By William T. Simmons
Legal Counsel to Chairman Tom Pauken
The following questions were complied from past Texas Business Conferences around the state:
Unemployment Claims and Appeals
Q: What is a base period?
A: The base period is a year-long period of time that determines both the amount of UI benefits a claimant can potentially draw and which employers will be in line for potential chargebacks if benefits are paid. Lagging behind the date the initial claim is filed, the base period is defined as the first four of the last five completed calendar quarters immediately preceding the initial claim. An easier way to think about it is to take the date the initial claim is filed, disregard that quarter (the quarter in progress), disregard the quarter immediately preceding that one (the lag quarter), and then go back in time four calendar quarters. That year-long period will be the base period, and any employer that paid the claimant wages during any of those quarters will be potentially liable for chargebacks. The liability will be proportional to the amount of wages the employer paid in relation to other base period employers, i.e., if you paid half the claimant’s wages during the base period and another company paid the other half, you will each have half of the chargeback liability.
Q: A long-term, but part-time, employee was permanently laid off with two weeks’ notice and received severance pay as per our policy. If he receives unemployment benefits, will the company be charged back for all of his benefits, or else receive a “break” for the amount of severance paid?
A: Severance pay paid under a policy or agreement has no effect on unemployment benefits, so it will not reduce the employer’s chargeback amount. The company will be charged back with its share of whatever benefits are paid to the laid-off employee. The percentage of chargeback will be the same as its share of the wages paid to the employee during the base period of the claim.
Q: We terminated an employee for cause. We do not believe she deserves UI benefits. What do we need in order to prove our case?
A: At a minimum, your company will need to prove that the claimant was fired for a specific incident of misconduct connected with the work (a final incident) and that she either knew or should have known she would be fired for such a reason (usually shown with a final warning or a clear written policy warning of discharge for a particular type of problem).
Q: Right after her one-year anniversary with my company, one of my employees told me that she is unhappy here and has already started looking for another job. Can I take that as her resignation, and do I have to pay her for the unused vacation?
A: TWC would not consider the employee’s expression of unhappiness as notice of resignation. Many employees think such things from time to time, and a few actually tell you, but it is only talk. Unless they actually give you a definite date as the effective date of their resignation, they have not resigned. An employer has to pay for unused vacation or sick leave only if stipulated in a written policy or agreement.
Q: The claimant was fired for missing a required meeting. His excuse was that his supervisor told him he did not need to attend, but his supervisor denied that. How can we best handle the appeal hearing?
A: Be sure to have the supervisor testify during the hearing, as well as any other witnesses who could confirm that attendance was mandatory at the meeting for the claimant. In addition, submit a copy of any written notices or e-mails that put employees on notice about the meeting – send copies to both the hearing officer and the claimant prior to the hearing.
Q: An employee gave two weeks notice of quitting. We accepted the resignation immediately. He now claims we owe him for the two weeks we did not let him work. Do we owe him such pay?
A: No, unless you have a written policy or agreement promising to pay resigning employees for the unworked portion of a notice period. Under TWC policy, if an employee gives notice of intent to resign by a definite date that is two weeks or less in the future, the employer can accept that notice anytime within the two-week period without changing the nature of the work separation from a quit to a discharge. Just be sure to let the employee know that the company is “accepting the notice early” and will not need him to work out the notice period, instead of using terminology such as “we’re letting you go early” or “we’ll go ahead and process your termination today”, which sounds like one would say in the event of a layoff.
Texas Payday Law
Q: My employee just quit last week and is refusing to return her uniforms. Can I hold her final paycheck until she brings the uniforms back?
A: No. Her duty to return the uniforms is separate from your duty to give her the final pay she earned. If you have a wage deduction authorization agreement, signed by her, allow ing you to deduct the replacement cost of the uniforms, then you could take that money out of her final paycheck. Be sure not to let such a deduction take the employee’s pay below minimum wage ($7.25/hour).
Q: Do I need written authorization to deduct child support from an employee’s pay?
A: No. Court-ordered garnishments and required deductions such as those for payroll taxes, other tax debts, and guaranteed student loan wage attachments do not need to be authorized in writing. Generally speaking, any other type of wage deduction must be authorized in writing. Be sure the written authorization is as specific as possible regarding the purpose and amount of the deduction, and that it states that the deduction will be made from the employee’s pay.
Q: Our former payroll employee accidentally overpaid two employees for several payroll periods. How can we legally get that money back?
A: After explaining the situation to the employees, ask them to sign a written wage deduction authorization agreement allowing the company to deduct the wage overpayments from their future paychecks in certain specific amounts. If they refuse, the company may either delay any anticipated pay raises or give the employees a temporary reduction in the pay rate in order to recoup the amounts in question. Try to keep the pay reduction as small as possible (as much under 20% as possible) to avoid giving them good cause to quit and file unemployment claims, and be sure to give the notice of pay reduction in writing.
Source: Texas Business Today - Fall 2009 Issue