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PANC

Fall 2023 Conference

Unemployment

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Unemployment Benefits

UI Claims-- Levels of Appeal

• 1) Adjudication

- Initial determination by Adjudicator

• 2) Appeals – “Lower Authority”

- Appeals Referee Hearing

• 3) Board of Review – “Higher Authority” - Review of the Record
• 4) State Court System
• Superior Court
• NC Court of Appeals
• NC Supreme Court

Appeals Hearing

• A quasi-judicial evidentiary, administrative hearing at which sworn witnesses and legal representatives offer testimony and evidence.

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• The hearing is the opportunity for the parties to be heard.

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Role of the Appeals Referee

• Appeals Referee may limit testimony and evidence --- based on relevance, repetitiveness, hearsay
• The Appeals Referee must ensure that all necessary testimony and evidence is made a part of the record and that there is sufficient evidence to resolve any pending issues.
• Appeals Referees not only guide the hearing but actively participate in the questioning of witnesses and examination of evidence.

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4 Criteria - UI Benefits

• Individual must be unemployed due to no fault of their own (determination based on information provided by the individual and their last employer)
• Individual must be considered monetarily eligible (earned sufficient wages to establish a claim)
• Individual must be physically able, available and actively seeking work
• They must register for work with the state's job service office, NCWorks Online.

Reasons for Separation�Responding to a Claim

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• Laid off/Lack of Work
• School Employee Between Semesters or Terms/Likely to Return
• School Employee Between Semesters or Terms/Not Likely to Return
• Still Employed Full Time
• Still Employed Part Time
• On Call/Temporary Status
• Still Employed Hours Reduced by Employer
• Leave of Absence

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• Fired/Discharged
• Retirement
• Disciplinary Separation
• Resigned
• Voluntary Quit/Separation

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Remember…

• Substitute employees, not eligible for unemployment benefits under NCGS 96-15.01 (d).
• Move an employee from full time to part time work, include explanation that only part time work is available.
• Employees losing part of their dual employment, include that only half time work is available.
• If you are offering employee other work assignments and they refuse your offer, you may want to choose “Still Employed, Full Time, Part Time or Hours Reduced.”
• Employee refusing work should be disqualified from benefits, but it depends on the facts.
• You can always appeal a claim in the same manner that you currently practice.

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Definition of Substitute

• 96-15.01 (d) An individual that performs service in a school as a substitute is not unemployed for days or weeks when the individual is not called to work unless the individual was employed as a full-time substitute during the period of time for which the individual is requesting benefits. A full-time substitute is an employee that works more than 30 hours a week for the school on a continual basis for a period of six months or more. (2013-2, s. 7(b); 2013-224, s. 19; 2017-8, s. 2(a).

FAULT

• Discharges are resolved based on fault. Employer must show fault by employee, connected with work.
• Lack of skill, ability or training is not disqualifying.
• If you know an employee isn’t working to the best of their ability, say so and prove it.

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ESSER FUNDING

• Funding Expires 2024-2025

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• Funds no longer available --- Positions Terminate

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Drug and Alcohol Test Appeals

They are DIFFERENT – Employer must establish

• (1) an employee tested positive for a controlled substance
• (2) the chain of custody of the drug-testing sample
• (3) the reliability of the controlled substance examination-affidavit from lab’s authorized representative
• (4) exactly how the employee violated the employer's policy

Give Notice & Document

• Notify employees their jobs are in jeopardy
• Document counseling
• Warnings should be in writing

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Clear Policies

• Make sure your policies and rules are clear and understandable
• Explain your policies and rules to your employees
• Explaining your policies to the UI referee is not the appropriate venue

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Waivers

• Follow your policies

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• If you don’t follow your own policies, you could be deemed to have waived them

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Initial – First Level of Appeal

• Be in writing. An electronic or online written statement is sufficient.
• State that you appeal or disagree with the determination or ruling.
• State the Issue ID number or Docket number that you are appealing.
• State your full name, your employer, and your title.
• State your contact information, including your phone number(s) and email address.

Why Bother to Appeal?

“Don’t want to go to a Hearing?????”

~ Prepare

~ Find the Right Witnesses

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• Appeals Referee’s decision is based solely on sworn testimony and evidence presented at the appeals hearing.

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• If you don’t participate the hearing may go forward without you. If you filed the appeal, your appeal may be dismissed.

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• This is your opportunity to present evidence and witness testimony.

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• Prepare to present your case with the assumption that you will not get another opportunity.

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• If you are unable to prepare or arrange the proper witnesses, make a motion to continue. If your motion is denied, you can raise that as an exception to the Appeals Referee’s decision at a later appeal.

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Tips on Successful Hearing

• Focus on the “REAL REASON’’ for Discharge

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• Think, Plan and be Prepared

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• The Right Witness

Hearing Etiquette

• Be Clear and Specific in your Argument
• Provide Reasons for Discharge/Dismissal
• Preserve Appeal Rights - Object
• Always Make Closing Statements – Summarize
• State Why You Believe you Should Win

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Department of Employment Security

Des.nc.gov

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• FAQ, information on UI claims, appeals, links

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Filing an Appeal - des.public.appeals@commerce.nc.gov.

• NCGS Chapter 96, Employment Security Law
• 96-14.1 (claims)
• 96-14.5 (quits), 96-14.6 (discharges)
• 96-14.7 (other reasons)
• 96-14.8 (military spouse and domestic violence)
• 96-14.10 (disciplinary suspension)
• 96-14.11 (suitable work and layoff recall)
• 96-15(b) adjudication and (c) appeals
• 96-15.01 (partial unemployment, separation pay, substitute school personnel)

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2023 Year End UI Charges

• Invoice from DES will be sent Late Fall
• UI Instructions and Worksheets from DPI
• Complete Individual Employee Worksheets and Master Worksheet
• Send Payment to DPI as Instructed

Separation Due to Unavailability v. State Disability Benefits

• Establish eligibility and counsel employee about their State Disability Benefits before Separating Due to Unavailability

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• Eliminates Employee from your pay status
• Will NOT eliminate WC benefits
• Not Eligible to collect UI Benefits
• Written in Policy not Law

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THANK YOU

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• Eileen Townsend, CPCU, AU

Chief of Insurance

919-810-8099

eileen.townsend@dpi.nc.gov

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This PhotoThis Photo by Unknown Author is licensed under CC BY-NC-SA

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is Photois Photo by Unknown Author is licensed under CC BY-ND