- Discharge As A Result Of Cancellation Of Insurance.
Fact Pattern: Commercial Truck Driver discharged
when employer is notified by insurance carrier that claimant is no longer
insurable.
Law: Section 207.044
Precedents: see MC 490.20
what are the DOT regulations
was there a change in the insurance carrier
was insurance required to perform his job
was other work available and made known to the claimant
was the claimant given the opportunity to get his own insurance
did the employer check into paying premium rates
what was the claimant's most recent ticket and what was the disposition
when did the violation occur
was the claimant required to inform the employer of any violations (on or
off the job)
did claimant notify employer of event
when did employer find out about event
when did employer find out about the non-insurability
was the denial of insurability due to an on the job violation
what are the facts and circumstances of the violation
who was at fault in any violation
was a citation issued
were there 3 occurrences of no-fault accident
does the employer have an accident review committee
was claimant advised to maintain insurability
was the claimant told off duty violations could jeopardize his job
was claimant aware that failure to contest tickets could jeopardize his
job
what are the particulars of the insurance policy
were there any prior warnings by the employer to the claimant
did the employer check the claimant's driving record before hiring him
did the claimant reveal his driving record at the time of hire
- Discharge For Manner Of Performing Work/Carelessness
Or Negligence/Mere Inability.
Fact Pattern: Claimant, a convenience store cashier,
was discharged for violation of employer policy re: acceptable register
shortages/overages during a 6 month period.
Law: Section 207.044
Precedents: MC 300.05; MC 300.25; MC 300.40
what was employer's policy
was claimant aware of policy
progressive disciplinary policy (was it followed)
did employer have cash control procedures
was claimant given training by employer
did claimant follow employer's cash control procedures
prior incidents with claimant/prior warnings
was there a demonstrated prior ability to meet standards
anyone else have access to register
what steps were taken to determination it was claimant's fault
does the register compute change or sales tax
was the register checked to see if it was malfunctioning
how often are audits made
was claimant allowed to observe audit
was it a shortage or an overage
how much short/over
was the shortage/overage ever discovered
what was opening amount
was claimant given opportunity to explain discrepancy
frequency of customer transactions with claimant (customer volume)
what were the other responsibilities of claimant at the time
had those duties recently been increased or changed
were other workers present to help claimant
did employer accept credit cards, checks, food stamps, different currencies
etc.
date of last incident
details of last incident
when and how did employer discover last violation
admissions or witnesses
was there improvement after claimant left
- Discharge For Altercation With Co-Worker.
Fact Pattern: Claimant discharged for fighting
with co-worker.
Law: Section 207.044
Precedents: see MC
390.20
Was claimant aware fighting could lead to discharge?
who started the fight
was it with a coworker or supervisor
when did the fight occur
where did the fight occur
were there any witnesses (if so, who)
did claimant attempt to avoid the conflict
what was the nature of the conflict
was any weapon used
what action did the employer take toward the other participant
were criminal charges filed
was anyone injured or any property damage
prior incidents and warnings
events leading to the conflict
did the claimant escalate the conflict
did claimant try to resolve conflict in any other way
physical description of the participants in the conflict
was the claimant's action in self defense
- Discharge For Violation Of Law/Discharge For Notoriety
Of Conduct.
Fact Pattern: Claimant discharged when employer
learned claimant had pleaded guilty to criminal charges for off-duty conduct.
Law: Section 207.044
Precedents: MC 490.00 et.seq.;
what was company policy regarding criminal convictions
what was the charge
when did incident occur
did the claimant plead guilty and when
what was the sentence
was the sentence deferred adjudication
did claimant inform employer
was claimant required to divulge the information
what was claimant's job
could charges relate to claimant's job duties
was discharge required by law (licensing requirements)
was crime connected to claimant's job
was claimant arrested at work
was claimant absent
how did conviction affect claimant's job
why was claimant discharged
adverse publicity to employer (small town/large city)
prior occurrences
was employer aware of charge at time of hire
Did the claimant do what he is accused of doing?
What were the events that lead to the charges?
- Discharge For Failure Of Drug Test.
Fact Pattern: Employer summarily discharged claimant
upon learning claimant failed a drug test.
Law: Section 207.044
Precedents: MC 485.46
What was claimant's job?
What was the employer's drug policy?
Was the policy in writing?
Was claimant aware of the policy?
Is there documented evidence of the claimant's knowledge of
the policy?
Was the test random?
Did the claimant consent to the test?
Is there documented evidence of the claimant's consent?
Was it the claimant's sample?
Was the chain of custody maintained?
Was the laboratory certified?
Was the initial positive conformed with a GC/MS test?
Was the claimant confronted with the test results?
Did the claimant admit drug use to the employer?
Has the claimant used illegal drugs since coming to work for the employer?
If the claimant was taking controlled substance, did he have a prescription?
- Discharge For Inability To Meet Standards.
Fact Pattern: Claimant was discharged at the end
of her 90-day probationary period because her work did not satisfy the employer's
performance expectations.
Law: Section 207.044
Precedents: MC 300.05; MC 300.25
was claimant informed she was on probation
what were the terms of the probation
is progressive discipline required
had the claimant ever been warned that she was not meeting expectations
did performance improve
was she advised of the standards or expectations when hired
how is performance measured
was this disciplinary probation or initial hiring probation
how did she not meet standards
what were the standards or expectations
did the claimant's job change
were other employees with like duties meeting standards and expectations
was there a last incident or just the end of the probationary period
did her work ever meet the employer's expectations
did claimant perform to best of her ability (if so, was work acceptable:
if not, why not)
did the claimant misrepresent her capabilities
did she refuse to do the job
were there other reasons that prevented her from doing her job (attendance,
training)
how difficult was the task
what reason did the claimant give the employer for not meeting standards?
- Discharge For Falsification Of Record.
Fact Pattern: Claimant discharged because, several
weeks earlier, he had incorrectly listed his out-of-pocket expenses on a
company travel voucher.
Law: Section 207.044
Precedents: MC 140.05; MC 140.15; MC 140.20; MC
140.25; MC 140.30
what is company policy regarding documents/vouchers
what is employer's disciplinary policy and was it followed
was claimant aware of employer policies
when did employer learn of incorrect voucher
why did employer wait several weeks before discharge
what was incorrect
when were the incorrect expenses listed
how was it discovered
was voucher approved originally (if so, why and by whom)
why did the claimant list expenses wrong (intent)
how incorrect was the reporting (and who benefited and to what extent)
had claimant filled out vouchers before
had claimant received instruction on filling out vouchers
prior occurrences (and action taken)
any admissions
are the vouchers present
did employer ask for explanation by claimant
was the voucher paid by employer (if so, when)
did claimant reimburse employer for any losses
- Discharge For Absence.
Fact Pattern: Claimant discharged for excessive
absenteeism.
Law: Section 207.044
Precedents: MC 15.05; MC 15.10
what was the reason for the last absence
did the claimant know job was in jeopardy due to attendance?
did the claimant know the last absence would put job at risk?
could the claimant have come to work?
would the claimant have come to work if knew would be fired?
did the claimant notify the employer?
was the notification according to accepted practice?
