Unemployment Insurance: Tips for protecting your rates

Business

Unemployment Insurance (UI) is an unavoidable cost that almost every employer is forced to endure. While employers cannot necessarily avoid paying the tax for unemployment insurance, they can reduce the rate of tax that they have to pay by reducing the number of claims filed against them and the amount of benefits paid out on those claims. Below is information regarding how unemployment insurance works and ways that an employer can dispute any claims from former employees for unemployment benefits.

Background information about unemployment insurance

Unemployment insurance is both a federal and state program that was created more than 70 years ago as “an economic line of defense against the effects of unemployment, for not only the individual, but also the local community.” Unemployment insurance is designed to alleviate financial strain for a person who becomes unemployed through no fault of his or her own by replacing some of the wages that person has lost. Financially assisting an unemployed person while he or she actively looks for a new job not only benefits the individual, but also the local economy in which he or she lives. It allows the person to maintain basic necessities such as food, clothing and shelter while that person is temporarily unemployed.

The program is funded by taxes paid by employers on the amount of wages the employer pays to his or her employees. Each employer’s tax rate is different. The rate of tax an employer pays is influenced by the number of prior claims for unemployment benefits that have been filed against that employer. The more claims that have been filed against an employer, the higher the tax rate is for that employer. No deductions are made from employees’ wages in California to finance this program.

When the unemployment insurance program was initially introduced, only employers with eight or more employees were required to participate in the program. In 1946, the program was altered to include all employers who employ one or more workers and who have paid wages in excess of $100 during any calendar quarter within the current or previous calendar year. Certain state and federal agencies are exempt from unemployment insurance.

Filing a claim

To initiate the process of receiving unemployment benefits from unemployment insurance, the former employee must file a claim with the Employment Development Department (EDD). An employee can file a claim with the EDD online, through the mail or over the telephone. There is no specific time period in which the employee must file a claim. An employee can file a claim any time after he or she is terminated or his or her hours are reduced. After a claim is filed, there is a mandatory one-week waiting period in which the EDD will process the employee’s claim and determine whether or not the employee is eligible to receive unemployment benefits. The EDD will conduct interviews with the employee, employer and anyone else it believes is necessary to determine the employee’s eligibility for unemployment benefits.
 
The requirements an employee must satisfy to receive unemployment benefits are:

  • Employee must file a claim;
  • Employee must be unemployed or have substantially reduced work hours through no fault of his or her own;
  • Employee must be able to work and available for work;
  • Employee must be actively seeking work.
  • Employee must have earned enough money during the base period (see below).
  • Employee must meet the eligibility requirements each week benefits are claimed.

After filing a claim, every two weeks the EDD re-verifies that the employee still satisfies each of these five requirements. If at any time the employee does not meet one of these criteria, the EDD can reexamine whether the employee is entitled to unemployment benefits.

Employer response to claims

After an employee files a claim for unemployment, the EDD will mail the employer the form Notice of Unemployment Insurance Claim Filed. An employer has 10 days to contest in writing the receipt of unemployment benefits by the specific employee. The employer’s response should contain all material, relevant facts that demonstrate the employee is not eligible for unemployment benefits. The most common way for an employer to contest an employee’s claim for unemployment benefits is to dispute that the employee was terminated, discharged, etc. through no fault of his or her own. Rather, the employer would argue that the employee’s “misconduct” is what led to unemployment.

To prove an argument for misconduct the employer must show:
The employee owed the employer a duty. Duties include such standards as showing up for work, refraining from harassing conduct or fighting, abstaining from theft, etc.

There was a substantial breach of the duty owed by the employee to the employer. Single violations of a duty are not generally enough to establish misconduct unless a major infraction is involved. Normally, there must be proof that the unacceptable behavior had been repeated throughout the employment. Written warnings or documentation to prove these repeated violations or breaches will significantly assist an employer when disputing an employee’s claim for unemployment benefits.

 The breach must be willful, wanton or deliberate on the part of the employee. This standard measures the employee’s own role in his or her termination. To satisfy this element the employer must show that the employee was aware of the unacceptable behavior and could have controlled it. Negligence or poor performance is generally not enough. Once again, documentation is a valuable tool.

 The breach disregards the employer’s interest and injures or tends to injure the employer’s interest. In order to prove this element the employer must show that he or she suffered or could have suffered financial loss as a result of the former employee’s actions, or that the employer’s business was significantly interrupted as a result of the employee’s actions. The misconduct must be work related.

Finally, the employer must show that there was a final incident that triggered the termination. The termination needs to have been caused by this final incident of misconduct. The EDD usually examines the final incident first and then works backward over the employment relationship. Thus, the employee’s failure to improve after a warning does not imply misconduct because it does not indicate a particular event that triggered the discharge. The final incident should contain the four elements required to prove misconduct listed above.
 
