(Published in New Hampshire Business Review, August 2010)
Q: The Human Resources Director of A1 Corporation, Ms. Jones, receives a Notice of Claim for Unemployment Benefits from a former employee, Mr. Smith. Ms. Jones is not sure if Mr. Smith is eligible for unemployment benefits and has never dealt with the unemployment benefits system before. What does she need to do to decide if she needs to respond, and what should she expect if she does?
A: In today’s economy more and more employees are becoming former employees, and are filing for unemployment benefits. Employers who have never had to navigate the unemployment system are now receiving notices of claims for unemployment benefits on a regular basis, and are being forced to respond and participate in a system that they know very little about. Even for those well versed in the unemployment system, it is a difficult system with a variety of applicable rules and regulations. Employers should never hesitate to contact the NHDES or counsel if they have concerns about how to handle a claim for unemployment benefits.
The NHDES Unemployment Bureau is tasked with paying out benefits to eligible claimants who are unemployed, or underemployed, through no fault of their own. When an employer receives a notice of claim, it has the opportunity to object to the claimant’s characterization of the separation where appropriate, and will later have an opportunity to appeal a decision to grant benefits to the former employee. Therefore, the employer must understand the circumstances of that former employee’s employment and also determine if that employee is eligible for benefits. It should be determined how the separation came about (i.e., was the employee terminated or did he or she quit voluntarily?), the length of employment, and the employee’s wage and hour records. This information will be critical to determining how the employer will respond to the notice of claim.
When determining the eligibility of the employee for unemployment benefits, the employer must review the employee’s employment over the first four calendar quarters out of the last five completed calendar quarters or, in the alternative, the last four completed calendar quarters. An employee may be eligible if he or she worked for the employer for more than four consecutive weeks or more than nine of the preceding thirteen weeks and must have earned more than $1,400 in each of two calendar quarters (looking back to the preceding five calendar quarters).
If the employee meets the above eligibility requirements, the inquiry does not end there. New Hampshire law sets out, in NH RSA 282-A:31, the following eligibility requirements: the employee must file a claim, register and report to NHDES, be ready, willing, and able to accept and perform suitable work, be available for and seeking work for which the employee is qualified, disclose child support obligations, participate in reemployment services if so directed, disclose any amounts due and owing as a result of over issuance of food stamps, and serve a one-week waiting period. Additionally, an otherwise eligible employee may become disqualified for leaving work voluntarily without good cause, termination for misconduct, failure to seek suitable work, or a disciplinary layoff.
Once the employer has determined whether or not the former employee is in fact eligible, it can then figure out how to proceed. An employer has ten days to respond to a notice of claim, and may only respond if the employer disagrees with the employee’s statements contained within the claim for unemployment benefits. This may include the reason(s) for separation or wage and hour records of the employee. NHDES will make a determination of claim based upon the claimant’s submission and the employer’s response, if any.
Once a determination is made, the employer may appeal the decision should it disagree that the claimant is eligible for unemployment benefits. An appeal must be in writing, set forth the dispute of fact and/or law, and must be filed within 14 days of the determination. Failure to object within this timeframe makes the determination final and conclusive. This appeal is the first opportunity for the employer to set forth in detail, based upon both facts and law, why it believes the employee is not eligible for unemployment benefits.
Upon filing an appeal of the determination, NHDES will schedule an appeals tribunal hearing. To prepare for this hearing, the employer should speak with those who may have relevant information regarding the former employee’s eligibility, determine who will testify at the hearing, gather all documents to be submitted as exhibits, outline the facts/testimony that should be addressed during the hearing, and determine what questions should be asked of the former employee. Any individuals with first hand knowledge of relevant events and any supporting documents should be prepared to attend the hearing.
At the hearing, the employer will have the opportunity to present its position with respect to the unemployment benefits, i.e., that the employee is not eligible based upon time worked and/or amount earned or that he or she is disqualified for some reason. This hearing is recorded, under oath, with testimony, examination, and exhibits presented to the hearings officer. The hearings officer will review the testimony and submissions as if no prior decision has been made, and will provide a decision based solely upon what is provided at the hearing.
The unemployment process is difficult, and employers should never hesitate to seek assistance with the process, whether it be from NHDES or counsel. There are short deadlines to meet, and a lot of information to gather in the interim. Employers should become aware of the rules and regulations governing the unemployment system. This article provides only a brief overview of what can be expected in the process, and employers should note that a variety of situations may arise depending on the circumstances surrounding its former employee’s employment.
Katie Kiernan is an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Katie can be reached at 603-628-1490 or at [email protected]. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.