If claimant did not notify, why not?
why did claimant not personally notify employer (if applicable)
was it acceptable for others to notify employer (if applicable)
prior absences and/or warnings (if not, why was last incident excessive)
employer policy on absenteeism and notification
was claimant required to notify a specific person
was progressive disciplinary policy, if any, followed
was claimant aware of policy (if applicable)
- Discharge For Refusal To Transfer To Another Location.
Fact Pattern: Claimant discharged when she refused
to transfer to one of employer's other branch offices.
Law: Section 207.044
Precedents: MC 255.302
where was she currently working
where was new location
where did claimant live
what would be the change in commuting distance
employer's policy on relocation
was claimant aware of policy
when hired, was claimant told she might be relocated
was claimant advised of risk of discharge for refusal to transfer
had claimant ever relocated for employer in past
how long had she been at present location
was it for the same type work, hours pay, benefits, etc.
any extra compensation for relocating
would employer cover relocation costs
reason for transfer
when was transfer to take effect
were there other options to transfer
why did claimant refuse
- Relations With Co-Workers/Ability To Meet Standards/
Working Condition Quit/Quit In Anticipation Of Discharge.
Fact Pattern: Claimant quits due to conflict with
co-workers and verbal harassment by co-workers.
Law: Section 207.045
Precedents: See VL 135.35 ; VL 210.00; VL 515.05;
possibly MC 390.20; possibly MC 300.05; possibly MC 300.25
Was there any specific event that provoked the quit?
what was the final incident that caused claimant to quit
Did claimant tell the employer about this event?
Did the employer offer to do something about it?
How long had the harassment/conflict been going on?
how long did claimant work under these conditions (if long, why did claimant
stay)
had claimant complained to employer previously (if so, when)
did employer take corrective action
was there any improvement
who were the co-workers (was it a supervisor)
did claimant ask for a transfer
could claimant work without interacting with the co-workers
any prior discipline for conflict with or harassment of co-workers?
- Working Conditions Quit/Medically Verified Quit.
Fact Pattern: Claimant quit because her work was
adversely affecting her health.
Law: Section 207.045; Section 207.045(d); Section
204.022(a)(5)
Precedents: VL 235.05; VL 235.25; VL 505.15
what were the conditions affecting her health
how was her health affected
how long was the claimant's health affected
how long had she worked under those conditions before quitting
was it a preexisting condition
did the claimant consult a physician
was physician's treatment plan followed
was the claimant placed under any restrictions by her physician
advised by a doctor to quit
did claimant complain to the employer
did claimant ask for transfer or light duty
was a leave of absence available
was alternative work available
any doctor's statement/medical verification (at time of separation or at
time of hearing)
was claimant given a choice of quitting or being discharged
were there possible alternate causes of the claimant's deteriorating health
has claimant been released by doctor? What date?
Any restrictions on release?
Did claimant reapply when released?
If not, why not?
- Quit Due To Reduction In Pay.
Fact Pattern: Claimant quit when notified her
pay would be reduced effective her next pay period.
Law: Section 207.45
Precedents: VL 500.35
how much was claimant earning before reduction
how much was claimant to be earning after reduction (greater than 20 % reduction)
was there also going to be a reduction or addition of benefits
was claimant guaranteed a specific wage
when was next pay period
how much longer could claimant have worked before reduction
any change in workload, hours, responsibilities
why was pay being reduced
was reduction effective for all employees
did claimant request reduction
was other work available
if reduced as discipline, what was disciplinary policy
was reduction permanent/temporary (how long)
had claimant been advised previously that pay might be reduced in future
had claimant's pay been reduced in the past
did claimant complain to employer
did claimant agree to the reduction
Did the claimant work after the reduction and for how long?
- Wage Reduction Quit/Proximity Of Incident To Resignation.
Fact Pattern: As an economy measure, employer
reduces claimant's weekly salary; 3 weeks later claimant quits, alleging
wage reduction as motive.
Law: Section 207.045
Precedents: VL 500.35; VL 385.00
what was the claimant's prior wage
what was the reduced wage
why work for 3 weeks
were there any past reductions
what was claimant told about the reduction
what did claimant say when told of reduction
when was claimant told of reduction
when was reduction effective
any other workers' pay reduced
temporary or permanent reduction (if temp., how long)
were hours or duties also reduced
did claimant request reduction
change in hiring agreement
was other work available
- Temporary Placement Agency Separations.
Fact Pattern: Claimant, an employee of a temporary
help agency, was told by client company that his services were no longer
needed.
Law: Section 207.044; Section 207.45; amended
but not recodified Section 5(a)
Precedents: MC 135.30; VL 135.05; VL 495.00
reason services were no longer needed
who told claimant that services were no longer needed
dates of assignment
how much notice (more than 2 weeks)
with whom did the claimant get the job
when was claimant hired by temp. agency
who did he think employer was (was claimant being payrolled only)
was there a policy to contact employer for reassignment
how was claimant made aware of the policy
did employer advise claimant that failure to report could jeopardize right
to benefits
how often did claimant have to report
did he report for reassignment
when did claimant report for reassignment?
To whom did the claimant speak when reported?
Was the claimant offered further work when he reported?
If so, what was the claimant offered?
If declined, why did the claimant not accept the new assignment?
does employer have a record of claimant contact
was further work available
- Early Acceptance Of Resignation Separations/School
Quit.
Fact Pattern: Claimant tells employer he would
be quitting to return to college and employer effectuates separation immediately
by telling claimant to clock out and remove his personal belongings.
Law: Section 207.044; Section 207.045; Section
207.052
Precedents: VL and MC 135.25
how much notice was given (greater than two weeks)
did claimant give a specific date as last date of work
when did school start
is claimant in school presently (available for work)
why did employer accept notice early
any other reason for quitting
could claimant have continued working on a part time basis
did claimant check about possibility of part time work
- Quit Or Discharge/What Constitutes Discharge.
Fact Pattern: Claimant failed to return to work
after 3 day disciplinary suspension. She filed an initial claim instead.
Law: Section 207.044; Section 207.045
Precedents: MC 135.45
why was she placed on suspension
was it with/without pay and/or benefits
why did claimant fail to report back
what was claimant told about terms of suspension
was she told when to report back
were proper progressive disciplinary procedures followed
was claimant going to be discharged (if so, what incident)
prior warnings
was there a union contract
was there a grievance procedure to recover the 3 days suspension
- Quit Versus Discharge/Was Claimant Unemployed When
Initial Claim Was Filed.
Fact Pattern: At time of employer's annual two
week shutdown, claimant and other similar workers are placed on vacation
status, performing no work and with a recall date two weeks thereafter,
and were issued vacation pay equivalent to two weeks pay for the period.
Claimant filed an initial claim during the two week period.
Law: Section 207.044; Section 207.045; Section
208.001
Precedents: VL 495.00; TPU 80.20
was there a continuation of benefits
why did the claimant think he was unemployed
had claimant been placed on vacation status with pay on other shutdowns
common practice
what was employer's policy regarding vacation
was there a union contract providing for the vacation while shut down
did claimant indicate the pay on his continued claims
did claimant have right to take the vacation at another time
was it accrued vacation
did claimant go back to work (if not, why not)
how much was the vacation pay
were other benefits affected
why was there a shut down (for whose benefit)
- Refusal To Accept or Apply For Suitable Work.
Issue: whether the claimant failed without good
cause to apply for or accept suitable work.
