Top Ten Tips Disclaimer
A. Introduction to Unemployment Claims
The unemployment compensation system is a claim-driven process. That means that when an employee leaves an employer for whatever reason, nothing happens until and unless the ex-employee files an initial claim for unemployment benefits with the Texas Workforce Commission (TWC). Each claim can involve various types of claim notices, rulings, and appeals. Although the different types of notices, rulings, and appeals have different rules to keep in mind, one common thread runs through the whole system: it is extremely important to pay attention to any documents involving a claim, since the time limits for responding and appealing are very short, and failing to respond or appeal on time can lead to loss of the right to appeal further.
B. Types of Claim Notices
There are several different ways an employer can be notified of a claim. In most cases, that will be by receiving some kind of claim notice in the mail from the Texas Workforce Commission (TWC). In rare cases, an employer's first notice will be verbal, i.e., a claim examiner will call for information about a former employee who has filed a claim, or it may be in the form of a tax rate notice showing an increased state unemployment tax rate due to chargebacks you never knew you had (to estimate what your organization's liability in an unemployment claim might be, and what effect such liability would have on your tax rate, see "Estimate Chargebacks and Tax Rates"). In the latter two cases, something has gone wrong, and you should immediately call the employer Commissioner's office at 1-800-832-9394 or (512) 463-2826. In all cases, prompt action is necessary, since there is only a very short response period for any claim notice.
1. Notice of Application for Unemployment Benefits (Notice of Initial Claim)
This is the notice sent to the business or individual for whom the claimant last worked immediately before filing the initial claim. For private businesses, it is sent to the location where the claimant last performed work. Governmental employers may designate a special address to which all claim notices will be sent. This is an important notice, since the last employing unit has the right to protest payment of benefits to the claimant.
The initial claim notice carries a short response deadline: only 14 calendar days from the date the notice is mailed to submit a timely response. A timely response makes the employer a party of interest to the claim with full appeal rights. A late response has the opposite effect, meaning that if the initial determination is in the claimant's favor, the employer who protested late will not have the right to appeal the ruling. The response may be hand-delivered, faxed, or mailed to any TWC office, or called in by phone or filed via the Internet using the number or Internet address shown on the claim notice. If it is mailed, the U.S. postmark date will determine whether the protest is timely. (For some narrow exceptions, see the section on "Timeliness of Appeals" below.)
From TWC's Unemployment Insurance Division:
The Texas Workforce Commission (TWC) offers employers two options to respond to unemployment benefit claim notices using the State Information Data Exchange System (SIDES). The U.S. Department of Labor (DOL) and the states developed SIDES Web Services and SIDES E-Response to offer employers and Third Party Administrators (TPAs) secure, electronic, and nationally standardized formats to respond to requests to claim notices, attach documentation when needed, and confirm the documents are received. Employers can use SIDES E-Response and SIDES Web Services at no cost.
SIDES E-Response: For employers that respond to a limited number of unemployment claims throughout the year, the SIDES E-Response web site provides a portal for electronically posting responses to information requests from state workforce agencies. SIDES E-Response is available in Texas and other participating states to any employer or TPA with Internet access. The web site is similar to the TWC Employer Response to Notice of Application. Employers may choose either response system. SIDES Web Services: For employers and TPAs that typically deal with large numbers of unemployment notice requests, SIDES Web Services provides a more automated data-sharing and file-tracking interface between employers' IT systems and the TWC network. SIDES Web Services offers integrated computer-to-computer interface. SIDES is especially helpful to employers with operations in multiple states.
To use SIDES E-Response or SIDES Web Services, contact the TWC employer claim response help line at (877) 832-5800 or e-mail InternetEmployerResponse@twc.state.tx.us.
2. Request for Work Separation Information (Notice of Additional Claim)
This is the notice sent to the business or individual for whom the claimant last worked immediately before filing an additional claim. For private businesses, it is sent to the location where the claimant last performed work. Governmental employers may designate a special address to which all claim notices will be sent. This is an important notice, since the last employing unit has the right to protest payment of benefits to the claimant.
