Category Archives: Unemployment

Blog roundup: Drug testing for unemployment benefits is law by Facebook meme

Posted on October 24, 2019 by Jon Rehm

Some of my blogging is based off reacting to what other bloggers write. I read two posts from other midwestern bloggers that merit some quick discussion.

Wisconsin Unemployment Blog — The United States Department of Labor published a new rule allowing states to drug test unemployment applicants. This is dumb for a lot of reasons.

Drug testing as a condition receiving a government benefits is essentially making law based on the memes shared by your aunt or uncle on Facebook. When some states tried drug testing for government benefits, the amount of positive results was minimal and the cost of drug testing far exceeded the savings in denying benefits.

Secondly, this policy assumes unemployment is welfare or an unearned benefit. This is false, employers have to pay unemployment taxes. So employees can only receive benefits if employers have paid benefits on their behalf.

Finally conditioning receipt of unemployment benefits on conduct not connected with employment, undercuts the whole idea of unemployment insurance. I’ve written earlier that I believe that unemployment insurance is one of the strongest and most overlooked factors pushing against the influence of the employment at-will doctrine. Drug testing unemployment applicants weakens those protections.

Ohio Employer’s Blog — For the sake of my employment law practice, maybe I should emulate Bo Pelini and move from Nebraska to Ohio. Ohio has no exhaustion of remedies requirements and a six-year statute of limitations on discrimination claims. Another Jon, Jon Hyman, thinks this is terrible and is glad Ohio is considering legislation to shorten statute of limitations on employment law claims in Ohio and require administrative filings in discrimination cases.

In my view, exhaustion of remedies amounts to private sovereign immunity for employers. Forcing employees to file administrative charges can also lead to severe delays in investigating claims if civil rights agencies are underfunded. While it is true that civil rights agencies can helps settle or conciliate claims, my experience is that it helps to do some investigation before conciliating or settling a claim. If claims aren’t being investigated conciliation is often futile. Secondly conciliation often takes considerable staff time that could be better used in investigating cases

Can I use the decision in my unemployment appeal in my wrongful termination case?

Posted on August 5, 2019 by Jon Rehm

Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute. Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

How to Apply for Unemployment while Workers’ Comp Is Denied

Posted on June 10, 2019 by Brody Ockander

As we have blogged before, it is possible to receive unemployment benefits, even though you are off of work because of a workplace injury. . You do not have to be fired to qualify for unemployment benefits. You can get unemployment benefits if you quit for good cause.

One good cause is if you quit because you are not physcially able to do your job. For example, if your work comp claim has been denied, but you have work restrictions that your employer is not accommodating, you can qualify for unemployment benefits.

When I explain this to my client, the question I often receive is how to actually apply for those unemployment benefits. Below is a list of steps:

1.You must be able and willing to work. Often, you will have work restrictions from your doctor when you are injured. Your employer may not allow you to work within those restrictions. If your work comp claim is denied, and your employer won’t accommodate your restrictions, you may apply for unemployment benefits. You must represent that you are able to work (within your restrictions). You cannot qualify for unemployment if your doctor takes you off of work completely.

2.To apply online, follow the link at NEworks.nebraska.gov to file an application. You will be required to upload a resume and job-search information. If you do not have access to the internet, you may visit a local Job Center at the following locations listed here: https://www.dol.nebraska.gov/Home/AboutUs. Somehow, you must find a way to get internet access because you will need to post your resume online. If you cannot get to a Job Center, check with your local library. Slow internet speed hindering unemployment claims is a problem in rural areas in Nebraska and across the nation.

3. Have the following information ready to complete an application:

Social Security Number
Complete home mailing address, including ZIP code
Telephone number
Email address
County you live in
Driver’s license number or State ID card number
If you select direct deposit, your bank routing number and account number
The company names for all your employers from the past 18 months as they appear on your paycheck stubs or W-2 forms
Complete mailing addresses of employers, including ZIP code and the city in which the business is physically located
Your start and end dates with each employer, including month, day, and year
Your reason for leaving each employer (lack of work, voluntary quit, discharge, leave of absence)
Employment authorization number and expiration date (if a non-citizen)
If you served in the military the past 18 months, DD 214 Member #4 Form

4.Communicate with the Nebraska Department of Labor. Often times someone from the Nebraska Department of Labor will call you to ask questions. These questions are often prompted by infornation submitted by your employer Make sure you answer take that call. We wrote a blog back in 2012 where a Nebraska Department of Labor employee said that many unemployed workers would get benefits if they would just answer their phone whwen the NDOL calls. After you file a new claim for unemployment benefits, you must file a weekly claim for benefits.