Law Cite: Section 207.047 of the Act provides that
an individual is disqualified for benefits if during the individual's current
benefit year the individual failed, without good cause, to apply for available,
suitable work when directed to do so by the Commission, or to accept suitable
work offered to the individual, or to return to the individual's customary
self-employment, if any, when directed to do so by the Commission. The disqualification
continues until the individual has returned to employment and worked for
six weeks, or earned wages equal to six times the individual's benefit amount.
Section 207.008 of the Act provides that in determining whether work is
suitable for an individual, the Commission shall consider the degree of
risk involved to the individual's health, safety and morals at the place
of performance of the work, the individual's physical fitness and previous
training, the individual's experience and previous earnings, the individual's
length of unemployment and prospects for securing local work in the individual's
customary occupation, and the distance of the work from the individual's
residence.
Notwithstanding any other provision of this Act, work is not suitable and
benefits may not be denied under this Act to an otherwise eligible individual
for refusing to accept new work if: (1) the position offered is vacant directly
because of a strike, lockout, or other labor dispute; (2) the wages, hours,
or other conditions of the work offered are substantially less favorable
to the individual than those prevailing for similar work in the locality;
or (3) as a condition of being employed, the individual is required to join
a company union or to resign from or refrain from joining a bona fide labor
organization.
Questions:
When did the claimant file his initial claim for benefits?
What was the claimant told about job referrals and work refusal when he
filed the initial claim?
(You may need to get information from the claimstaking script or TWC website
format. Claimants who file on-line or through the Tele-center are specifically
told about their responsibilities regarding work refusals.)
What was the claimant told would happen if he didn't apply for or accept
suitable work?
Commission records reflect we mailed the claimant a booklet from the TWC
entitled, "Unemployment Insurance Benefits Information" on _______________.
Did the claimant read that booklet?
What did the booklet say about the claimant applying for or accepting suitable
work? (Different sections in the booklet address this issue. You can find
the booklet on the agency's web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and then admit the
pages into evidence during the hearing.)
What type of work has the claimant done in the past?
What type of work is he qualified to perform?
What are the types of jobs the claimant will accept?
What types of jobs is the claimant seeking?
What is the salary he would accept?
What are the hours the claimant is willing to work?
Has the claimant had these hours, pay, and type of work in the past?
What is the claimant's education?
What is the length of the claimant's unemployment?
(If the claimant was offered work) Was the claimant offered a job by ______
(company) on ________ (date)?
What was the type of job offered?
How long was the job supposed to last?
Had the claimant done that type of work before?
What were the hours offered?
What was the salary offered?
Where was the job site located?
Where does the claimant live?
Where was his last job located?
Did the claimant accept it?
If no, why not? Did the claimant notify the claims office/indicate on his
claim certification for that week that he had refused work?
What was the reason he gave the company for not accepting the offer?
(If the claimant was given a referral to work) Was the claimant given a
referral by the TWC to contact ______ (company)?
When?
What was the referral for?
Did the claimant contact the company?
If yes, when? How did he contact the company? To whom did he speak? What
was the outcome of the discussion? Did he complete a job application?
If no, why not?
(For suitable work referrals, you may need to obtain testimony from the
person who gave the claimant the referral or from someone from the Tele-center
or UI Policy and Support Services Department who can testify about the referral.)
(For both situations, make sure you familiarize yourself with the fact-finding
statements in the file, and if the claimant's testimony in the hearing conflicts
with those statements, ask him about them and admit them into evidence.)
- Severance Pay Versus Wages In Lieu Of Notice.
Fact Pattern: On the day prior to filing an initial
claim, claimant was discharged and issued a check in an amount equal to
two weeks pay.
Issue: whether the claimant should be disqualified
for the receipt of wages in lieu of notice.
Law Cite: Section 207.049(a)(1) of the Act provides
that an individual is disqualified for benefits for any benefit period for
which the individual received remuneration in the form of wages in lieu
of notice.
Questions:
Where did the claimant last work before filing for benefits?
How long did he work there?
What was his salary or pay rate?
Was he discharged from his work there or did he quit?
On what date was the claimant told he was being discharged?
What was the claimant's last day of work?
Was claimant given advance notice he was to be terminated on THAT day.
Did the claimant receive any payments from the employer for any period after
his last day?
How much did he receive?
What period did the payments cover?
Were the payments based on length of service?
Were the payments part of a contractual agreement between the claimant and
the employer?
Did the claimant sign a contract/release/agreement not to sue?
What would the claimant have received had he not signed the contract/release/agreement
not to sue?
Were the payments for prior services?
What did the employer say was the purpose of the payments?
Was anything written on the payments themselves saying for what purpose
they were being given?
What was the employer's intent in giving this money to the claimant?
Were the payments made to satisfy the WARN Act?
- Timeliness Of Appeal and Petition to Reopen.
Issue: Whether the party filed a timely appeal/petition
to reopen to an adverse determination/decision.
IMPORTANT NOTE: You must enter the determination/decision appealed
and the party's appeal/petition to reopen into evidence during the hearing.
Law Cites: (Timeliness of Appeal) Section 212.053
of the Act provides that an examiner's determination is final for all purposes
unless the claimant or the person, branch, or division for which the claimant
last worked files an appeal from the determination not later than the 14th
calendar day after the date such determination was mailed to the claimant's,
person's, or branch's last known address as shown by Commission records.
(Timeliness of Appeal for Chargeback Decisions) Section 204.025 of the
Act provides that an examiner promptly shall decide the issues involved
in a timely protest and shall mail a notice of the amount of the decision
to the protesting employer. The examiner's decision becomes final 14 days
from the date the examiner mails the notice unless before that date the
employer mails to the Commission at Austin a written appeal from the examiner's
decision.
(Timeliness of Petition to Reopen) Commission Rule 16, 40 TAC 815.16, provides,
in part, that if a party to an appeal shall fail to appear at the time and
place designated for the hearing, the Appeal Tribunal may hear and record
the evidence of the party present and the witnesses, if any, and shall proceed
to decide the appeal on the basis of the record. Any party to the appeal
who fails to appear at a hearing may, within fourteen days of the date the
decision is mailed, petition for a new hearing before the Appeal Tribunal.
Such petition shall be granted if it appears to the Appeal Tribunal that
the petitioner showed good cause for his failure to appear at the hearing.
In the event that an appeal to the Commission is filed before the filing
of the petition for rehearing by the Appeal Tribunal, such appeal shall
be referred to the Commission for review.
See also Rule
32 on Timeliness.
See also Rule
3 on Proper Addresses.
Questions:
State to what address the determination/decision was mailed. (You can obtain
this information from the copy of the determination/decision in the file.
If the determination is not in the file, you can order it during your pre-hearing
review of the case by going to the CMCL screen in the mainframe Benefits
system, selecting the determination you want to order by typing an S in
the Action column and pressing enter, and then pressing the F2 key on the
next screen. You must admit the determination/decision into evidence
during the hearing.)
Was that address the party's correct mailing address at the time the determination/decision
was mailed?
If yes, is that still the correct mailing address?
