So why can HR now sic the FBI on employees who forge off-work notes?
The CARES Act, interstate commerce and taxing power
The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.
Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.
Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.
But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.
When people are hurt at work, they are often compelled to file for unemployment benefits. This may be because they are fired for not being able to do their job or end up quitting because they are no longer physically able to do their job.
If you quit, you will have to show that you did so with good cause. If you physically can no longer do your job because of your injury, that qualifies.
If you have been terminated, your employer may attempt to withhold unemployment benefits. To do this, your employer will have to demonstrate that you were terminated because of a misconduct on your part. Misconduct is intentional behavior by you. For example, if you are not performing at work even though you are medically capable of doing your job and have been told to improve, if you call in sick numerous times for unnecessary reasons, or if you don’t show up for work, these behaviors would qualify as misconduct.
Your employer would have to show documentation of these behaviors at an unemployment hearing. If documentation is not available and it comes down to your word versus your employer’s word, the likelihood is that you will win your case and will be able to collect unemployment benefits.
If you have questions about employment issues or unemployment benefits, our attorneys are licensed to practice in Nebraska and Iowa. I can also refer you to an expert attorney in another state if needed.
People who quit their jobs may not be eligible for unemployment benefits.
A worker in Nebraska can be penalized on their unemployment benefits for two reasons:
they quit their job without good cause, or
they committed misconduct in connection with their employment.
Why it is better to be fired than to quit
If you are fired, your employer must be able to prove that you committed misconduct in connection with your employment. In layman’s terms, they have to show that you made a decision or decisions to intentionally disregard reasonable standards related to your job. However, my experience is that if you appeal an adjudicator’s initial decision, many employers don’t understand they have the burden to prove that it is more likely than not that you did something wrong. Also, oftentimes managers and HR professionals do not understand the nuts and bolts of how to prove their case.
But, if you quit, then you have to prove that you quit for good cause. Nebraska law defines good cause.
This puts the burden on you to prove the case. This means that not only do you have to Continue reading →