Wednesday, December 19, 2012

HB 127

Tom Berry
Revise unemployement insurance laws

1 comment:

  1. This bill has a seemingly innocuous New "Section 1" that is problematic from a practical perspective:

    "NEW SECTION. Section 1. Employing unit responsibility to respond to department requests for information -- waiver of rights. (1) An employing unit or its representative shall provide to the department wage, employment, separation, and eligibility information requested by the department in a timely manner as established by rule.

    (2) (a) Subject to the provisions of subsection (4), the department shall consider an employing unit, with respect to a specific claim, to have waived its rights as provided in subsection (3) for:

    (i) untimely filing information required under subsection (1) without good cause; or

    (ii) failing to provide complete answers in response to the department's request for information.

    (b) A request from the employing unit or its representative for a hearing without providing the requested information is considered to be a failure to provide a timely or an adequate response as provided in subsection (2)(a).

    (3) A waiver of rights provided for under subsection (2) means that the department shall:

    (a) consider the employing unit to be no longer eligible as an interested party with respect to the claim; and

    (b) deny credit to the employing unit for any resulting erroneous payment to the claimant.

    (4) The department shall accept information submitted by an employing unit or its representative after the required period established by rule and before the deadline set by 39-51-2402(3) if the information is related to a separation from employment or concerning a claimant's eligibility for benefits. After accepting the information, the department shall issue a determination or redetermination that must include a decision on whether the employing unit or its representative presented good cause for failure to meet the timely or complete information requirements in subsection (2). For good cause shown, the department may in its determination or redetermination rescind the waiver of rights.

    (5) An employing unit that elects to make payments in lieu of contributions pursuant to 39-51-1103 is also subject to the provisions of this section."

    When unemployment claims are filed, the claims examiner typically contacts the employer to ascertain whether or not the facts alleged by the claimant are true.

    The problem is that, quite often, the claims examiner asks completely irrelevant questions, asks the employer to provide "documentation" regarding matters for which "documentation" is neither relevant nor necessary, etc. Thus, as an employer, you are faced with the prospect of spending an inordinate amount of time trying to dig up information requested by UI that you know full well to be irrelevant, or simply ignoring the questions posed by UI and supplying information that you know to be relevant. Moreover, there often seems to be a bias by the claims examiners in favor of the claimants, which results in claims examiners serving as de facto advocates for the claimants, rather than impartial fact-finders.

    The bill should provide an appeal mechanism for employers to challenge the department's definition of "complete information" or "adequate response," and to assert that the infomation provided to the department is indeed sufficient to enable the department to determine whether or not a particular claimant was discharged for "misconduct" or not. If such determinations are left exclusively up to the claims examiners, it is not a sufficiently balanced approach.


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