If no, what was the correct mailing address at the time? Had the party notified
the TWC that the address had changed? When? How? (If the claimant is the
appealing party, you will need to check the CTAH screen in the mainframe
Benefits system (or Claimant Info in the Appeals Benefits system) during
your pre-hearing review of the case to see if the claimant filed any address
changes. If the employer is the appealing party, you will need to check
the CMDA screen in the mainframe Benefits system to see if the employer
had a designated address for claims filing purposes. You will also need
to check the employer's protest if it's in the file to see if the employer
wrote in the address where it wanted the determination to be mailed. You
may need to send these screen print-outs to the parties for the hearing,
and you may need to admit into evidence the print-outs and the employer's
protest during the hearing.)
Did the party normally receive mail at the address to which the determination/decision
was mailed?
Did the party receive the determination/decision within a few days of the
mailed date?
If no, was the party having any trouble receiving its mail during that time?
What kind of trouble? If the party didn't receive the determination/decision,
how did it learn that an adverse determination/decision had been issued?
If yes, did the party receive the determination/decision at the address
to which it was mailed? If the party received the determination/decision
at a different address, at what address was it received?
When did the party receive the determination/decision? (If the party is
alleging delayed delivery.)
Did the party read the determination/decision?
Did the party understand it?
How many days did the party think it had to appeal/petition to reopen?
When did the party prepare the appeal/petition to reopen?
Did the party fax the appeal/petition to reopen? Who faxed it? When? Did
anyone else observe this person faxing the appeal/petition? To what number
was the appeal/petition faxed? Did the party keep a fax confirmation sheet?
(You may need to obtain the confirmation sheet and admit it into evidence.)
Did the party mail the appeal/petition? When?
Where did the party mail it? At a mailbox or a post office?
Was it mailed on the postmark date?
Where did the party mail it? At a mailbox or a post office?
Did the party see the postal worker hand date the envelope?
Did the witness testifying mail it himself/herself or did someone else mail
it?
Is the mail stamped out of that particular city or does it go to another
city to be stamped?
(If the party appealing/petitioning is an employer/business) Establish
the employer's mailing routine:
Find out what time the employer generally mails correspondence.
How does the employer mail: Does the person testifying mail correspondence
or does he/she give it to someone else, like a secretary, to mail?
How is the mail picked up? Does the USPS pick it up or does a company employee
mail it?
When is the mail picked up?
Does the person testifying know when the mail was picked up on the particular
day the appeal/petition was mailed? When? Did the person see it being picked
up?
If the appeal/petition was hand delivered, on what date was it delivered?
To what address? To whom was it delivered?
If party is alleging non-receipt:
Who received the mail at that location
Who opens the mail
How is the mail handled
If claimant, how many persons get mail there?
Did claimant ask others if they saw the correspondence?
If employer, how is the mail routed?
Could it have been misdirected to another company department?
Note: The AT can take jurisdiction on an untimely appeal to an open period
ineligibility fourteen days prior to the date of the appeal. However, if
this applies, the ineligibility cannot be closed any earlier than the Saturday
of the week in which the AT has jurisdiction.
- Timeliness of Protest.
Issues: Whether the employer filed a timely protest
to the notice of the initial claim
or
Whether the employer filed a timely protest to the Notice of Maximum Potential
Chargeback.
IMPORTANT NOTE: You must enter the employer's protest into evidence
during the hearing.
Law Cites: (Timeliness of Protest to the IC) Section
208.004 of the Act provides that a person who receives notice of the filing
of an initial claim for benefits shall notify the Commission promptly of
any facts known to the person that may adversely affect the claimant's right
to benefits, or affect a charge to the person's account. If such person
does not mail or otherwise deliver the notification to the Commission within
14 days (prior to September 1, 1997, 12 days) after the date notice of claim
was mailed by the Commission, such person waives all rights in connection
with the claim, including rights under Subchapter B, Chapter 204, other
than rights relating to a clerical or machine error as to the amount of
the person's chargeback or maximum potential chargeback in connection with
the claim for benefits.
(Timeliness of Protest to the Notice of Maximum Potential Chargeback) Section
204.023 of the Act provides that the Commission shall mail to an employer
a notice of the employer's maximum potential chargebacks when benefits are
first paid if notice of an initial claim has not already been mailed to
the employer under Section 208.002; and the employer's account is potentially
chargeable with benefits as a result of the initial claim and payment of
benefits.
Section 204.024 of the Act provides that an employer must mail to the Commission
at Austin a protest no later than the 30th day after the date the notice
was mailed (prior to September 1, 1999, no later than the 14th day) or the
right to protest the chargeback is waived. The protest must include a statement
of the facts supporting the grounds of the protest.
Section 204.025 of the Act provides that an examiner promptly shall decide
the issues involved in a timely protest and shall mail a notice of the amount
of the decision to the protesting employer. The examiner's decision becomes
final 14 days from the date the examiner mails the notice unless before
that date the employer mails to the Commission at Austin a written appeal
from the examiner's decision.
Questions:
State to what address the notice (of initial claim or Maximum Potential
Chargeback) was mailed to the employer. (You can obtain this information
from the copy of the notice if it's in the file. If it's not in the file,
you will need to print the address from either the mainframe Benefits system
or the Appeals Benefits system and send that print-out to the parties for
the hearing. You must admit into evidence whatever you read from.)
Was that the correct mailing address for the employer at the time the notice
was mailed?
If yes, is that still the employer's correct mailing address?
If no, what was the employer's correct mailing address at the time? (During
your pre-hearing review of the case, you will need to check to see if the
employer had a designated address for claims filing/chargeback purposes.
The mainframe Benefits screen to see if the employer had a designated address
for claims filing purposes is CMDA. All chargeback notices will be mailed
to the employer address shown in the Employer Master File (unless the employer
has a SPECIAL ADDRESS - SPS.) The print-out of either of those screens may
be another document you may need to send to the parties for the hearing
and admit into evidence during the hearing.)
Did the employer normally receive mail at the address to which the notice
was mailed?
Was that address the physical location of where the claimant last worked
for the employer?
Did the employer receive the notice?
If no, was the employer having any trouble receiving its mail during that
time? What kind of trouble? If the employer didn't receive the notice, how
did the employer learn that a claim had been filed?
If yes, did the employer receive the notice at the address to which it was
mailed? If the employer received the notice at a different address, at what
address did the employer receive the notice?
When did the employer receive the notice? (Try to establish a specific
date to see if the employer received it prior to the protest deadline.)
Did the employer read the notice?
Did the employer understand the notice?
How many days did the employer think it had to protest?
When did the employer prepare the protest?
Did the employer fax the protest? Who faxed it? When? Did anyone else observe
this person faxing the protest? To what number was the protest faxed? Did
the employer keep a fax confirmation sheet? (You may need to obtain the
confirmation sheet and admit it into evidence.)
Did the employer mail the protest? When?
Where did the employer mail it? At a mailbox or a post office?
Did the employer see the postal worker hand date the envelope?
Did the witness testifying mail it himself/herself or did someone else mail
it?
Is the mail stamped out of that particular city or does it go to another
city to be stamped?
(If a business) Establish the employer's mailing routine:
Find out what time the employer generally mails correspondence.
How does the employer mail: Does the person testifying mail correspondence
or does he/she give it to someone else, like a secretary, to mail?
How is the mail picked up? Does the USPS pick it up or does a company employee
mail it?
When is the mail picked up?
Does the person testifying know when the mail was picked up on the particular
day the protest was mailed? When? Did the person see it being picked up?
If the protest was hand delivered, on what date was it delivered? To what
address? To whom was it delivered?