Just like the related initial claim notice, the request for work separation information carries a short response deadline: an employer has only 14 calendar days from the date the notice is mailed to file a timely written response. If the employer is a base period employer, filing a timely response makes the employer a party of interest to the claim and gives the employer full appeal rights. Filing a late response has the opposite effect, meaning that if the initial determination is in the claimant's favor, the employer who protested late will not have the right to appeal the ruling. Due to a quirk in the law, an employer who is not in the claimant's base period will not have appeal rights even if it files a timely protest to the additional claim notice. However, it should still protest timely anyway, since a disqualification of the claimant at this point may help the employer get chargeback protection if the claimant files a new initial claim in the future. The response may be hand-delivered or faxed to any TWC office or mailed. If it is mailed, the U.S. postmark date will determine whether the protest is timely. (Some narrow exceptions exist - see the section on "Timeliness of Appeals" below.)
3. Notice of Maximum Potential Chargeback
This is the notice sent to base period employers who are not the claimant's last employing unit on an initial claim. It notifies such employers that someone who used to work for them and who later went to work for someone else is now collecting unemployment benefits that may be charged back to the base period employers' tax accounts. Private taxed employers have the right to protest such chargebacks.
An employer will be charged back with its share of the benefits in question unless: 1) it files a timely written response to the claim notice within 30 calendar days from the date the notice was mailed from TWC, and 2) it shows that the claimant's last work separation prior to the initial claim date fits into one of the recognized chargeback protection categories. Those categories are:
a discharge required by a federal or state statute or a municipal ordinance in Texas;
a discharge for misconduct connected with the work;
a resignation without good cause connected with the work, including a sale of the business by an owner;
a discharge or resignation resulting from refusal to treat a person with a communicable disease;
a work separation due to a medically verifiable condition on the part of the employee or the employee's minor child;
a work separation resulting from a natural disaster declared by the governor or the President;
a work separation resulting from any other natural disaster, fire, flood, or explosion;
a resignation from partial employment to accept other employment that the employee reasonably believed would increase the employee's weekly wage;
a work separation that was caused by the employer being called to active military service in any branch of the United States armed forces;
a work separation that resulted from the employee leaving the employee's workplace to protect the employee or a member of the employee's immediate family from violence related to a sexual assault, or to protect the employee from family violence or stalking as evidenced by documentation indicating such a problem, such as an active or recent protective order, a police record, a physician's statement or other type of medical documentation, or a record from a family violence or rape crisis center;
a work separation that resulted from quitting to move with the employee's spouse, if the claimant is otherwise qualified because the spouse was a member of the U.S. armed forces whose permanent change of station lasted longer than 120 days, or whose tour of duty lasted longer than one year;
a work separation that was caused by the employee's disability-related inability to perform the work, if the employee is a recipient of Social Security disability benefits;
a resignation to care for the employee's terminally-ill spouse, if the illness was medically documented, and no other reasonable, alternative care was available;
a layoff caused by the employer's reinstatement of a military veteran with reemployment rights under USERRA;
a part-time employee's temporary work separation prior to the initial claim, if the employee continues to work the employee's normal hours at the time the initial claim is filed;
a work separation resulting from the claimant quitting work that was unsuitable and that lasted less than four weeks;
a work separation resulting from the claimant quitting to enter Commission-approved training; or
a work separation caused by the employer entering into a shared work plan, if the shared work benefits are reimbursed by the federal government.
The response may be hand-delivered or faxed to any TWC office or mailed. If it is mailed, the U.S. postmark date will determine whether the protest is timely. (There are some narrow exceptions - see the section on "Timeliness of Appeals" below.)
4. Wage Verification Notice (Not Initial Claim Last Employer) - (Notice of Maximum Potential Chargeback for Reimbursing Employers)
First, the good news: if your organization is a reimbursing employer, you never have to pay quarterly taxes on your employees, and you have no tax rate that will increase for three years if benefits are paid out to your former employees. Now the bad news: this form is your notification that a former employee who went to work somewhere else is now collecting unemployment benefits that will be charged back dollar-for-dollar to your account in the form of reimbursements. There is no right of protest, regardless of the reason the claimant left your employment. That is the only significant downside to reimbursing status, though. For the vast majority of reimbursing employers, the advantages far outweigh the disadvantages.
Employers should always check the wage and potential reimbursement amounts and call TWC if any errors seem to have been made.
5. Wage Verification Notice (Initial Claim Last Employer) - (Notice of Maximum Potential Chargeback for the Last Employing Unit)
This is a special notice sent to the last employing unit (LEU) named on an initial claim, but it is sent only if the LEU is also a base period employer. A non-base period LEU will not receive this form. It tells you that the claimant is now drawing benefits on your account; it includes a chart showing the calendar quarters and the wages involved in the base period and the maximum amount that can be charged to your account. The maximum is charged only if the claimant draws all of his or her maximum benefit amount.
