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Ten things you should know about unemployment compensation in Connecticut!

From CBIA News, July/August 2000

      At CBIA's HR Conference & Expo in June 2000, George Wentworth, director of program policy for the Connecticut Department of Labor (DOL), gave attendees advice about the state's unemployment compensation system. Here are excerpts of a fact sheet he handed out.

1. Bypassing the first-level fact-finding hearing can be costly. Connecticut's unemployment compensation law provides for three levels of administrative decision making: an informal fact-finding hearing at the local Job Center, a formal due-process hearing before an Employment Security Appeals Division referee, and a record review by the Employment Security Board of Review. More than one-third of all decisions at the first-level review are made without any participation by the employer. Some employers believe it is more efficient to invest resources in the more formal hearing before the appeals referee. This is not true, for several reasons.

     First, most first-level decisions are not appealed. What's more, making your case convincingly at the fact-finding stage may deter some appeals by claimants.

     Second, the law penalizes employers for not participating in the first level. Suppose you do not participate and benefits are approved. You then appeal and prevail at the referee's hearing. Your account will still be charged for the benefits that have already been paid.

2. Consider using the telephone to participate in first-level hearings. For cases involving an employee who quits or is fired, the method an employer uses to participate in first-level hearings has a direct correlation to the likelihood of employer success. Look at the following statistics detailing the percentage of decisions in which the employer prevails:

  • No participation 15%

  • In writing 30%

  • By telephone 46%

  • In person 53%

     In person is the most effective way to participate, but using the telephone is almost as effective and much more convenient. You just need to send back your hearing notice with the name and telephone number of the person representing the company. That person needs to be near the phone during a specific hour on the hearing date.

3. Incompetence does not disqualify an employee from benefits. Generally, a worker may be disqualified only for some form of willful misconduct. Although an employer may be justified in firing someone who lacks the competence to perform the job's basic requirements, incompetence is not a reason for disqualification from benefits under Connecticut law. In fact, since 1995 a statute clarifies that a workplace rule violation is not to be treated as willful misconduct if it resulted from the employee's incompetence.

4. Consistency counts. Consistently and uniformly applying workplace rules will help an employer in an unemployment comp case. If you ignore recurring tardiness by nine of 10 employees, you will have an uphill battle trying to demonstrate that the 10th employee's tardiness was disqualifying willful misconduct. One definition of disqualifying willful misconduct in state law reads "a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer."

     "Uniformly enforced" doesn't mean discipline must be identical for all employees. State regulations say it means "similarly situated employees subject to the workplace rule or policy are treated in a similar manner when a rule or policy is violated." If an employee challenges your policy enforcement as non-uniform, ask the adjudicator or referee for a continuance so you can supply evidence of how the rule has been applied to other workers.

5. Ignorance of a workplace rule is not always a defense. Deliberateness and intentionality have been critical components in establishing willful misconduct. Many employers have complained that violations of workplace rules are too readily excused when an employee claims he didn't know his conduct was against the rules. But the second definition of willful misconduct is a "knowing violation of a workplace rule." The violation is "knowing" if "the individual knew of such rule or policy, or should have known of the rule or policy because it was effectively communicated to the individual." Ways in which employers can communicate a workplace rule or policy include posting it in a conspicuous place, distributing a document spelling out the rule or policy and the consequences for violating it, having evidence of receipt of such documents signed by the employee, and documenting warnings for prior violations of the same rule.

6. Forget the rules when it comes to absenteeism. State law applies a special definition of willful misconduct when absenteeism is the reason for discharge: "In the case of absence from work, willful misconduct means an employee must be absent without notice for three separate instances in an eighteen-month period." There are several important things to know about this law:

  • All absenteeism cases are decided under this definition. Factors like reasonableness of a workplace rule and uniformity of application are largely irrelevant in establishing willful misconduct.

  • An "instance" can be a single episode of several consecutive days.

  • The definition has been interpreted to mean three separate instances of absence without notice or without good cause. If an employee calls in but does not have a good excuse, you have one of the three necessary instances of absence. Caveat: Illness is a good excuse.

  • When the reason for a discharge is absenteeism, other disciplinary problems in the employee's work history are largely irrelevant in determining willful misconduct.

7. Don't assume you are not needed in a case where the employee has quit voluntarily. Many employers think an employee who quits can never be eligible for benefits. This is not true. An employee who voluntarily quits "for good cause attributable to the employer" may qualify for benefits. "Good cause attributable to the employer" generally means some change from the original work conditions - usually regarding wages, hours or working conditions - that has a substantial adverse impact on the employee.

     Employees who quit don't always give their employer the same reason for quitting as they give the unemployment office. It's important for the employer to participate in the hearing in order to hear the employee's side of the story and if necessary challenge the person's position. For one thing, under the regulations governing quits, an individual's reason for quitting will be considered "good cause attributable to the employer" only if the employee brought the problem to the employer's attention and gave the employer an opportunity to remedy it. During a hearing, you can ask the employee what steps she took to get the company to remedy the problem.

8. Don't assume a worker who says "I quit" has left voluntarily. A person who quits in response to an employer's demand that he resign or be fired will probably have his case treated as a discharge, and the employer will have to demonstrate the underlying willful misconduct. But there are other circumstances when an apparent voluntary leaving may not be treated as a quit. Examples are:

  • A worker gives notice of her resignation and you let her go before the end of the notice period without paying wages for the notice period. Paying the worker for the balance of the notice period guarantees the worker's unemployment claim will be treated as a voluntary leaving.

  • If a worker tries unsuccessfully to rescind his resignation during the notice period, whether the separation is treated as a quit or a discharge depends on what has occurred since he first gave notice. The case will likely be treated as a voluntary leaving if the employer has taken substantial steps to replace the employee between the notice and the recission. However, if the employer has not yet acted to replace the employee but refuses to allow the employee to rescind his notice, the separation will be treated as a discharge.

9. Not all severance pay is created equal. If a worker's severance pay is conditioned on the worker's signing a waiver of any legal rights, the worker usually will be eligible for benefits immediately upon termination of employment.

10. Not every award of benefits should be appealed. Even when you believe that, under law, benefits should be denied in a particular case, it may not be worth it to contest the claim if doing so means you will invest more time, energy and resources than are actually at stake in the claim itself. In certain circumstances, the granting of benefits may have a negligible financial effect on your benefit account and tax rate. This could be the case if an employee has only worked for you a short time, you are already at your maximum tax rate, or the size of your business is such that the charges would not affect your rate. It's important to become familiar with how the experience rating system works, because it will inform your decision making when dealing with claims. You can get information about your experience rating from the Labor Department's Merit Rating Unit, 860-263-6705.