TWC Claims: How Do You Respond to These? 24/7 Caregivers: How Do You Pay Overtime?

1. TWC Claims:How Do You Respond to These?24/7 Caregivers:How Do You Pay Overtime? Robin Kennedy, SPHR My HR Department

2. TWC Claims:How Do You Respond to These?

3. Types Of Work Separations • Voluntary Work Separations • Involuntary Work Separations • Effect of Voluntary or Involuntary Work Separations • Quit or Discharge - Close Cases • Ambiguous Notice • Resignation Without Notice

4. Voluntary Work Separation • Resignation with advance notice - the employee gives the employer oral or written notice of leaving in advance. • Retirement - a special form of resignation with advance notice that involves satisfying some kind of condition for leaving the company with one form or another of continued benefits. • Resignation without advance notice, but with notice given at the time of the work separation - the employee does let the employer know somehow that he or she will not be returning to work. • Resignation without notice at all - this can include walking off the job, job abandonment, and failure to return to work after a period of leave.

5. Involuntary Work Separation • Layoff, reduction in force, or downsizing - work separation due to economic inability to keep the employee on the payroll. • Temporary job comes to an end - work separation due to work no longer being available because the job is simply finished. • Discharge or termination for misconduct or "cause" - work separation that the employer views as somehow being the claimant's fault. • Resignation in lieu of discharge - same as discharge, but the employer gives the employee the option of resigning as a face-saving option. • Forced retirement - may be akin to an economic layoff or a discharge for cause, but in this situation, the employee is allowed to qualify under a retirement plan. • "Mutual agreement" - in most cases, this form of work separation is viewed as involuntary, since it is usually initiated or encouraged by the employer.

6. Effect of Voluntary versus Involuntary Voluntary work separation: • Under the Texas Payday Law, an employee who leaves voluntarily must receive the final pay no later than the next regularly scheduled payday following the work separation. • In an unemployment claim, the claimant who voluntarily left employment faces the burden of proving good cause connected with the work for leaving the job. • In many companies, employees who leave voluntarily receive different benefits than those who are involuntarily separated, depending upon the terms of the company's benefit plan. Involuntary work separation: • Under the Texas Payday Law, an employee who leaves involuntarily must be given the final pay no later than six calendar days following the last day of work. • In an unemployment claim, the employer that initiated the work separation has the burden of proving misconduct connected with the work as the reason for discharge.

7. Quit or Discharge • This determines who has the burden of proof: It falls on the party that initiated the work separation. • If the claimant was fired, the employer has the burden of proving • That the discharge resulted from a specific act of misconduct connected with the work that happened close in time to the discharge and • That the claimant either knew or should have known she could be fired for such a reason.

8. Problem:Ambiguous Notice Solution: Always Give Response In Writing

9. Problem:Resignation Without Notice Solution: Always Get Resignation In Writing

10. TWC Claims Process • Initial Claim • Initial Determination • Appeal Tribunal • Commission Appeal • Motion for Rehearing • Court Appeal

11. Initial Claim • Employer has 14 days from the date of the claim to respond • Respond to TWC by • Mail • Fax • Hand-delivery • Telephone • Internet site

12. Initial Claim • Be brief • Be factual • Be specific • Provide documentation if appropriate, i.e., copy of claimant’s letter of resignation

13. Initial Determination • If initial determination indicates that claimant will draw benefits, an employer can appeal with 14 calendar days of the date the ruling was mailed • If employer filed late response, employer should allege some problem outside its power to control as the reason for not protesting claim in timely manner

14. Appeal Tribunal • Telephone hearing is norm • Only firsthand testimony allowed • Documentary evidence may be entered, but copies must have been sent ahead of time to both Hearing Officer and Claimant • Both parties may offer • Direct testimony • Conduct cross-examination • Make concluding statements • Written decision within 1 week either affirming, reversing, or modifying the determination

15. Commission Appeal • Must be done with 14 calendar days of the date the hearing officer’s decision is mailed • This appeal is heard by the Appeal Tribunal (3 member Commission)

16. Motion for Rehearing • Must be filed with 14 calendar days of the date the original Commission decision is mailed • Must offer new evidence • Give a compelling reason why it could not have been offered earlier, and • Show specifically how it could change the outcome of the case

17. Court Appeal • Losing party may file a court appeal within 14 calendar days • No right to jury trial • Parties may put on their entire cases again for a judge • Judge makes no finding of fact, but decides as a matter of law where substantial evidence exists to uphold the TWC ruling. • Court’s decision may be appealed as in any other civil case

18. Evidence Needed for a UI Claim and/or Appeal • Firsthand testimony from witnesses with direct, personal knowledge of the events leading to the claimant's work separation, i.e., "the ones who saw it happen". • Documentation of policies, warnings, complaints, attendance, timecards, pay-related records, or any other subjects relating to the claimant's work separation. • In a discharge case, evidence relating to a specific act of misconduct that happened close in time to the discharge, i.e., the event that precipitated the discharge (the so-called "final incident"), as well as evidence showing that the claimant either knew or should have known that discharge could occur; in a resignation case, evidence relating to whatever motivated the claimant to resign.

19. Mistakes That Are Easy To Avoid

20. Prior to Claim • Terminating an employee in the heat of the moment • Failing to discuss the problem with the employee prior to termination • Terminating an employee without reasonable warning • Ignoring company procedures or prior warnings • Taking no action when employees complain

21. Terminating An Employee In The Heat Of The Moment • Even in Texas, with employment-at-will doctrine, employers may pay a price • Discharge must be proven to be a specific act of misconduct connected with the work AND • Claimant either knew or should have know he could lose his job for this reason

22. Failing to discuss the problem with the employee prior to termination • TWC claim examiners and hearing officers generally look with favor upon employers who confront the soon-to-be-former employee with the problem and let the employee try to explain • avoids the related problem of giving a false reason for termination (almost always fatal to a case) • there is always the possibility that the employee will point out something that will make the employer realize that discharge might not be appropriate • gives the appearance of fairness, which is important from a perception standpoint

23. TWC people processing the UI claims are themselves employees, not employers, and they generally have a well-developed idea of what they consider fair and right. Good, bad, or indifferent, that is the reality, so it should be taken into account.

