Unemployment Insurance


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Presented at the National Legal Aid and Defender Association (NLADA) Substantive Law Conference, July 2010. With Rick McHugh, National Employment Law Project, and Steve Gray, Michigan Unemployment Insurance Project

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  • Explain reimbursing/contributing employersBriefly explain federal oversight, timeliness/quality standards?
  • Good place to mention ARRA modernization/reforms?
  • Richardson v. Perales, 400 U.S. 389, 402-6 (1971)
  • Unemployment Insurance

    1. 1. Unemployment Insurance<br />NLADA Substantive Law Conference<br />July 22, 2010<br />Steve Gray, Michigan Unemployment Insurance Project<br />Rick McHugh, National Employment Law Project<br />Susan Nofi-Bendici, New Haven Legal Assistance<br />
    2. 2. Insurance funded by a tax on employers (workers pay UI tax in 3 states)<br />Provides economic support for individuals who are involuntarily unemployed<br />Not based on hardship<br />Eligibility determined by state law, which must conform to basic federal requirements<br />2<br />What is UI? <br />
    3. 3. Provides partial income replacement for workers who are involuntarily unemployed<br />Stimulus for local economies: maintains consumer spending & prevents ripple effects on area businesses. <br />UI benefits automatically stimulate business: $1.00 in UI benefits = $1.63 in added GDP. <br />Promotes attachment of unemployed workers to the labor market & sometimes specific employers<br />3<br />Goals of UI Program<br />
    4. 4. Monetary Eligibility<br />Does the worker have enough recent wages to qualify?<br />
    5. 5. Monetary Eligibility<br />Base Period / Alternative Base Period<br />Missing wage credits<br />Employer did not report wages<br />Noncitizen must have been authorized to work when wages earned<br />5<br />
    6. 6. Monetary Eligibility<br />How much is the benefit?<br />Based on earnings in base period<br />Maximum benefit amount<br />Allowance for dependant(s)<br />Benefit for partial unemployment<br />6<br />
    7. 7. Monetary Eligibility<br />How long can the worker collect?<br />Waiting period in some states<br />26-30 week maximum in benefit year for regular UI<br />Federal extensions (and hopefully more federal extensions)<br />After exhausting benefits, must go back to work and earn enough to requalify<br />7<br />
    8. 8. Non-Monetary Eligibility<br />Worker must have a non-disqualifying separation<br />Worker must meet ongoing weekly eligibility requirements<br />8<br />
    9. 9. Separations<br />Did the worker become unemployed for a disqualifying reason?<br />
    10. 10. Willful Misconduct : Common Definition<br />Act or omission contrary to employer’s interest<br />Committed intentionally or with reckless indifference to the consequences<br />No mitigating circumstances<br />Connected with or in the course of employment<br />10<br />Discharges<br />
    11. 11. Examples of disqualifying misconduct:<br />violation of duties owed to employer<br /> violation of employer policies<br />attendance violations<br />fraud<br />criminal acts<br />drug/alcohol use<br />positive employment drug test<br />illegal strike<br />11<br />Discharges<br />
    12. 12. Discharges<br />Consequences of disqualification vary by state. <br />Can be:<br />Fixed or Variable period<br />Duration of the unemployment, or longer<br />Reduction/cancellation of benefit rights<br />Some states impose a harsher disqualification (1 year or cancellation of wage credits) if the claimant was discharged for a severe offense, criminal conduct<br />
    13. 13. Voluntary Quit<br />In general, to qualify the worker must have had a compelling reason for leaving and must have made a reasonableattempt to resolve the problem.<br />In 11 states the worker can avoid disqualification if quit for good cause that does not have to be connected to the work: AK, CA, HI, MS, NY, OH, OR, PA, RI UT, VA<br />
    14. 14. Voluntary Quit<br />In most states the “good cause” generally must be connected to the work itself (e.g., wages, hours, working conditions)<br /> Depending on the state, exceptions may include:<br />Compulsory Retirement<br />Leaving to accept other employment<br />Domestic violence<br />Illness<br />To join armed forces<br />Transportation difficulties<br />To marry; to move with spouse; marital, domestic or filial obligations<br />
    15. 15. Voluntary Quit<br />As with disqualifying discharges, the consequences vary by state: <br />Generally, worker is disqualified until returns to work and earned a certain amount of wages<br />In some states, reduction / cancellation of benefit rights or removal of wage credits<br />
    16. 16. When is a quit not really voluntary?<br />Quitting in lieu of discharge<br />End of fixed employment contract<br />Demotion / involuntary transfer<br />Claimant physically unable to do the job<br />Incarceration<br />Loss of occupationally required license<br />Characterizing the separation<br />