5. If your claim is denied, or you are told that you are disqualified from benefits for a certain period of time, you may file an appeal, but the appeal must be filed within 20 calendar days from the date the determination was mailed. You can file an appeal online at neworks.nebraska.gov, in writing by mail, by fax at 402-471-1734), or by email (NDOL.Appeals@nebraska.gov). If filing an appeal by mail, send to: Nebraska Appeal Tribunal, Nebraska Department of Labor, PO Box 98941, Lincoln, NE 68509. If your appeal is in writing, you must state the reason you wish to appeal, and include your signature, Social Security Number and employer’s name. Include the Determination ID from your determination letter.

If you are unsure how to file an appeal, contact a lawyer or someone at our firm. The Nebraska Department of Labor tries to schedule hearings within a few weeks of an appeal date. While that might seem like a lifetime when you aren’t receiving benefits, it isn’t a lot of time for a lawyer to get prepared for a hearing.

The good, bad and so-so of workplace law in this year’s session of the Unicameral

Posted on June 3, 2019 by Jon Rehm

State law impacts the workplace as much if not more than federal law. Nebraska workers gained some protections in the recently adjourned legislative session. Equally important, Nebraska workers didn’t lose any rights or protections in the recently adjourned session.

However, most legislation that would have benefited employees stalled. Nebraska’s low threshold for filibusters and traditional deference to committees makes it difficult to pass legislation without broad support. Most of the proposed legislation that would have affected the workplace lacked that broad support in the legislature.

Nebraska will likely retain its business-friendly litigation climate and middle of the pack ranking in comparative costs of our workers compensation systems (Overall costs of workers’ compensation are declining)

So here is the good and so-so of enacted legislation effecting workplace laws in Nebraska. I will also touch on what didn’t pass and talk about some interim studies that might affect legislation down the road.

The Good

LB 217 introduced by Lincoln Senator Patty Pansing Brooks, would make it illegal for an employer to retaliate against employees for discussing salaries. A few years ago, I would have thought the bill would be unnecessary because the National Lanor Relations Act (NLRA) broadly protected concerted activity in the workplace. But in 2018 the Supreme Court handed down the Epic decision which narrowed the definition of concerted activity under the NLRA. Workers in Nebraska will get back some of those pre-Epic protections.

LB 418 — This law, introduced by Omaha Senator Machaela Cavanaugh would prohibit debt collection of medical bills related to a work injury during the pendency of a workers compensation claim. Nebraska has drawn national media attention for how our laws favor aggressive debt collection. This law protects injured workers.

The law requires injured workers and or their attorneys put in a fair amount of work to comply with the new rule. Employees are required to file a petition to invoke protection of the law, so I would be interested to see if the number of petitions filed in the workers compensation court increases.

The collections bill was also paired with a bill that made it easier for non-resident aliens to receive agreed upon settlement proceeds.

On a side note, Cavanaugh has asked for an interim study by the Business and Labor Committee to study the effectiveness of Nebraska’s anti-discrimination laws

The Bad

The bad news of this legislative session for workers’ in Nebraska is that most legislation that could have helped workers did not get enacted into law. Here are some highlights (or lowlights):

LGBT rights — Legislation to include sexual orientation and gender identity within the Nebraska Fair Employment Practices Act fell well short of the necessary votes to overcome a filibuster.

Omaha’s municipal human rights ordinance prohibits discrimination on gender identity and sexual orientation grounds. Lincoln city council member Jane Raybould hinted at a recent town hall type meeting that Lincoln’s “fairness ordinance” that would include sexual orientation and gender identity within Lincoln’s human rights ordinance might be a ballot question in 2020.

The LGBT community may have some protections from discrimination on the job under a “sex plus” theory of discrimination which outlaws sex stereotyping.

Employee classification — LB 577 ntroduced by Omaha Senator Tony Vargas would have expanded the power of the Nebraska Department of Labor to shut down worksite suspected of misclasfiying employees as independent contractors. The state loses out on tax revenue through misclassification, while workers miss out on workplace protections like workers compensation and unemployment through being misclassified.