The following are examples of misconduct that will render an employee ineligible for unemployment benefits:

  1. Voluntary quitting without good cause.
  2. Termination for misconduct.
    1. Mere inefficiency, unsatisfactory conduct, failure in good performance due to inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good-faith errors in judgment or discretion are not deemed “misconduct.”
    2. An employee’s inability to perform essential job duties generally doesn’t meet the definition of misconduct.
    3. An employee’s refusal to sign a disciplinary notice to acknowledge receipt of that notice is not deemed misconduct.
  3. Refusal to perform suitable work.
  4. Intentional violation of reasonable company rules. The employer must be able to prove the employee had knowledge of the company rules before he or she violated the rules. The company rules must also be lawful and reasonable.
  5. Poor attendance. The employee must have been able to attend work and repeatedly failed to do so. The absence must be unexcused and for a non-compelling reason (i.e., subpoenaed to court or taking care of an ill family member would not fall under misconduct).
  6. Substantial criminal activities.
  7. Irresistible compulsion to use intoxicants. There must be evidence of the employee’s use of intoxicating substances on the job.
  8. Inexcusable fighting with other employees.
  9.  Insubordination if the employer’s order was reasonable and the employee’s refusal to comply was willful and unjustified.
  10. Employee was a student employed on a temporary basis whose employment ended so that he or she could return to school.

Examples of conduct or terminations of employment that are not generally considered misconduct or sufficient to deny an employee unemployment benefits are:

  • Layoffs
  • Voluntary quitting for “good cause.” Good cause occurs when a substantial motivating factor causes the claimant to leave work. The factor need not relate to work. It must be a real, substantial and compelling reason that would cause a reasonable person who wants to remain employed to leave work under the same circumstances.
  • Depending on the circumstances, leaving work for good cause might include.
  • Going to school.
  • Change in travel time or distance.
  • Moving beyond reasonable commuting distance with a spouse or registered domestic partner. This does not include a significant other who is not a spouse or registered domestic partner.
  • Being required to care for a seriously ill child.
  • Leaving an employer who does not address serious harassment or safety issues.
  • Choosing to be laid off in place of an employee with less seniority, if a collective bargaining agreement allows this practice.
  • Protecting himself or herself or his or her family from domestic violence.
  • The following examples do not generally constitute good cause:
  • Increased child care costs.
  • Looking for another job.
  • Change in job duties or demotion.

 If an employee resigns, the employer should request the employee to put the reasons for his or her resignation in writing in case the employee later files for unemployment insurance benefits.

Other ways to contest an employee’s request for unemployment benefits are to prove that the employee is not actively looking for work or is not ready or willing to accept work, is not eligible to work in the United States, has made false statements or withheld information for the purpose of obtaining unemployment insurance benefits or is working full-time. If an employer discovers information at any time during the period in which the employee is requesting or receiving unemployment benefits that would affect the employee’s eligibility of benefits, the employer can submit that information to the EDD to stop the employee’s receipt of such benefits. If the information discovered involves an employee’s refusal to accept suitable work, the employer must submit that information within 10 days after the employer discovers it.

If the employer wishes to contest eligibility when preparing the response to the EDD regarding an employee’s claim for UI benefits, the employer should include an overview of the employee’s history with the company (hire date, last day worked, salary, job title) and the reasons for the discharge. The response should also include a discussion regarding each of the five elements listed earlier for proving an argument for misconduct. The employer should make sure to address each element and provide supporting facts to show that each element is satisfied. Any documents that support the employer’s position may also be included with this response but are not required. If an employer wishes to contest a former employee’s eligibility, he or she should do so carefully and should consider using legal counsel to assist. Any response can be used as evidence in a subsequent wrongful termination or other related lawsuit by the former employee, so employers must not take these responses lightly.

Decision and appeal process

Once an employer contests an employee’s claim for unemployment benefits, the EDD will gather all necessary information and provide a written decision. If the EDD determines that the employee is ineligible to receive unemployment benefits, the employee’s claim or already existing payments will be denied. After being disqualified, an employee can reapply for unemployment benefits after resolving whatever issue caused the employee to be disqualified/ineligible.

If the EDD determines the employee is eligible to receive unemployment benefits, an employer has the right to protest this decision. If the employer chooses to protest the decision, the employer must mail in an appeal with the following information within 30 days from the date the EDD mails the notice of its decision to the employer:

  • Name of the business and the business address
  • Employer’s reserve account
  • Employee’s social security number
  • Name and mailing address of any representative
  • Reason for the appeal
  • A copy of the decision that the employer is appealing
  • If the appeal is late, a reason why the employer failed to comply within the required 30-day period.

If an employer files an appeal later than 30 days after the notice of the EDD’s decision was mailed, the appeal may still be accepted if the Administrative Law Judges (ALJ) who hear these appeals determine that there was “good cause” for the employer’s late request. If the employer’s appeal is accepted, the ALJ will conduct a hearing in which both the employer and employee will be present and allowed to put forth evidence, including witnesses. Before the hearing, all of the documents within the file regarding this claim will be available for both parties to review. These documents will include not only the documents provided by the parties, but also any documents gathered by the EDD representative overseeing the claim.