    17. 17. Able and Available for Work<br />Is the worker genuinely <br />attached to the labor market?<br />
    18. 18. ContinuingEligibility<br />In addition to establishing monetary eligibility and a non-disqualifying separation, a claimant must certify each week that he or she is:<br />Able to work, physically and mentally;<br />Available for suitable work without unreasonable restrictions; and<br />Actively seeking work.<br />
    19. 19. ContinuingEligibility<br />If claimant is not available for work during a given week, can correct conduct and restore eligibility (contrasts with disqualifications).<br />The claimant must also certify that he/she has not refused an offer of suitable work.<br />
    20. 20. Generally, there must be a bona fide offer of work made by the employer.<br />The work offered must be suitable within the meaning of state law. <br />Longer unemployed, more likely claimant will be expected to lower expectations.<br />20<br />Refusal of Work<br />
    21. 21. If the work offered is suitable, the claimant’s refusal may be excused if there is a compelling reason.<br />However, that reason may raise other eligibility issues (e.g. availability).<br />A disqualification is imposed if the claimant is found to have refused suitable work without a compelling reason.<br />21<br />Refusal of Work<br />
    22. 22. Burden of proof <br />Hearsay: admissible, but whether the hearsay is sufficiently reliable to be substantial evidence depends on Richardson v. Perales factors:<br />Availability of declarant as witness<br />Declarant bias<br />Detail and quality of hearsay<br />Evidentiary Issues<br />
    23. 23. Lack of discovery: how to prepare for hearing, avoid surprise, particularly with employers that didn’t participate at the first level hearing<br />Audio/video evidence<br />Admissions given during loss prevention questioning<br />Evidentiary Issues<br />
    24. 24. Assessing Incoming Cases <br />Has appeal been filed? If appeal is/was late, investigate whether there was good cause.<br />Advise claimant re: continuing to file weekly claims, maintaining log of work search.<br />Determine whether hearing has been scheduled / whether postponement is needed.<br />Obtain and review record. <br />Determine what evidence is needed: medical documentation, additional witnesses, etc.<br />
    25. 25. Law school clinics and the MiUI model<br />Pro bono attorneys<br />Pro se clinic<br />Capacity Building <br />
    26. 26. Volunteer law students provide free UI representation under supervision of attorney<br />Independent non-profit law firm<br />Partnership with law student organizations<br />Assistance at every stage of claims process<br />Community referral partners: unions, legal aid programs, legislative offices, <br />Private foundation funded<br />MiUI ModelOverview<br />
    27. 27. Great opportunity for students to get real world lawyering experience quickly<br />Basic litigation skills training – direct and cross<br />Opportunity to generate a writing sample<br />Not as big of a time commitment as a clinic<br />Law student pro bono obligation<br />Attractive to 1Ls that can’t get into a Clinic yet – target 2nd semester 1Ls<br />Law student organization partner is key to student recruitment and retention<br />MiUI ModelRecruiting Law Students<br />
    28. 28. Now is the time – unemployment and UI are in the news everyday<br />UI non-monetary denials rates are surprisingly high (40% in MI)<br />Return on Investment (ROI) Calculation<br />$125K = $1million to local community (26 weeks)<br />$300/wk x 26 weeks = $7800/claim x 250 cases 50% success rate<br />$125K = $3.7 million to local community (99 weeks)<br />$300/wk x 99 weeks = $29,700/claim x 250 cases 50% success rate<br />Public benefit access seems to be of interest to funders right now (United Way)<br />MiUI ModelAttracting Funding<br />
    29. 29. Nonfraud overpayments: 37 states provide for a waiver<br />Recovery of nonfraud overpayments: recouped from UI benefits, state income tax returns, civil action. Some states charge interest. <br />Recovery of fraudulent overpayments: recouped through the above means plus claimant subject to fines/penalties, disqualification from benefits and criminal prosecution<br />Overpayments / Waivers<br />
    30. 30. Overpayments / Waivers<br />Nonfraud waivers of overpaid federal extensions: <br />EUC08: If the state has waiver provisions that require finding that overpayment was not claimant’s fault and that repayment would be contrary to equity and good conscience, state law applies. If not, state may adopt optional EUC08 waiver set forth in Attachment A to UIPL No. 23-08, A-11.<br />EB: State law re: overpayments and recovery applies. 20 C.F.R. § 615.8(a)(7)<br />