If the employer filed an oral protest, on what date did the employer protest?
What number did the employer call?
To whom did the employer speak?
Did the employer get a confirmation number?
What was the number?
If the employer protested via the Internet, to what Web site address did
the employer go?
What did the employer do to access the system? (The Notice of UI Application
would have contained an Access Key number the employer would have had to
enter to access the internet response screens.)
What information about this claimant did the employer provide?
How did the employer submit its protest? (It would have had to click on
"Submit.")
On what date did the employer submit its protest?
Did the employer receive a confirmation number?
Did the employer print out the confirmation page (which would show the confirmation
number and the date of the response)? (If the employer printed out the confirmation
page and still has it, you may have to have the employer fax or mail you
a copy. If the employer can fax you a copy during the hearing, try to obtain
waiver from the claimant if the claimant doesn't have a fax machine and
admit it as evidence. If the employer can't fax it to you, have him mail
it to you and the claimant, continue the hearing, and admit it as evidence
during the next hearing.)
IMPORTANT NOTE: Timeliness of protest will not be an issue
if an employer appeals a determination shown in either the NMDL screen of
the mainframe Benefits system or in the Overview tab of the Appeals Benefits
system that states "No Protest From Employer to Notice of Application
for UI Benefits - Not Disqualified." This determination is issued when
the employer timely protests the claim but does not raise any issue about
whether the claimant should be entitled to receive unemployment benefits.
- Ability.
Issue: whether the claimant was able to work.
Law Cite: Section 207.021(a)(3) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual is able to work.
Questions:
At the time the claimant filed his claim for benefits, was he able to work?
At any time after he filed the claim for benefits, did he get injured or
become sick?
When did the injury occur or the illness begin?
What was the injury or illness?
Did the claimant see a doctor?
If no, why didn't he see a doctor?
If yes, did the doctor ever say the claimant couldn't work?
When could the claimant not work? Has the doctor released the claimant to
work? As of when? Did the claimant obtain a doctor's statement saying he
could work? Did he submit the doctor's statement for the hearing? (If the
claimant has a statement that says he can work but hasn't sent it in for
the hearing, you may need to continue the hearing in order to obtain it
and admit it into evidence.)
- Alternate Base Period.
Issue: Whether a claimant is entitled to use an
alternate base period to determine his monetary eligibility for benefits.
(The claimant's request to use an alternate base period will be disallowed
if the claimant filed his/her initial claim more than 24 months after the
date the illness, injury, disability, or pregnancy began or occurred.)
Law Cite: Section 201.011(1) of the Act provides
that "Base period" means:
- the four consecutive completed calendar quarters, prescribed by the
commission, in the five consecutive completed calendar quarters preceding
the first day of an individual's benefit year; or
- for an individual precluded because of a medically verifiable injury
or illness from working during a major part of a calendar quarter of the
period that would otherwise be the individual's base period under Paragraph
A, the first four calendar quarters of the five consecutive calendar quarters
preceding the calendar quarter in which the illness began or the injury
occurred if the individual files an initial claim for benefits not later
than 24 months after the date on which the individual's injury or illness
began or occurred.
Questions:
Prior to filing the initial claim, had the claimant suffered/experienced
an injury, illness, disability, or pregnancy?
When did the injury, etc. begin?
If it was an injury, was it an on-the-job injury?
What type of injury was it?
If it was an illness or other disability, what type of illness or disability
was it?
How did it affect the claimant from working?
Did the claimant see a doctor?
Was the claimant under a doctor's care? If yes, how long?
Was the claimant receiving worker's compensation? If yes, from when to when?
What was the effective date of the claimant's initial claim?
Why did the claimant wait so long to file the initial claim (between the
date of the injury, illness, etc. and the actual date he/she filed the initial
claim)?
Did the claimant's medical condition keep the claimant from working during
any part of the base period?
If so, what part?
- Attending School Availability.
Issue: whether the claimant was available for full-time
work.
Law Cite: Section 207.021(a)(4) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual is available for work.
Questions: (These questions can also be adapted
for a hearing on the issue of whether the claimant is restricting his availability
by demanding a higher wage than that available in his labor market.)
When did the claimant file his initial claim for benefits?
Was he told at that time that in order to be eligible for benefits, he would
be required to be available for full-time work?
Was he told what might happen if he was not available for full-time work?
What was he told?
Did he receive in the mail a booklet from the TWC entitled "Unemployment
Insurance Benefits Information"?
When did he receive it? (You may need to check to see when the booklet
was mailed to the claimant and to what address it was mailed. You can find
this information by checking the CMCL screen in the mainframe Benefits system
or by checking the Correspondence tab in the Appeals Benefits system.)
Did the claimant read that booklet?
What did the booklet say about the claimant's availability for work?
What did the booklet say would happen if the claimant was not available
for full-time work? (Different sections in the booklet address this issue.
You can find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and then admit the
pages into evidence during the hearing.)
Fact finding statements should be entered and claimant questioned about
the answers (was this information accurate at the time of the statement.)
The claimant may have changed his mind since then.
Is the claimant or was the claimant attending school while filing for benefits?
When did the claimant start school?
When does school end?
When is/was the claimant attending school? (hours of the day and days of
the week)
What school?
Can the claimant change his schedule?
If yes, to what days and hours?
Is the claimant willing to change his schedule?
If yes, how long has he been willing to change it?
If no, why not?
Is the claimant willing to quit school in order to accept a full-time job?
If yes, how long has he been willing to do this? (If the fact-finding statement
the claimant gave during the initial investigation conflicts with the testimony
he's giving in the hearing, remember to ask the claimant about the prior
statement and admit it into evidence during the hearing.)
If no, why not?
What types of jobs is the claimant qualified to perform?
Does the claimant have any experience or training for those types of jobs?
What are the usual days and hours of work for those types of jobs?
For what types of jobs is the claimant looking?
When is the claimant available for work? (hours of the day and days of the
week)
(If the claimant is restricting the days or hours he is available for
work, you will need to make arrangements in advance of the hearing to obtain
testimony during your hearing from an expert in the claimant's labor market.
To find someone in the claimant's labor market, you can check the BPCF screen
in the mainframe Benefits system. In the lower right corner, you will find
the telephone number to the employment services office the system thinks
is the closest to the claimant. Call that number to see if you can arrange
for someone there to provide labor market information in your hearing. This
person will need to present testimony about:
- his or her qualifications to present testimony about the claimant's labor
market (if he or she is familiar with the labor market and how he or she
became familiar)
- the usual days and hours of work for the types of jobs the claimant is
seeking
- whether those types of jobs are available in the claimant's labor market
area
- whether, given the days and hours the claimant is attending school, the
claimant would be likely to find a full-time job in the area.)
- Child Support.
Issue: whether the claimant has child support obligations
which are being enforced pursuant to a plan described by Section 454 of
the Social Security Act that has been approved by the Secretary of Health
and Human Services under Part D, Title IV, of the Security Act and are properly
deductible from unemployment insurance benefits.
Law Cite: Section 207.093(a) of the Act provides
that the commission shall withhold from the benefits payable to an individual
that owes a child support obligation (1) an amount equal to any amount required
to be withheld under legal process properly served on the commission; if
Subdivision (1) does not apply, the amount determined under an agreement
submitted to the commission under Section 454(20)(B)(I) of the Social Security
Act (42 U.S.C. Section 654) by the state or local child support enforcement
agency; or (3) if neither Subdivision (1) or (2) applies, the amount the
individual specifies to the commission to be withheld.
