UI Forum (UCM)
2010 July - September * Volume 16 * Issue 3
Coaching and Counseling
With so many pressing issues found in any business, the last thing there is time for is the proper coaching and counseling of employees along with the documentation. Although the time spent can seem tedious, consider it an investment in your business or position. You will reap benefits in the future.
When an employee separates from your company, there is a good chance that the employee will file a claim for unemployment benefits. When the claim is issued, the state agency looks to the employer (or ADP as your agent) to supply information about why the employment came to an end. In claims relating to lack of work, the information is usually very simple. However, the issues become more complex in cases where an employee was discharged due to poor performance or voluntarily left due to dissatisfaction. Proper documentation can make the difference in whether or not an employee is awarded unemployment benefits; therefore, make sure that you are not rushing to gather documentation after the notice of claim is received.
What You Can Do
If you notice changes in an employee’s behavior, for example, poor performance or lack of motivation, it is important to address any concerns with the employee. By being alert to employee behavior and acting on inconsistencies, you may be able to redirect the behavior through coaching and counseling. In addition, you are documenting useful information which may be beneficial in the future.
Consider behavior such as a tenured employee whose performance has slipped, or an employee who is “skirting” the rules on a regular basis by arriving to work a couple of minutes late each day or taking longer than allowed breaks. You may need to have a “friendly chat” with either employee about the job rule, performance, expectation, or any other concern. It may be necessary to remind the employee how important he or she is to the business. By bringing the unacceptable behavior to the employee’s attention, discussing reasons for and effects of the behavior, as well as consequences for not changing it, you can give the employee an opportunity to correct the behavior. If the employee’s performance does not improve and the employee chooses to leave the employment, it can be shown through your documentation that the matter was addressed and steps were taken to salvage the employment relationship.
If you do not make an effort to identify and correct performance issues, then you are putting yourself at risk. By not addressing the situation through documented coaching and counseling, the employee can come to believe that the behavior is acceptable because it has been condoned. If the employee is eventually discharged, and the overlooked behavior becomes part of the reason for separation, the lack of coaching and counseling will actually be used against you when determining the employee’s eligibility for unemployment benefits. Therefore, a failure to act on your concerns and address performance issues may result in separation and unnecessary costs.
The Results
It takes time to prepare, coach, counsel, and complete written documentation. However, the benefits that are received can be significant. For example, if the employee’s performance improves, the business is better for it. If the situation still ends in separation, at least you were prepared and can provide useful documentation. You, as an employer, pay the taxes that are used for unemployment benefits, and each claim that is paid out against your potential unemployment tax account can possibly raise your tax rate the next year and for years to come.
The best way to keep your unemployment taxes under control is to carry out sound management practices in hiring, counseling, and separating employees. Your ADP-UCS Client Service Representative would be happy to discuss techniques for proper documentation or coaching and counseling. Remember, with unemployment benefit insurance claims, it is all about documentation and the time spent preparing it is time well spent.
Legislative Highlights
Update on Unemployment Insurance Extensions
The most recent extension of unemployment insurance (UI) provisions originally included in the American Recovery and Reinvestment Act (ARRA) was adopted on April 15, 2010, and extended benefits as follows:
- For claimants, the period during which they can file for Federal Emergency Unemployment Compensation (EUC) and qualify for Federal Additional Compensation (FAC), the extra $25 per weekly benefit amount, was extended to weeks beginning before June 2, 2010. The period during which claimants may claim and be paid EUC/FAC was extended to November 6, 2010.
- For employers, the period during which weeks of regular federal extended benefit payments (EB) would be 100% federally reimbursed was extended to June 2, 2010, with the state option to continue the extended period for payments to November 6, 2010. After that date, EB payments would be 50% chargeable to employers.
As of the date of this publication, the Senate is reviewing other proposals for extending these benefits retroactively, possibly through the end of calendar year 2010. The additional spending related to the EUC/FAC extension would add to the general federal deficit. The extension of the 100% federal reimbursement of EB would add to the deficit in the federal EUCA account, which is funded by employer paid FUTA taxes. Proposals for increasing the current 6.2% FUTA rate (5.4% net rate) are under discussion and employers should also expect increases in state UI taxes as UI trust funds continue to be depleted by the increased duration of UI benefits per claimant.