An employer doesn’t have to attend the appeal hearing in person. He or she can request to attend the hearing by telephone instead. If the employer requests to appear by telephone, the EDD will notify the employer of the telephone number to call and the time of the hearing, along with a copy of the claims file before the hearing. After the hearing, the ALJ will issue its decision to all parties. Again, employers should recognize that evidence submitted and testimonies received at these hearings can be used for impeachment and other reasons in other proceedings. 

Appealing to the california unemployment insurance appeals board

If the employer disagrees with the ALJ’s decision, he or she can file a letter of appeal with the California Unemployment Insurance Appeals Board (CUIAB). Again, this appeal must be filed within 30 days of the mailing date of the ALJ decision, unless the employer can show good cause for filing it later. In the letter of appeal, the employer must be sure to identify the parties, the case number, the employee’s social security number, the employer’s reserve account, the name and mailing address of any representative, the ALJ’s decision and the reason(s) for the appeal.

After the CUIAB receives the letter of appeal, it will send a letter to acknowledge receipt of the appeal. Within 10 days of this letter, the employer or employee must request to submit written or oral argument. The CUIAB generally does not consider new evidence in its decision, and only grants oral or written argument in cases when time permits or when there are unusual issues. The decision of whether to accept written or oral argument is solely at the discretion of the CUIAB.

Once a decision is made by the CUIAB, the employer will receive written notification in the mail. At this point, all administrative remedies are exhausted. If an employer wants to appeal the CUIAB’s decision, he or she must do so through the court system.

Employee’s benefits

If an employee is ultimately determined eligible for unemployment benefits, then the amount of compensation he or she receives will be determined by the employee’s “base period” earnings. The base period is a 12-month timeframe beginning approximately 15 to 17 months prior to the date the claim is filed. The EDD generally omits the most recent three to five months before the claim and uses the 12 months before the omitted months as the base period.
Once the base period is established, the EDD divides the 12 months into four quarters. The highest quarter of earnings during the base period will determine the amount of benefits the employee will receive each week. The total amount that an employee may receive for a claim is either 26 times the weekly benefit amount or one half of the total base period wages, whichever is less. To be eligible for unemployment benefits, an employee must have earned at least $1,300 in one quarter of the employee’s base period, or have earned at least $900 in the highest quarter and total base period earnings of 1.25 times the employee’s highest quarter earnings. The minimum amount of benefits an employee can receive each week is $40 and the maximum amount is $450.

If more than one employer employed an employee during the base period, the EDD will request information from those employers regarding the employee’s earnings. A “base period employer” must respond to the EDD’s request for information within 15 days after the request is mailed from the EDD. The response provided by the base period employer should also include information about why the employee resigned or was terminated from his or her employment with that base period employer. After receiving this information, the EDD will determine if the base period employer’s reserve account should be charged for the employee’s claim for unemployment benefits. If the base period employer fails to respond within 15 days, the base period employer’s reserve account will likely be charged. 

Important documents for employers

As a reminder, below is a list of documents provided by the EDD to an employer regarding unemployment insurance and/or claims filed by former employees for unemployment insurance benefits, which may require an employer to provide a response.

Unemployment Insurance Claim (DE 1101CZ): The DE 1101CZ will be sent only to the claimant’s last employer. An employer has 10 days to respond to the notice. It is vital to explain why the employer no longer employs the employee. This information, along with the claimant’s statement, will be used to determine the individual’s eligibility for benefits. If the EDD does not receive a timely response to this form, the employer will not get another chance to question the claimant’s eligibility.

Notice of Wages Used for Unemployment Insurance Claim (DE 1545): The DE 1545 will be sent to an employer whose wages will be used to calculate the claimant’s benefit award, referred to as the “base period employer,” after the first payment has been made on a claim. This notice indicates the claimant is drawing benefits. An employer has 15 days to respond. With detailed personnel records, an employer will be better able to explain why the individual left the organization. This information will be used to determine if the employer’s reserve account will be charged. If the EDD does not receive a timely response, the employer’s account will be charged and the employer loses the opportunity to request a chargeability ruling.

Statement of Charges to Reserve Account (DE 428T): The DE 428T is an itemized list of benefit charges to an employer’s reserve account, which covers a one-year period beginning July 1 and ending June 30.  The DE 428T will be sent annually if an employer’s reserve account is charged for benefits paid to a former employee. An employer has 60 days to protest any charge shown.  

Notice of Employer Contribution Rates and Statement of Unemployment Reserve Account (DE 2088C): The annual mailing of the DE 2088 will notify an employer of his or her forthcoming contribution rate and all the factors used in computing that rate. An employer has 60 days to respond. An employer should verify the accuracy of the figures on this form because an error may cause an incorrect rate assignment.

New Quarterly Contribution Return and Report of Wages (DE 9) and New Quarterly Contribution Return and Report of Wages (continuation) (DE 9C): Employers must file quarterly returns reporting total subject wages and Unemployment Insurance and Disability insurance wages and contributions, as well as to report employee wages and personal income tax withheld quarterly, or will be subject to penalties.

This report was reviewed for legal accuracy and updated in 2017 by Van Vleck, Zaller + Robinson LLP.