If this is the first notice you have received that a claim was filed, ACT IMMEDIATELY! Call the employer commissioner's office at TWC, ask for one of the legal staff, describe the problem, and follow whatever directions you are given. In most cases, that advice will be to fax or mail to TWC a written protest describing the problem and requesting an appealable ruling. That ruling will state that your late protest means that you have waived your appeal rights, but it will go on to state that you may appeal the ruling and request a hearing within 14 calendar days of the date the ruling was mailed. (See the section on "Timeliness of Appeals" below.)
6. Detailed Earnings Analysis (Continued Claim Verification / Analysis of Earnings by Benefit Period)
These are benefit audit forms sent to employers by the Benefit Payment Control Department of TWC. Both are meant to verify wages earned by claimants who reported working for an employer during one or more claim weeks. This is usually done on a random audit basis, but in some instances may be a prelude to a fraud investigation. These forms can cover a two-week or longer period. With both forms, employers are asked to break down the earnings on a weekly basis. Employers' cooperation with these audits is greatly appreciated, since it helps TWC cut down on claim fraud and may help the claimants' base period employers better control their chargebacks from a claim. If either of these forms is the first notice you have received that a former employee is claiming benefits, you should call either the local TWC office, the Workforce Solutions office in your area (see http://www.twc.state.tx.us/dirs/wdas/wdamap.html), or else the employer Commissioner's office at 1-800-832-9394 or (512) 463-2826 for information on what to do next.
7. None of the Above (Any Other Claim Notices)
If you get a call from a TWC office about a claimant filing a claim, but have not received a written claim notice, tell the person calling that you have not received the notice and ask him or her what date the notice was mailed. Then file a written protest immediately to have a chance of being a party of interest with appeal rights.
If your first notice that a claim was filed comes in the form of a tax rate notice showing chargebacks you never knew about, call the employer commissioner's office immediately, describe the problem, and follow their advice on what to do next. The toll-free number is 1-800-832-9394; the regular number is (512) 463-2826. If you get some other kind of written notice that a claim was filed, it could be either a mistake or else some unusual circumstance. In either case, call the employer Commissioner's office just to make sure. The worst thing to do is just assume a mistake has been made and that it will all go away by itself. Do not hesitate to call for assistance!
C. Consistency in Claim Responses
It is absolutely essential that when drafting your response to a claim notice, you get the facts straight the first time. If you prepare a hasty response and include unsupported assertions, or make statements that you later have to change or retract altogether, your credibility will be damaged with the TWC claim examiner, appeal hearing officer, and the Commission. One of the very worst things an employer can do is state one thing in the initial claim response, then change directions later at the appeal hearing. The hearing officer will be suspicious and will grill the company representatives with skeptical questions. More often than not, changing stories will harm an employer's case irreparably. If you are not sure what to put down in the initial response, give a timely response with as much specific information as possible and follow up with more details before the deadline.
D. What is a Base Period?
The base period is a year-long period of time that determines both the amount of UI benefits a claimant can potentially draw and which employers will be in line for potential chargebacks if benefits are paid. It lags behind the date the initial claim is filed. Officially, it is defined as the first four of the last five completed calendar quarters immediately preceding the initial claim. An easier way to think about it is to take the date the initial claim is filed and figure out into which calendar quarter the filing date falls. Disregard that quarter (the quarter in progress), and disregard the quarter immediately preceding that one (the lag quarter), and then go back in time four calendar quarters. That year-long period will be the base period, as shown in the following chart:
|Lag Quarter||Quarter In Progress When
Claim Is Filed
|Included||Included||Included||Included||Not Included||Not Included|
Any employer that paid the claimant wages during any of the quarters checked above will be potentially liable for chargebacks. The liability will be proportional to the amount of wages the employer paid in relation to other base period employers, i.e., if you paid half the claimant's wages during the base period and another company paid the other half, you will each have half of the chargeback liability.
E. Evidence Needed to Win a Case
Different situations require different types of evidence in order for the employer to win, but there are some types of evidence that will always be required no matter what happened to cause the claimant's work separation:
Firsthand testimony from witnesses with direct, personal knowledge of the events leading to the claimant's work separation, i.e., "the ones who saw it happen".