Questions:
Has the claimant been instructed by court order to pay child support?
When was that court order made/entered?
When was the claimant supposed to begin paying the child support?
How much was he instructed to pay?
How often was he supposed to pay?
Have there been any subsequent court orders which have changed the amount
of child support the claimant was ordered to pay?
When was each subsequent court order made/entered?
What was the amount he was required to pay?
When did those changes go into effect?
(Make sure you have a copy of the court order. You will need to admit this
as evidence during the hearing.)
- Excessive Earnings.
Issue: whether the claimant was totally or partially
unemployed.
Law Cites: Section 201.091(a) of the Act provides that an individual is totally
unemployed in a benefit period during which the individual does not perform
services for wages in excess of the greater of: (1) $5.00; or (2) 25 percent
of the benefit amount.
Section 201.091(b) of the Act provides that an individual is partially
unemployed in a benefit period of less than full-time work if the individual's
wages payable for that benefit period are less than the sum of the benefit
amount the individual would be entitled to receive if the individual was
totally unemployed; and the greater of (1) $5.00; or (2) 25 percent of the
benefit amount.
Section 201.091(d) of the Act provides that, notwithstanding Subsection
(b), an individual is not partially unemployed for a benefit period in which
the individual's working hours are reduced by the individual's employer
as a result of misconduct connected with the work on the part of the individual.
Such limitation will be effective for a maximum of four (4) weeks from the
effective date of such a reduction in hours. (Section 201.091(d) of the
Act applies only in case where the initial claim is filed on or after September
1, 1997.)
Questions:
When did the claimant file his claim for benefits?
Since filing his claim, has the claimant worked anywhere else?
Where has he worked?
When did he begin working there?
What did he do there?
How long did he work there?
Is he still currently working there? (If not, why is he no longer working
there? You may need to create a case for the tele-center to adjudicate if
the claimant is no longer working there and the tele-center has not adjudicated
the separation.)
How much was the claimant paid?
When was the claimant paid? (per week, per month, etc.)
How was he paid? (check, cash, etc.)
For what period of time did each paycheck cover?
What did the claimant earn during each week in question?
What is the claimant's weekly benefit amount? (You can obtain this information
by looking at the MDCW screen in the Benefits system or by looking at the
Monetary tab in the Appeals Benefits system. You might want to send a print-out
of one of these screens to the claimant prior to the hearing and admit it
as evidence during the hearing if the claimant does not remember his weekly
benefit amount since you'll need to make a fact-finding about the WBA in
your decision.)
IMPORTANT NOTES: A claimant can earn up to 125% of his
weekly benefit amount during a claim week and still be eligible to receive
partial benefits for that claim week. Take 25% of the weekly benefit amount
and add it to the weekly benefit amount. You can also arrive at this figure
by multiplying the weekly benefit amount by 1.25. If the claimant earned
more than that amount during each week in question, he will not be eligible
to receive any benefits for those weeks. Please note that you should not
use either of these sections of law to invalidate an initial or additional
claim solely on the basis that the claimant earned more than 125% of his
weekly benefit amount the same week he filed for benefits (See Appeal No.
80-2881-CA-0781 in TPU 20.10 and Appeal No. 853-CA-73 in TPU 80.15). For
example, let's say you have a claimant who worked full-time shifts Monday
through Thursday of his last week of employment and was told at the end
of the day on Thursday that he was being laid off that day. The following
day he filed his initial claim for benefits. Even if the claimant earned
more than 125% of his weekly benefit amount that week, he still filed a
valid initial claim since he was unemployed on the day he actually filed
his claim. He'll just receive a determination saying he had excessive earnings
and is not eligible to receive any benefits for that week.
- Failure To Register For Work.
Issue: whether the claimant registered for work.
Law Cite: Section 207.021(a)(1) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual has registered for work at an employment office
and has continued to report to the employment office as required by rules
adopted by the Commission.
IMPORTANT NOTES: These determinations are misnamed. What
you will see on the mainframe Benefits and Appeals Benefits screens is "Availability
- Failed to Register for Work." These determinations did not rule on
the claimant's availability. They ruled only on whether or not the claimant
registered for work with the Commission and if he did so in a timely manner.
The section of law used in the determination is 207.021(a)(1), which is
the section of law for reporting to the claims office and registering for
work. The section of law which rules on a claimant's availability for full-time
work is 207.021(a)(4); this section is not used in a registering for work
determination so availability should not be covered in the hearing or in
your decision. If the hearing notice shows availability as an issue to be
covered, double check the NMDL screen in the mainframe Benefits system or
the Overview tab in the Appeals Benefits system to see if there is another
determination correctly ruling on availability. If there is not, let the
parties know that issue was erroneously included on the hearing notice and
that it will not be covered in the hearing or in the decision.
Every individual who files an initial claim opening a benefit year with
the Commission must register their work history and their work qualifications
with the Commission. This should be told to them at the time they file their
initial claim and it is in the Unemployment Insurance Benefits Information
booklet they receive in the mail. The claimants are required to register
with us so we can try to help them get placed in a new job. When they don't
register, we put a hold on their claim (open period). If they register but
do so in an untimely fashion, we will put a closed period hold on their
claim.
The hearing officer will need to check the computer system to determine
what date the claimant registered for work (if they have). Sometimes the
claims examiner will include the date in their notes; sometimes they don't.
To find the registration date, use the following steps:
Go to internet, www.twc.state.tx.us, website. Click on work in Texas
icon. Click workforce staff log-on, then enter userid (generally 3-digit
id) and password. Click job seeker at top of next page. Then enter claimant
SSN, and click search. Under Job Seeker Summary, you will see date registered
for work. If you don't have SSN, can enter claimant's name, but several
choices may come up. Then you can search for address or phone number of
your specific claimant.
On another note, you need to check to see if the Tele-center has issued
any reversal determination. If a reversal is mailed within fourteen days
from the date the original determination was mailed and prior to
the appeal date, you don't have to take testimony on the issue. You should
explain to the party that the issue has already been reversed, and you should
issue a "moot" decision for that determination.
You should also see whether a redetermination has been issued that closed
the ineligibility. If it has been closed, this would need to be taken into
account in developing the record and writing the decision.
Questions:
How did the claimant file his initial claim for benefits?
(over phone, through website)
The format advises claimant he/she must register for work with the Commission.
Does the claimant remeber reading to register for work? (if filed on web)
What was the deadline by which he had to register?
We mailed the claimant a blue book of UI information on _______.
Did the claimant read that booklet?
(The claimant would also have received a coversheet with that booklet that
would have told him he had 7 days from the date the booklet was mailed to
him to register for work.)
Did the claimant read the coversheet? What did it say about registering
for work?
What did the booklet say about the claimant registering for work with the
Commission? (Different sections in the booklet address this issue. You can
find the booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and admit those pages
into evidence during the hearing.)
Did the claimant register for work?
When?
How did he register (in person or on-line)?
If he registered in person, where did he register?
Did he speak to someone? What was the person's name?
Did he receive any confirmation showing he had registered?
If he registered on-line, did he get a confirmation that his registration
had been accepted?
