try to have the exact dates and what you said to the person when you were offering him work and when you were terminating him.

But you do not have to make the case when you are requesting the appeal. You just need to get it requested. Then you prepare your arguments.
 

surelyujest

Junior Member
I have submitted the protest; also noted the dates and what took place for the hearing.

Thanks for the advise; I'll post the results when they're in.
 

surelyujest

Junior Member
I filed the appeal and the employee was disqualified; the notice stated "you were discharged because you refused to comply with a reasonable request or follow reasonable instructions from your employer. Your actions were in disregard of the employer's interests. That was wonderful.

A week later I received the following notice to claimant:

"You are eligable for unemployment insurance".

"Discharged from employment, A.R.S. 23-775.2, A.A.C. R6-3-50135.06".

"You were employed by a 'temporary help' firm. You completed your assignment and notified the firm in accordance with its rules. Since the employer could not immediately refer you to a new assignment, your separation is determined to be a layoff for lack of work".

I don't understand this; was he employed by a temporary firm after I fired him, they ran out of work and now he can go back on my insurance?
 

commentator

Senior Member
I'm not really sure why you received this information on the claimant, but in any case, if he was discharged from your employment and the claim was denied, your employer account should be "non-charged." This means that though he had wages which set up the unemployment claim from where he worked with you, your employer account will not be affected and you will not be taxed more because of his claim, even if he draws it all out.

What he has done is go somewhere and work for a temp agency until the assignment ended. He has been let go because the assignment ended, and he had made the "re-earnings" requirement since he worked for you and his claim was denied from the separation from your business. So he is able to draw, but it will not be "on your insurance."

Check on the employer services website for the state of Texas employment commission. Call and speak with them. They should be able to verify that your account is not being charged. Since you received the decision denying benefits after his separation from you, this should be a slam dunk.

Not planning on re-calling this guy when the season starts up, are you? Remember, as I reiterate, no matter how much you give them, allow them to have a company vehicle, how good you are to them, whatever, when they are off from your seasonal job, your employees are eligible for unemployment insurance any week they do not work and make more than they could draw. They can come in and work part of the time for you, as long as they don't refuse to come in when called, and still get unemployment insurance for the weeks they don't make as much as they could draw in benefits. No way you can legally stop this from happening. But you do report them immediately anytime they refuse a recall, even a temporary one.
 

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