Documentation of policies, warnings, attendance, or any other subjects relating to the claimant's work separation.
In a discharge case, evidence relating to a specific act of misconduct that happened close in time to the discharge, i.e., the event that precipitated the discharge. In a resignation case, evidence relating to whatever motivated the claimant to resign.
Beyond those general categories, there are specific things that are needed for each different type of case. Specific evidence needed to win a misconduct case is found in the "Misconduct" section, and that needed to win a resignation case is found in the "Voluntary Leaving" section.
F. Ineligibility for Benefits
Claimants must meet several continuing eligibility requirements to draw benefits if they are otherwise qualified:
must have filed a claim under TWC rules, properly registered for work at an employment office, and must report to the office whenever required;
must be medically able to work;
must be available for full-time work;
must have been totally or partially unemployed for a waiting period of at least seven consecutive days;
must participate in reemployment services if the claimant has been determined to be likely to exhaust his or her regular benefits and to need those services to obtain new employment.
A claimant who at any point fails to meet one or more of those requirements will be held ineligible to receive benefits as long as the failure exists, even if otherwise qualified to receive benefits.
In addition, the claimant must meet the following monetary eligibility requirements in order to have a valid initial claim:
must have wages on record during at least two calendar quarters in the base period;
the total base period wages have to be at least 37 times the weekly benefit amount; and
if the claimant has filed a prior benefit claim, he or she must have worked and earned at least six times the weekly benefit amount since the date the prior initial claim was filed.
If you are dealing with an unemployment claim and feel that the claimant might be ineligible under any of the requirements noted above, you should mention that in your claim response, in your appeal letters, or in a fax or phone call to any TWC office.
G. Timeliness of Protests and Appeals
If you receive a claim notice and notice that your deadline to protest a claim is that day or the next day, do the following before you do anything else: Take out a piece of paper. Type or write "We protest [or "disagree"]. More information will follow later." on it. Get it ready to mail, fax, or hand-deliver to any TWC office, and then mail, fax, or hand-deliver it (best of all, do any two of those three things). Do it now. Finally, read the rest of this section.
TWC now allows claim responses to be filed over the telephone or the Internet. If filing a claim response by phone, use the telephone number given in the claim notice, and be sure to advise the TWC staff that the purpose of the call is to protest the notice of claim. If a claim examiner (sometimes called a "claim adjudicator") calls for information about the claim, and the company has not yet filed a claim response, be sure to tell the TWC staff member that the company wishes to have the phone call serve as the company's initial claim response, and give as much information as possible. If filing the claim response via the Internet, use the Web address given in the claim notice and supply as much information as possible in the space provided. If necessary, send additional documentation in via mail or fax using the contact information in the claim notice.
As noted in previous sections, you must file timely responses to TWC notices in order to have any chance at all of participating in the claim determination process. The easiest way to do this is to pay attention to the mailing date and response deadline and ensure that you send something in writing, or via telephone or Internet, before the deadline passes.
Important: no matter what kind of notice or ruling you have, read the information below, which explains the most common things that can go wrong as far as filing a timely response is concerned.
Under the law, an employer who files a late protest gives up its right to protest chargeback of benefits and has no right to appeal an award of UI benefits to its former employee. The claimant might be disqualified based upon his own statements to TWC, but the employer should not count on that. An employer who files a late appeal from a ruling gives up the right to have the appeal considered, because TWC has no jurisdiction to rule upon a late appeal; the appeal would have to be dismissed. In addition, an employer that has filed late claim responses two or more times in the past can lose chargeback protection in future cases (for more information, see section II.A., "Initial Claim", of the article "Unemployment Insurance Law: The Claim and Appeal Process" at this link).
If you have received a claim notice or ruling close to the deadline and are worried that you might not be able to fully investigate and respond in time, you can file a quick response that will preserve your appeal rights by noting your disagreement and submitting a brief outline of the basic facts behind the work separation. That is all it takes to do a protest or appeal. You can file the response by hand-delivering it to any TWC office anywhere in the state, by faxing it to any such office, by using a courier or delivery service to deliver it to any TWC office, or by using ordinary mail. If you use ordinary mail, make sure you get it postmarked by the response deadline. The U.S. postmark date is what TWC uses to determine the filing date of a mailed response. After you file the timely response to preserve your appeal rights, then go ahead and do a more complete investigation and get the additional information to TWC as soon as possible.