Florida Additional Time for Employers to Respond
Florida Senate Bill 1736 was adopted on May 17, 2010, and increases the time frame in which an employer may respond to the Determination Notice of Unemployment Compensation Claim Filed, UCB-412. Effective July 1, 2010, the employer must respond to the notice of claim within 20 days after the mail date of the notice, or in lieu of mailing, within 20 days after the delivery of the notice. If a contributing employer fails to timely respond to the notice of claim, the employer’s account may not be relieved of benefit charges. Until this new law goes into effect, employers must continue to respond within 10 calendar days to be considered timely.
Appeal Deadline Extended
In Washington, DC, Legislative Bill 455 passed on May 14, 2010, extending the deadline to file an appeal to a determination from 10 calendar days to 15 calendar days. Should clients receive any notices directly from a state agency, they should be forwarded promptly to ADP-UCS for processing.
Case Study
Unemployment Hearings-Company Policy
When a former employee files an appeal for denied unemployment insurance benefits and there is a hearing, the employer’s communication of company policies will be taken into consideration. But, what happens if the employer does not have a company policy related to the reason for separation? Can an employer still prevail in the hearing?
The Claim
The claimant was a store supervisor in charge of the opening shift and had repeatedly been tardy to work. The store is family-owned with 20 employees and had no formal written disciplinary procedures documented in a company policy handbook. The claimant did not receive any written warning regarding the tardiness, only verbal counseling. The claimant was subsequently terminated for excessive tardiness.
ADP responded and protested the initial claim. The protest was based upon the fact that the claimant was verbally counseled several times regarding tardiness as well as being explicitly told that the tardiness must not continue.
The agency’s determination found the claimant not eligible to receive unemployment benefits. The claimant filed an appeal with a request for a hearing.
The Hearing
An ADP Hearings Representative contacted the employer to review the merits of the case. It was clear that the employer did not have a company policy handbook. The owner stated that he had counseled the claimant several times regarding the tardiness issue. The owner had also stressed to the claimant that, as a supervisor, it was important for her to be on time for work. The day prior to her termination, the claimant failed to show up to work at the scheduled time. The owner sent her a text message asking if she would be reporting to work. The claimant responded that her company uniform was in the clothes dryer and that she would be in as soon as possible—the claimant arrived at work two hours after her response. The next incident was the following day; she arrived 30 minutes late to open the store and said she overslept. The owner terminated the claimant due to her excessive tardiness.
At the hearing, the claimant testified that she felt her tardiness was not an issue since her position was salaried. The claimant stated no prior written warning had been given to her, nor did she know her job was in jeopardy. The ADP representative asked the claimant, “Is it a reasonable expectation for an employee to be on time to work?” The claimant replied, “Yes.” The ADP representative also asked if the owner ever spoke to her about her tardiness. The claimant’s response was, “Yes, I was told I must arrive to work on time”.
The Decision
The judge in this case found in favor of the employer. The decision stated the claimant’s actions were not in the best interest of the employer. It is a reasonable expectation for employees to know that they must arrive for work on time, even if the employer does not have a written policy. The claimant had been told that she must arrive to work on time. Also, the final incident of tardiness did not involve a compelling reason to have caused her to be late reporting for work.
The Final Word
Every case is examined based upon its own merits. Clearly written policies and procedures are important and will assist state unemployment agencies with making a decision about claimant eligibility and employer liability. Even though in this case, the ADP representative was able to show (even without a formal attendance policy) that it was reasonable for the employee to have known that continued tardiness without good cause would not be condoned and could result in discharge due to misconduct. You never want to assume that the claimant is going to agree with everything presented by your side. You don’t want these cases to come down to word against word. Have the company policy readily available and have proof that the claimant received a copy of the policy, whether it’s a signed or an electronic acknowledgment. Always remember that if the company policy is revised, the employees must be informed of the revision. A well-written policy should include all the rules and expectations of the company no matter how “common sense” the rule might seem. It will help throughout the unemployment claim process.
The UI Forum is distributed with the understanding that the publisher is not engaged in rendering legal or accounting services. If legal, accounting, or other professional assistance is required, the service of an attorney or certi?ed public accountant should be sought. This newsletter is published quarterly by Unemployment Compensation Management, a department of Unemployment Compensation Services. © 2010 Automatic Data Processing, Inc.