Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.
Interesting take on a provision in the newly proposed Worker’s Compensation Advisory Council (WCAC) bill: https://wisconsinui.wordpress.com/2016/01/15/substantial-fault-and-misconduct-principles-from-unemployment-law-to-come-to-workers-compensation/
One of the provisions in the new WCAC bill would allow denial of temporary disability/lost time benefits if a worker is terminated for “misconduct” or “substantial fault.” These terms will be defined based on unemployment law standards. Misconduct and substantial fault recently were brought into play with changes to the unemployment insurance laws in Wisconsin. These legislative changes certainly were employer-friendly, allowing employers a greater ability and opportunity to deny unemployment benefits.
With worker’s compensation poised to adopt this standard for lost time benefit denials, workers definitely could face a rough spot when recovering from a job injury. If the employer terminates a worker for alleged misconduct or substantial fault, they would be denied unemployment benefits and worker’s compensation benefits–until an administrative hearing is held to determine the legitimacy of the employer’s actions. The possibility for many worker’s compensation hearings turning into “he said/she said” determinations like in unemployment cases is a strong possibility.
In the bigger picture, all sides must remember that this was a compromised agreed-upon bill by labor and management. Both sides gained and gave up provisions–this produces the stability in the worker’s compensation system.
Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
Eligibility for Unemployment Compensation in Wisconsin will change substantially in 2014. For more than 70 years, an employee would only be found ineligible for Unemployment Compensation if he quit a job or was found guilty of “misconduct”. Misconduct was defined under a 1941 case as “willful or wanton disregard of an employer’s interest.” Mere inefficiency or unsatisfactory conduct or failure in good performance as a result of an inability to meet job expectations was not misconduct.
As a result of the aggressive efforts of Republican lawmakers (who ignored “agreed-upon” bill proposed by the non-partisan Unemployment Compensation Advisory Council) many workers will be deemed ineligible for Unemployment Compensation benefits.
A new basis for disqualifying workers from receiving Unemployment Compensation benefits will be called “Substantial Fault” which may include a series of inadvertent errors made by the employee and violations of work requirements after the employer warns the employee about the infraction.
In addition, a series of situations in which a voluntary resignation would not disqualify a worker from benefits have been severely restricted.
In the worker’s compensation arena, if an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year of wages applies. The purpose of the statute is to prevent discrimination against employees who have previously sustained injuries, and if there are positions available within the injured employee’s restrictions, to assure that the injured person goes back to work with his former employer. This statutory protection is an exception to the general rule of “at will” employment in Wisconsin – where an employer can hire, fire, and make employment decisions for any reason or no reason at all except for a discriminatory reason defined by law (like race, gender, religion). Under the Wisconsin Worker’s Compensation Law, a work injury is essentially an additional protected category. The worker’s compensation Labor Industry and Review Commission has held that refusal to rehire benefits are not “back pay for Unemployment reimbursement purposes.”
Under Unemployment Compensation law, no finding of fact or law made with respect to liability under the UC provisions is binding in an administrative proceeding under the Worker’s Comp law. As such, the Unemployment decision generally is inadmissible in a worker’s compensation hearing. However, some litigants attempt to use an Unemployment Insurance file for other purposes – beyond the findings of fact and conclusions of law – in a worker’s compensation hearing. A finding in the Unemployment Compensation arena by an initial Unemployment Compensation deputy, for example, may prove admissible in the worker’s compensation arena on the issue of misconduct, thus providing the employer in a worker’s compensation claim a defense to a refusal to rehire claim.
Today’s post comes from guest author Kit Case from Causey Law Firm.
Injured workers transition from time loss compensation under their workers’ compensation claim to unemployment compensation when they are released to return to work but do not have a job available to them. In many cases, disputes arise as to whether the release to work and termination of workers’ compensation payments is appropriate. Often, the worker tries to find physically-appropriate work while collecting unemployment compensation during the dispute process but, once their attorney secures payment of back benefits under the workers’ compensation claim, an overpayment of unemployment benefits has occurred due to the overlap between the two systems. When this happens, workers should:
- Notify the unemployment insurance system that they are continuing to seek payment from the workers’ compensation system, but that they are involved in an appropriate job search during the dispute process.
- Immediately share with the workers’ compensation attorney any notices or orders received from the unemployment insurance system. These are usually NOT mailed to the attorney of record in a workers’ compensation claim and the notices often have limited time periods within to file a protest or request for reconsideration of the determination.
- Hold in savings from the workers’ compensation payment the claimed unemployment overpayment amount during the dispute process until a final overpayment notice has been issued, or have the workers’ compensation attorney hold this amount in their trust account. If this is not possible, be prepared to enter into a repayment agreement with the unemployment insurance system once a final overpayment figure has been determined.
- Seek assistance from the workers’ compensation attorney to document all attorney fees and costs paid as part of the effort to obtain back benefits under the workers’ compensation claim. Submit this documentation to the unemployment insurance system and request a reduction in the claimed overpayment to take these attorney fees and costs into account.
- Continue to send any notices or orders to the workers’ compensation attorney.
- Once the overpayment has been repaid, check to see if the receipt of workers’ compensation back benefits changes your tax obligations. In many states, workers’ compensation payments are not taxable income, but unemployment benefits are taxable. If there is a significant payment of back benefits under the workers’ compensation claim, it may be worthwhile to file an amended tax return with the IRS to document the lower taxable income figure.
Cooperating with the unemployment claims adjudicator can help you get benefits.
Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.
Answer your phone.
This is the advice a friend of mine who works as an unemployment claims adjudicator would give to people filing unemployment. Oftentimes people are denied unemployment benefits they earned through their employer because they neglect to cooperate in the initial investigation of their claim. An adjudicator is assigned to determine eligibility for unemployment benefits. In short, they talk to you and your employer about why you are no longer employed. If the adjudicator determines that your were fired for intentionally disregarding reasonable work-related expectations of your employer or that you quit without good cause, then you will be found not to be eligible for unemployment benefits. Of course, you can appeal that decision, but that will lead to a delay in you receiving benefits, and it might also mean finding a lawyer to represent you in the appeal hearing.
The problem someone creates for themselves when they don’t talk to the adjudicator is that the adjudicator will only hear the employer’s side of the story. If an employee has documents that would show they did not commit work-related misconduct or that they quit with good cause, they should give those to the adjudicator as well.
Unemployment is stressful. Failing to communicate with people who might be able to help you just makes matters worse for yourself and family.