The most common mistakes that lead to late protests and appeals are:
thinking that a 14-day deadline means "business days" or that the period does not include holidays or weekends. "Day" means "calendar day". Take the mailing date shown on the notice and add 14 calendar days to it, depending on what kind of deadline is involved. Holidays and weekends do not extend the deadline. The only exception is when a response deadline falls on an official state holiday or a weekend, in which case the deadline is extended until the next business day.
thinking that a complete investigation is necessary to file a response. A timely response is what is necessary, not a complete investigation. You can investigate fully once the response is filed and then offer additional information whenever it becomes available.
assuming that someone else will do the appeal for the company. Make sure that the appeal is being handled; check up on the people you assign to do the task. This is especially true if you hire an outside consultant, attorney, or company to handle your appeals for you.
not designating someone to check for and handle important mail in your absence. If you want to have a rule that no one else can check your mail for time-sensitive items in your absence, you can do it, but it will not make a difference if it results in your filing a late protest or appeal. If you give such an explanation for a late protest or appeal, neither TWC nor the courts will be able to use it as justification for holding your response timely. To protect your company against such an outcome, designate a trusted employee to check your mail for important items that have inflexible deadlines and to fire off a quick preliminary response that will preserve your appeal rights.
thinking that a timely response is unnecessary just because the claimant has told you that he is no longer interested in filing for UI benefits. Claimants say things like that and then change their minds and file for benefits anyway. It could also happen another way: the claimant gets another job, loses it, and then reopens the earlier initial claim. If you have not filed a timely written protest, you are not a party of interest to the claim and cannot protest chargebacks to your account that might later result from future job losses by that claimant.
failing to promptly check the records once a claim notice comes in. Some employers file late protests and claim that they did not recognize the name of the claimant. That is not a valid excuse; people get married or otherwise change their names for various reasons. The social security number is always on the claim form. Any company can search its records and find that information. A company that is truly mystified by a name or social security number should first make sure it files a timely written protest (at the very least: "We protest - no such employee in our records."), then promptly call the Workforce Solutions office or state TWC office for help and document the call and what was said by which TWC or Workforce Solutions office employee.
assuming that TWC will overlook a late response if you explain that the company was relocating, was extremely busy at the time, or that the person responsible for handling the response mislaid or otherwise lost track of the document. In general, there is no "good cause" exception to the protest and appeal deadlines. The bottom line is that a company has to make it a top priority to file a timely protest or appeal.
The only exceptions to the deadlines occur when a response is late due to misinformation from a TWC employee, when TWC misaddresses the claim notice or ruling, or when USPS mishandles the delivery of the document to the employer. If you think that one of these exceptions might apply in your case, call the employer hotline at 1-800-832-9394 and talk with a member of the employer commissioner's legal staff.
In the specific case of delayed receipt or non-receipt of the document, your chances for winning will greatly improve if you can show that you:
routinely maintain a log of all incoming government correspondence;
assign log duties to only one or two employees who can be witnesses on your behalf if necessary; and
have instituted a document tracking system and have stuck to it.
If an non-receipt or delayed receipt issue ever comes up, submit a copy of the relevant log pages, testify about the document tracking system and how everyone is careful to follow it, and have the firsthand witnesses swear that they carefully watch for all such correspondence and either did not ever see it or that they were there when it arrived late and thereafter handled it promptly.
To reiterate, late responses and late appeals lose cases. If you call TWC and leave a message, or cannot get through, or get confusing or conflicting information that leaves you uncertain of what to do, do not do nothing. Do not let a response or appeal deadline pass. The claim notice or ruling clearly tells you that you must make a timely response or file a timely appeal. Do that. File the response or appeal anyway, within the stated time frame, and protect your rights. If you later decide not to contest the case further, you can always withdraw your appeal, without any penalty for having filed an earlier appeal.
The full text of Commission Rule 32 on timeliness appears in the Texas Administrative Code, Title 40, Part 20, Chapter 815, Subchapter B, Rule 815.32; see http://info.sos.state.tx.us/pub/plsql/readtac$ext.viewtac.
H. Special Timeliness Information Concerning Initial Claim Notices
As noted before, do whatever you have to do to file a timely written response to this notice!
Note the short response deadline - only 14 calendar days from the date the notice was mailed!
"Calendar days" means that holidays and weekends count.
If the address shown for your company is incorrect, or if you want subsequent rulings and hearing notices sent to a different address, note that fact and the address change in the space provided on the back of the form.