Did the Web site tell him to check back the next day to confirm that his
registration had been processed/accepted?
Did he check back the next day? If no, why not?
Why didn't the claimant register by the deadline he was given?
- Failure To Participate In Reemployment Services.
Issue: whether or not the claimant should be held
ineligible for benefits for failure to participate in or complete reemployment
services when referred.
Law Cite: Section 207.021(a)(8) provides, in part,
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual participates in reemployment services, such as
a job search assistance service, if the individual has been determined,
according to a profiling system established by the commission, to be likely
to exhaust eligibility for regular benefits and to need those services to
obtain new employment, unless (A) the individual has completed participation
in such a service; or (B) there is reasonable cause, as determined by the
commission, for the individual's failure to participate in those services.
IMPORTANT NOTES: These determinations are misnamed.
What you will see on the mainframe Benefits and Appeals Benefits screens
is "Availability - Failed to Participate in Reemployment Services."
However, these determinations do not rule on the claimant's availability.
They rule only on whether or not the claimant participated in reemployment
services. In addition, the section of law used in the determination is 207.021(a)(8),
which is the section of law for participating in reemployment services.
The section of law which rules on a claimant's availability for full-time
work is 207.021(a)(4); this section is not used in a failure to participate
in reemployment services determination so availability should not be covered
in the hearing or in your decision. If the hearing notice shows availability
as an issue to be covered, double check the NMDL screen in the mainframe
Benefits system or the Overview tab in the Appeals Benefits system to see
if there is another determination correctly ruling on availability. If there
is not, let the parties know that issue was erroneously included on the
hearing notice and that it will not be covered in the hearing or in the
decision.
During your pre-hearing prep of the case, you will need to check the computer
system to determine what date the profiling letter was mailed to the claimant,
to what address it was mailed, to what location the claimant was supposed
to report, and the date he was supposed to report. To find this information,
do the following:
- Start with the Application Selection screen in the mainframe (the main
menu)
- Your cursor should default to where it's to the left of the Applicant
Characteristics title. Hold the "Shift" key down and at the
same time press "Tab-Tab" to position your cursor in the lower
left corner of that screen.
- Type in AD18 and press "enter."
- This will take you to a screen entitled "Worker Profiling System."
Type in the number 3 next to "Selection==>" and press "enter."
- At the next screen, type in the claimant's SSN and press "enter."
This screen will give you the claimant's name and address (to where the
letter was mailed), the date the profiling letter was mailed to him (the
"contact date"), and the date he was supposed to report (the
"report date").
- To see a copy of the profiling letter that was sent to him, press the
"F11" key and "enter." This screen will give you the
date and time the claimant was supposed to report, the address to which
he was supposed to report, and some instructions to follow. (It would
be helpful to print both of these screens out, send them to the parties
for the hearing, and admit them as evidence during the hearing.)
The claimant's participation in reemployment services is also shown as
RRES under current services if you are checking WorkinTexas.com.
Questions:
Did the claimant receive a letter from the TWC dated _____ telling him
he needed to report for reemployment services?
If yes, when did the claimant receive the letter?
Did the claimant read the letter?
What did the letter say?
What date was he to report?
Did he report as instructed?
If yes, when? To whom did he speak? What did they discuss?
If no, why not?
If the claimant did not receive the letter, was the address to which the
letter was mailed his correct mailing address? (You can check the CTAH screen
in the mainframe Benefits system (or Claimant Info in the Appeals Benefits
system) to see if the claimant filed any address changes. You may need to
send these screen print-outs to the parties prior to the hearing, and you
may need to admit them into evidence during the hearing.)
If the claimant moved, did he notify the TWC that he had moved?
If yes, when? If no, why not?
Was the claimant having any problems receiving his mail at that time? What
kinds of problems?
If the activity was not rescheduled, why not?
If no, why not?
The reason for non-attendance of the profiling session should be addressed
in the hearing and included in the decision. The written decision should
state the reason for non-attendance and whether you are finding the claimant
had "reasonable cause" or not for failure to participate.
- Filing Claim Certifications Late.
Issue: Whether claims were filed in accordance
with the regulations prescribed by the Commission.
Law Cite: Section 207.021(a)(2) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual has made a claim for a benefit under Section 208.001.
Section 208.001 of the Act provides, in part, that claims for benefits
shall be made in accordance with rules adopted by the Commission.
Commission Rule 22, 40 TAC 815.22, states, in part: (a) For adequate cause
shown, the Commission may permit retroactive or backdated work registrations
and may permit the filing of retroactive or backdated claims in order to
prevent hardship or injustice. Such work registrations and claims shall
have the same effect as though prepared and filed on the earlier date. In
the event a request for backdating a claim is approved prior to the filing
of such claim, a claimant must file the backdated claim within 60 days of
the date the backdating was authorized in order for the claim to be valid.
Questions:
When did the claimant file his initial claim for benefits?
Was he told at that time that he would be required to file claim certifications?
How often was he told he would have to file his CCs?
How was he told he was to file his CCs? (by phone, by mail)
Was he told what might happen if he did not file his claims as instructed?
What was he told?
We mailed the claimant filing instructions on _______.
(You may need to check to see when the instructions were mailed to the claimant
and to what address they were mailed. You can find this information by checking
the CMCL screen in the mainframe Benefits system or by checking the Correspondence
tab in the Appeals Benefits system.)
Did the claimant read those instructions?
What did the instructions tell him he was to do? (You can't order the instructions
that were sent to your particular claimant, but you can send a blank form
to him for the hearing, have someone from the UI Policy and Support Services
Department testify in the hearing about it, and then admit it into evidence.
The instructions actually tell the claimant to call the Tele-Serv phone
number listed every two weeks from a touch-tone telephone on his filing
day to file his claim certifications. They also tell him that if he misses
his scheduled day, he can still file his certification through Friday of
the same week. They also warn the claimant that failure to file within the
scheduled week may cause a delay or denial of benefits.)
What was the claimant's filing day?
Was he given information on what to do if he didn't file on his filing day?
Could he file on other days?
(TWC mails with the VRU Filing Instructions the Personal Identification
Number (PIN) Guidelines. The guidelines tell the claimant how to set up
his PIN number so that he can access the Tele-Serv system.)
Did the claimant receive the PIN Guidelines?
Did he set up his PIN number? (You can check the BPCH screen in the mainframe
Benefits system or the Call History tab in the Appeals Benefits system to
see all the calls the claimant made to the Tele-Serv system. PIN Update
shows when the claimant set up his PIN.)
Did he receive in the mail a booklet from the TWC entitled "Unemployment
Insurance Benefits Information"?
When did he receive it? (You may need to check to see when the booklet
was mailed to the claimant and to what address it was mailed. You can find
this information by checking the CMCL screen in the mainframe Benefits system
or by checking the Correspondence tab in the Appeals Benefits system.)
Did the claimant read that booklet?
What did the booklet say about the filing claim certifications? (Different
sections in the booklet address this issue. You can find the booklet on
the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and then admit the
pages into evidence during the hearing.)
Did the claimant file his claim certification for the period from _____
through _____?
If yes, when? (You can check the BPCH screen in the mainframe Benefits system
or the Call History tab in the Appeals Benefits system to see all the calls
the claimant made to the Tele-Serv system. CERTN SUCC - A means the certification
was successfully filed. Since many times claimants cannot remember the exact
dates they filed their CCs, it is always helpful to print off the applicable
screens for the CCs at issue, send them to the claimant prior to the hearing,
and admit them into evidence during the hearing.)