Senator Vargas has also proposed an interim study about workers classification that will bear close scrutiny as it will certainly discuss how to classify gig economy workers and discuss so-called portable benefit laws in Nebraska

Workers compensation — The legislature shelved legislation that would have clarified when temporary disability ends and permanent disability begins. I’ve blogged extensively about the gap or squeeze that can arise when an injured worker isn’t receiving any types of benefits but can’t work or aren’t allowed to return to work.

The legislature also shelved legislation that would have provided death benefits in workers compensation cases, to workers without dependents. increased funeral benefits and would have limited expenses charged for medical reports. Likewise the legislature also didn’t pass legislation that would have made it easier for firefighters and other first responders to collect workers’ compensation benefits.

Wage and hour and unemployment — Legislation that would have provided paid leave and prohibited retaliation under Nebraska’s Wage Payment and Collection Act didn’t pass. Legislation limiting mandatory overtime for overburdened corrections workers also did mot pass. Legislation that would have expressly included quitting to take care of a family member as a good cause for a quit. was rejected Lawmakers also rejected a propsal to increase the minimum wage for tipped employees and to index the state minimum wage for inflation.

The so-so

LB 428 exempted highway constriuction employees on seasonal layoff from job search requirements as a condition of receiving unemployment compensation. I pointed out that while business as a whole likes tough work search requirements as a condition of receiving unemployment, construction employers who have seasonal layoffs don’t like them as it gives employees incnetive to switch jobs.

I believe this was somewhat of a missed opportunity. Like other states with weak rural internet connections, Nebraska’s internet-based system to log job search information with the state is difficult to navigate for rural employees. The legislature needs to fix the mechanism that eligibile workers use to receive their unemployment benefits.

Equifax TALX dirty on unemployment benefits

Posted on May 16, 2019 by Jon Rehm

Equifax’s handling of unemployment claims is a scandal too.

According to USA Today, thanks to a data breach that effected 143 million Americans, credit reporting company Equifax is the most hated corporation in America.

But if you think the data breach was bad, just wait until you hear what Equifax does with unemployment claims.

In 2012 Equifax acquired TALX (pronounced “talks”) which helps employers process unemployment claims. In 2010, the New York Times did some good reporting about how TALX helped delay and even deny unemployment benefits to unemployed workers during the height of the Great Recession with questionable appeals and other tactics. At that time, TALX processed unemployment claims for employers comprising up to 30 percent of the workforce.

But even as memories of the Great Recession fade from media consciousness, TALX is still up its old tricks as a division of Equifax. The silver lining to the Equifax/TALX dark cloud for newly unemployed is if an employee appeals a denial of unemployment and Equifax/TALX is handling the claim, there is a good chance that Equifax/TALX will not appear for the unemployment appeal hearing.

The mere fact Equifax/TALX no shows a hearing doesn’t automatically mean an employee wins their unemployment appeal in Nebraska. According to 224 NAC 01 014, an employee appealing a determination still must present evidence as to why the determination was incorrect. This is true whether the employee was alleged to have quit or was fired. The quit/fired distinction is important as the employee has the burden to prove they quit for good cause while the employer has the burden of proof to show the they fired the employee for misconduct in connection with employment.

In my experience with uncontested unemployment appeals, the quit/fired distinction is less important than it is in a contested hearing. The problem for many employees though is that they don’t appeal their determination within the 20 day period allowed under Nebraska law. Additionally some employees could avoid an initial denial of benefits if they would better communicate with the Nebraska Department of Labor about their unemployment claim.

Sometimes newly unemployed workers do things to undermine their right to receive unemployment, but I refuse to scapegoat ordinary people when a corporation like Equifax is actively working against unemployed workers pursing unemployment insurance.

Four reasons to question the importance of the USDOL gig economy opinion letter

Posted on May 6, 2019 by Jon Rehm

United States Labor Secretary Alexander Acosta

The United States Department of Labor (DOL) published an opinion letter that would seem to exempt most so-called “gig economy” companies from federal wage and hour enforcement.

This opinion from the Trump DOL is a reversal of guidance from the Obama DOL stating gig economy workers should considered to be employees.

I think the DOL letter on the gig economy is news worthy, but I question its legal impact on the workplace as a whole. Here is why I would downplay the importance of the opinion letter.

Employees can still bring private causes of action for misclassification — While the letter means that the USDOL won’t initiate enforcement for wage and hour violations against companies, employees can still bring claims. Sure, these claims may get forced into arbitration, but employees through collective action have found ways to work around arbitration clauses.