If you are on the final day due to late receipt or mishandling of the notice in your office, immediately submit a written response with as much detail as possible. That will preserve your appeal rights.
Notice that there is a fax number given on the front of the form for the local office where the claim is being handled. You can fax your response to the office if you wish and call to verify receipt. You may also respond by telephone or use TWC's new Internet claim response site at http://www.texasworkforce.org/ui/er.html.
I. Special Timeliness Information Concerning Notices of Maximum Potential Chargeback
You have only 30 calendar days to file a timely written response.
"Calendar days" means that holidays and weekends count.
If the address shown on the form is no longer valid, note that fact and the new address in your claim response and also inform the Tax Department of the change in address. This kind of notice is always sent to the most recent tax address of record, so keep your address information current.
Special exception to the timeliness rules for this kind of notice: if you and this claimant were involved in a previous claim in a prior benefit year and you won the decision, i.e., the claimant was disqualified from benefits and/or your tax account was protected from chargeback, you should be able to get automatic chargeback protection in the next benefit year, even if you file a late response to this type of claim notice. If this situation fits you, note the prior favorable decision in your current late response and supply specifics so that the facts can be verified. If possible, include a copy of the prior decision with your new protest.
J. Examples of Claim Protests
In this section, you will find a variety of examples of protest and appeal letters that could apply in certain claim protest and appeal situations. These examples are very basic, intended to serve only as illustrations of the kinds of statements that might go into a protest or appeal letter in an unemployment claim. They should not be regarded as the final wording for a protest or appeal; for that, it is always best to consult with your attorney, preferably an employment law attorney. The important thing to remember is that TWC is not looking for courtroom formality or immersion in legalities. Experience has shown that the best responses are usually the simplest and most direct ones. One implication of the agency's crushing caseload is that employers who can state their cases in a few well-chosen words or paragraphs are often the ones whose cases end up being understood the best by agency personnel. Make your protests and appeals stand out by being brief, to the point, and well-organized. The main thing to avoid is inconsistency: what you put in appeals should match what you put in the protest and what you told agency personnel. Remember, you can speak at no cost with a TWC attorney about protests or appeals by calling toll-free at 1-800-832-9394.
CAUTION: These examples are furnished here solely for purposes of illustration. They are not meant to be forms that can be copied directly and used. No sample form for legal purposes should ever be used without first consulting your own attorney. No one form can cover all possible situations. Each situation has its own specific facts and issues, and it is always best, before using a legal form, to discuss those issues with your attorney to minimize the risk of important considerations being missed. You can use these examples to take to your attorney (preferably an employment law attorney) and let him or her adapt one of them to suit your particular company and situation.
Sample Responses to Claim Notices
For an employer that does not intend to dispute the payment of benefits to a claimant, a neutral response could be something like the following:
"We do not wish to contest the claimant's entitlement to benefits. However, we wish to remain a party of interest to the claim and would appreciate receiving copies of any determinations to which we are a party."
A neutral response like that should be used only if the employer has no problem with the claimant drawing unemployment benefits and does not plan on appealing a decision in the claimant's favor.
In any disputed case, the claim response will need to contain as much detail as possible regarding the reason why the employer believes that benefits should be denied. If the employer plans on disputing the payment of benefits to a former employee, it must take care to give enough information in its claim response to put TWC on notice of facts that would arguably justify disqualification from benefits. Failing to give a timely or adequate response to a claim can not only deprive the employer of the right to appeal an adverse ruling (if the response is late), but can also lead to imposition of a chargeback even if the employer later successfully appeals a ruling in favor of the claimant. The latter would happen if the employer is found to have filed late or inadequate claim responses at least twice in the past, and the current case arose after a third late or inadequate response led to an initial decision in favor of the claimant.
Sample response for a disputed claim:
"We protest any payment of benefits to this ex-employee. We fired her for repeated tardiness [or] repeated failure to give proper notice of attendance problems [or] failure to follow instructions [or] having too many avoidable accidents [or] insubordination [or] possession of alcohol on company premises [or] taking vacation without permission [or] [supply your own description of the claimant's misconduct]."
If the claimant quit: "We protest any payment of benefits to this ex-employee. He/ she quit to move out of state/out of town [or] to take another job [or] because we declined to give her a raise [or] because we asked him to take a small pay cut [or] because he disagreed with our new drug-testing policy [or] because we did not give her a promotion that she had hoped for, but which she had not been promised."