24. Terminating An Employee Without Reasonable Warning • Test is whether a "reasonable employee" could have expected to be fired for the reason in question, the employer has to show that either the employee did something that was so bad, he had to have known he would be fired without prior warning, or • That the employee had somehow been placed on prior notice that he could lose his job for such a reason. "Prior notice" would come from a policy expressly warning of discharge or from a (preferably written) warning to the effect that a certain action or lack of action would result in dismissal.

25. Ignoring Company Procedures Or Prior Warnings • Employer must show that the claimant either know or should have known that her job was on the line for the reason in question. That will be impossible to show, for example, if the employer fires the employee without giving the employee the benefit of progressing through whatever progressive disciplinary process the company usually follows. • Problem also shows up if an employee gets a written warning stating that it is the "first written warning", and the list of further steps on the form shows a "second written warning" or "final warning", but the employee is fired for a subsequent offense without getting the (apparently promised) intermediate or final warning • The point is that the employer should try its best to do what it says it will do. If employees have been led to believe that certain steps will occur prior to termination, follow those steps, or else be prepared to lose the UI claim.

26. Taking No Action When Employees Complain • Nothing stirs the sympathy of TWC examiners and officers like the story of a claimant with a grievance, whose employer either took no effective action or retaliated somehow against the claimant • Complaints usually do not come out of thin air. Listen, investigate, act, and document your actions. • Employers responsive to employee concerns face UI claims with more confidence, AND generally have fewer worries about employee turnover and union activity.

27. Post-claim • Missing a claim response or appeal deadline • Assuming that if TWC does not recontact the company, the claim has been dismissed or denied • Changing the explanation for the work separation • Failing to prove the case against the claimant • Failing to present firsthand testimony from eyewitnesses

28. Missing A Claim Response Or Appeal Deadline • A late claim response means that the employer waives any rights it has in the claim, including the right to protest chargebacks to its tax account • Filing a late appeal means that the TWC must dismiss the appeal without considering the underlying merits of the case. • There is no alternative to filing claim responses and appeals on time.

29. Assuming that if TWC does not recontact the company, the claim has been dismissed or denied

30. Changing the explanation for the work separation • Many TWC people, quite frankly, take a changed work separation explanation as a sign that the employer is not credible and is just looking for the right words to get the claimant disqualified. • Study the facts behind the work separation carefully and get it right the first time. • If the deadline is near and the employer needs more time, it can file a quick timely response notifying the claim examiner that the employer wishes to be an interested party and will file more information as soon as possible.

31. Failing to prove the case against the claimant • In a discharge case, the burden of proving misconduct is on the employer • Employer must show that the separation resulted from a specific act of misconduct connected with the work that happened close in time to the discharge and that the claimant either knew or should have known she could lose her job for such a reason

32. Failing to present firsthand testimony from eyewitnesses • The only exception is in the area of drug testing, where the results of a confirmation test indicating the presence of prohibited substances in the system of the claimant is accepted over the sworn firsthand denial of drug use by the claimant. • If the claimant denies the misconduct alleged, and the employer is unable to present firsthand testimony to prove its allegations, the employer will lose.

33. Conclusions • Prepare for and document termination • Report termination data to TWC in clear, accurate, and timely manner • Provide documentation and first-hand testimony if employer account is in dispute

34. Q & A

35. 24/7 Caregivers:How Do You Pay Overtime?

36. Fair Labor Standards Act Overtime Provisions http://www.dol.gov/elaws/overtime.htm

37. FLSA Overview • Covered, nonexempt workers are entitled to a minimum wage of not less than $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009. • Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.

38. FLSA Exemptions • Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in Department of Labor regulations); • Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery; • Farmworkers employed by anyone who used no more than 500 “man-days” of farm labor in any calendar quarter of the preceding calendar year; • Casual babysitters and persons employed as companions to the elderly or infirm.

39. Computing Overtime Pay Overtime must be paid at a rate of at least one and one-half times the employee’s regular rate of pay for each hour worked in a workweek in excess of the maximum allowable in a given type of employment. Generally, the regular rate includes all payments made by the employer to or on behalf of the employee (except for certain statutory exclusions). The following examples are based on a maximum 40-hour workweek applicable to most covered nonexempt employees.

40. FLSA & Home Health Agencieshttp://www.dol.gov/esa/whd/regs/compliance/whdfs25.pdf

41. Companionship Services = • Services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves. • Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services. • General household work is also included, as long as it does not exceed 20 percent of the total weekly hours worked by the companion.

42. Companionship Services Exemption • Employees providing "companionship services" as defined by the FLSA need not be paid the minimum wage or overtime. • Certified nurse aides and home health care aides may be considered exempt from the FLSA's wage requirements depending upon the nature of their work.

43. Domestic Service • Persons employed in domestic service in households are covered by the FLSA. Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term "domestic service employment." The overtime standard does apply.

44. Willful Violations • Willful violations may be prosecuted criminally and the violator fined up to $10,000. • A second conviction may result in imprisonment. • Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to a civil money penalty of up to $1,100 for each such violation.

45. Q & A

46. Robin Kennedy, SPHR www.myhr.biz robin.kennedy@myhr.biz