Appellate courts seem to be giving less deference to agency interpretation – Traditionally courts have granted some deference to the opinions of the executive agencies charged with enforcing the relevant law. The Roberts court seems less inclined to do so. That’s not to say the Roberts court would disagree with classifying gig economy workers as independent contracts on the merits. This just means that federal appellate courts would be less likely to defer to the opinion of the Department of Labor on the issue.

The opinion letter doesn’t apply to state laws – While some states may be persuaded by USDOL opinions on classifying gig economy workers in their wage and hour laws, states are not going to be bound by that opinion — or necessarily even federal statutory law. States also usually have different standards as to is covered by state workers’ compensation laws, state wage and hour laws and unemployment insurance laws.

For example, the Oregon Supreme Court refused to classify a worker as an employee for the purpose of workers’ compensation even though the employe was classified as employees for the purpose of state wage and hour laws. Ohio also refused to use federal law to classify an employee as part of the workforce in order to make them eligible for workers’ compensation benefits.

Opinion letters have much less force than a law – Divided government makes it hard to pass controversial legislation, so interests looking to change the law are stuck trying make changes to the law by lobbying the executive agencies that enforce and interpret those laws. But these favorable opinions don’t have the force of law behind them.

Gig economy companies have also been stymied in state legislatures in their efforts to change employee classfication laws.They are now lobbying state agencies in charge of enforcing and administering state employment laws.

In short, gig economy companies are basically tinkering around employee protection laws at this point. Employee advocates need to be vigilant about the threats to our practices by the gig economy and its high level and bipartisan advocates.

Bill would expand job search exemption for laid off workers receiving unemployment

Posted on February 11, 2019 by Jon Rehm

Some employers don’t want their laid off employees looking for work

Some unemployed workers could be exempted from job search requirements under the Nebraska Employment Security Act if a bill being considered by the Nebraska legislature passes.

LB 428 introduced by State Senator Curt Friesen, would give the Commissioner of Labor the authority to exempt some workers on highway and street construction jobs from job searches as a condition of receiving unemployment benefits. The bill would expand the exemption from job search requirements for workers on layoffs who have an expectation of returning to work.

Nebraska requires laid off workers to make five job search contacts per week and one contact a day as a condition for receiving unemployment benefits. Businesses support the reduction in unemployment taxes brought about by policies such as tough job search requirements. But those job search requirements have had unintended consequences.

In another state with robust job search requirements for unemployed workers, Wisconsin, many employers in the construction industry complained about the job search requirements. They argued that the job search requirements made it harder to retain employees who traditionally collect unemployment benefits while being laid off over the winter.

Requiring workers on a seasonal layoff to look for work gives other employers the chance to “recruit” employees. Construction employers in Nebraska frequently complain of a worker shortage, so employee turnover encouraged by job search requirements would make that problem worse.

If you spend any time reading HR Twitter you know that “talent” recruitment and retention is frequently discussed. Setting aside the obvious solution of increasing wages, HR folks like to talk about creative ways to retain employees. Hence perks like ping pong tables in break rooms and casual dress codes.

Traditionally employers were usually the only way to obtain good health insurance, so workers stay in their jobs to keep their health insurance even if the working conditions are poor.

There are also more coercive talent “retention” tactics such as non-compete agreements that are being increasingly absued by employers to the point that even some Republicans are introducing bills to address the issue on a federal level.

In addition to reducing taxes, tough job search requirements are supposed to increase the size of the labor market by discouraging receiving unemployment benefits. But policies that may benefit business interests as a whole, like job search requirements to receive unemployment benefits, may not benefit particular employers who may struggle to hold onto valuable employees.

Indefinite suspensions are employer ghosting

Posted on December 6, 2018 by Jon Rehm

True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Unemployment

Blog roundup: Drug testing for unemployment benefits is law by Facebook meme

Can I use the decision in my unemployment appeal in my wrongful termination case?

How to Apply for Unemployment while Workers’ Comp Is Denied

The good, bad and so-so of workplace law in this year’s session of the Unicameral

Equifax TALX dirty on unemployment benefits

Four reasons to question the importance of the USDOL gig economy opinion letter

Bill would expand job search exemption for laid off workers receiving unemployment

Indefinite suspensions are employer ghosting

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