The above are only examples. If you want to supply more detail, go ahead, but avoid excessive wordiness. It is more important to make firsthand witnesses and documentation available to the claim investigator than it is to write a lengthy claim protest.
K. What to Do When the Claim Examiner Calls
At some point fairly soon after the claim notice is mailed, usually after the employer submits a written response, but sometimes before, the claim examiner will call the employer in an effort to get some facts pinned down and recorded in the form of "statements of fact." The claim examiner will not actually "record" the conversation on an audiotape, but will enter the employer's statements into a computer record that becomes part of the permanent claim file in the case. The claimant is also asked to make a statement of facts for the record. In many cases, two or more such contacts will occur for both the claimant and employer. The most important thing for the employer to remember is that the claim examiner is trying to assemble enough facts to make a decision. The employer should come across as calm, organized, and in command of the facts. As noted above, it is essential to have a consistent explanation for what happened.
If the employer is concerned about the claimant filing other types of claims and lawsuits, it may be advised by its employment law attorney to not furnish any information to the claim examiner, or at the very least to be careful about what it says. At a bare minimum, if the employer decides to fight the UI claim, but expects other employment-related claims and lawsuits, it should strive for the utmost in consistency when explaining the facts behind the claimant's work separation to various agencies and to a court. The employer should not let fear of a defamation lawsuit keep it from reporting the facts behind the work separation; § 301.074 of the Texas Labor Code provides that any information supplied by an employer in connection with an unemployment claim or appeal may not be used as the basis for a defamation lawsuit. In addition, § 213.007 of the Labor Code states that an unemployment claim ruling has no collateral estoppel effect, i.e., the ruling made by TWC or a court in an unemployment claim has no preclusive or evidentiary weight in any other kind of legal action. If the employer decides not to furnish any information, the claimant might be qualified for benefits based upon a lack of disqualifying information. Such a "non-response" would not by itself lead to any penalties from the TWC, as long as the company does not later file an appeal, win the appeal, and cause the claimant to have an overpayment, which would generate liability for having made an "inadequate" claim response.
In the usual case, however, the company wants to defend against the UI claim by having the claimant disqualified and/or its account protected from chargebacks. Thus, when the claim examiner calls, the company will want to cooperate as fully as possible. The employer should try to furnish whatever witnesses have firsthand knowledge of the circumstances behind the claimant's work separation. Their statements will carry the greatest weight, and assuming they are believable, the employer will generally win its case if the work separation was the claimant's fault.
In addition, it is important to submit copies of relevant documentation to the claim examiner. If the examiner asks about something that the company did not submit along with its claim response, the employer should offer to fax a copy of the document to the claim examiner at that time. Anything the claim examiner asks about is likely to be important to the outcome of the case, so furnish documents readily. The types of documents that are often important in a disqualification determination include, but are not limited to:
Even audio and video tapes can be relevant evidence in a case. If such evidence exists and relates to the events leading up to the work separation, submit copies and keep the originals. Be ready to furnish copies of that and the other documentation to the claimant if so requested at any point by the claim examiner. For an appeal hearing, send a copy of such evidence to both the claimant and the hearing officer. Make sure that the tapes are in a format that can be easily played or displayed by commonly-available equipment. If computer evidence is essential to your case, try to furnish printouts and to make your technical expert available to answer any questions about its authenticity that the claim examiner may ask.
Of course, not every case will involve each type of the above evidence. However, almost every case will involve two or more of the above. Whatever you submit to TWC will be available to the claimant, and the reverse holds true as well - you will have the right to obtain copies of any evidence the claimant submits and of any statements of fact the claimant may make in the case. Rest assured that the evidence you provide is not subject to release to anyone outside of the agency, the sole exception being the very unlikely event that the UI claim eventually ends up in court.
Never become argumentative with the claim examiner. Remember, there is nothing, absolutely nothing, that the employer can do to make the UI claim go away or the claim examiner stop asking questions. Instead of arguing with TWC staff, it would be best to discuss your opinions with federal and state lawmakers, because they are the only ones who can change the actual laws. When dealing with TWC, just furnish the facts and let the chips fall where they may. If you followed your own policies and treated the employee fairly, chances are the claim examiner will conclude the claimant should have known that the final incident would lead to discharge, and will in turn disqualify the claimant.
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