(If the CC was not timely filed) When was the claimant supposed to have
filed that CC?
Why didn't he file it then?
Had the claimant properly filed on time in the past?
- Fraud.
Issues: Whether the claimant or someone on the
claimant's behalf willfully failed to disclose, or misrepresented, material
facts
and
Whether the claimant received benefits to which the claimant was not entitled.
Law Cite: Section 214.003 of the Act provides that
if, by willful nondisclosure or misrepresentation of a material fact, by
the person or for the person by another, a person receives a benefit when
a condition imposed for qualifying for the benefit is not fulfilled or the
person is disqualified from receiving the benefit, the person forfeits the
benefit received and right to a benefit that remains in the benefit year
in which the nondisclosure or misrepresentation occurred. If a person attempts
to obtain or increase a benefit by a nondisclosure or misrepresentation,
the Commission may cancel the person's right to benefits that remain in
the benefit year. A forfeiture or cancellation is effective only after the
person has been afforded an opportunity for a fair hearing before the Commission
or its duly designated representative.
Section 214.002 of the Act provides that a person who has received an improper
benefit is liable for the amount of the improper benefit. The commission
may recover an improper benefit by deducting the amount of an improper benefit
from any future benefits payable to the person, or collecting the amount
of an improper benefit for the compensation fund. "Improper benefit"
means the benefit obtained by a person because of the nondisclosure or misrepresentation
by the person or by another of a material fact, without regard to whether
the nondisclosure or misrepresentation was known or fraudulent; and while
any condition for the person's qualifying was not fulfilled in the person's
case; or the person was disqualified from receiving benefits.
Questions:
You will need to take some background information about the claimant:
How old is he?
What is his level of education?
If he attended college, which college?
Did he receive his degree?
If yes, what type of degree?
If no, how many years did he complete?
Can he read and write?
What is his marital status?
Does he have any children? Number of children? Ages?
When did the claimant file his initial claim?
Did he receive the Tele-Serv Filing Instructions that were mailed to him
on ________?
When did he receive them?
Did he read them?
Did he understand what the instructions said?
What did those instructions say about reporting earnings when filing continued
claims?
Did the claimant receive the "Unemployment Insurance Benefits Information"
booklet the TWC mailed to him on _______?
When did he receive it?
Did he read the booklet?
Did he understand what it said?
What does it say about reporting earnings when filing continued claims?
What does the booklet say will happen if a claimant does not report his
earnings?
(Different sections in the booklet address this issue. You can find the
booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
It's always helpful to make copies of these pages and send them to the parties
before the hearing and then admit the pages into evidence during the hearing.)
Did the claimant work during the time he filed for unemployment from ______
through ______?
Where did he work?
How much was he paid during that time? Per hour? Per week?
How many hours per week did he work?
Do not ask the claimant if they want a postponement to hire an attorney.
Do not ask the claimant if they are willing to pay the money back. Never
advise a claimant they should ignore an overpayment as legal action may
be taken if they fail to make restitution. Always check PCOL (overpayment
list) on the mainframe to see if a Notice of Assessment has been served.
The designations A06 or A11 indicate the NOA has been served. Once the Notice
of Assessment has been served, the Appeal Tribunal no longer has jurisdiction
and the appeal must be dismissed.
Did he report his earnings on his continued claims? (Send to the parties
copies of the earnings the claimant reported for the CCs in question. From
the mainframe Benefits system, you can print off the BPCS screen or you
can print off the responses for the individual claims by typing an R in
the Action column to the left of the CC from the list on the BPCS screen
and pressing enter. From the Appeals Benefits system, you can print the
screen under the Certifications tab. Discuss these print outs with the claimant
during the hearing and admit them into evidence to show what wage amounts
he actually reported.)
If the claimant did not report his earnings, why didn't he?
If he was confused about what he should report, did he contact the TWC for
clarification?
If yes, when? To whom did he speak? What was he told?
If no, why not?
The question states, "Did you work or have earnings..." Since
the claimant had worked those weeks, why did the claimant answer that question,
"no??" ((There will be some fact-finding in the file from both
the claimant and the employer, and there will be some wage information that
our Fraud Prevention, Collections and Detection Department obtained from
the employer during its investigation. Make sure you familiarize yourself
with these statements so you can question the parties about any inconsistencies
between the statements and what their testimony is in the hearing. You will
need to admit the employer's wage information, and if you discuss the fact-finding
statements, you will need to admit those into evidence as well.)
Did the claimant receive benefits during the period of time from _____
through _____? (The BPCS and Certifications tab screens mentioned above
will show how much in benefits he was paid for each claim week. Make sure
you admit this into evidence.)
How much did the claimant receive?
Did he know he might not be entitled to receive those benefits?
Did the claimant cash the benefits checks that were mailed to him? (If the
claimant denies having received the checks, you will need to continue the
hearing in order to obtain copies of the warrants, and you must send the
copies to the parties for the continuance. If so, these should be requested
from "UI Central" in Outlook. At the continuance, you will need
to discuss the warrants with the claimant and admit them into evidence.)
- Incorrect Last Work.
Issue: whether the claimant named his correct last
work on his claim.
Law Cite: Section 208.002 of the Act provides that
the Commission shall mail a notice of the filing of an initial claim for
benefits to the person for whom the claimant last worked before the effective
date of the initial claim. If the person for whom the claimant last worked
has more than one branch or division operating at different locations, the
Commission shall mail the notice to the branch or division at which the
claimant last worked. Mailing of a notice under this section to the correct
address of the person, branch, or division for which the claimant last worked
is notice of the claim to the person.
Questions:
When did the claimant file his claim for benefits? (Establish both the
actual date of filing and the effective date of the claim. In the Appeals
Benefits system, you can look under the Claim History tab to find the file
dates for all the claims the claimant has filed.)
Was he told at that time he needed to provide the name of the place where
he last worked?
What name/company did the claimant give at that time as the place where
he last worked?
When was the last day the claimant worked for that person/company?
In between the last day the claimant worked for that person/company and
the actual date he filed his claim, did he work anywhere else?
Where did he work?
When did he start working there?
Is he still working there?
If yes, how often does he work (days of the week)? What are his hours?
If no, when was his last day?
(If the claimant is still working at this job or was not separated from
it until after he filed his claim, you will need to find out if the job
was a regular full-time job to establish whether or not the claimant was
even unemployed at the time he filed his claim. If the job was part-time
work, you will need to establish whether it was regular part-time work or
part-time, as-needed work. If the job was a regular part-time job where
the claimant worked consistently from week to week and he worked there until
after he filed his claim, it would not be his last work prior to filing
his claim. However, if the job was an on-call, as needed job, the claimant
would have been separated from work at the completion of every shift, and
it would be his last work prior to filing his claim.)
Why didn't the claimant name this person/company as the last place he worked
when he filed his claim for benefits?
You must get a statement regarding the reason so you can determine if the
claimant's reason for giving the wrong last work is fraudulent. If you decide
that the claimant was not intentionally misrepresenting where he last worked,
you can authorize a backdated corrected claim. You should NOT tell the claimant
to contact the tele-center and file a new claim. If you have the information
available to process a new claim, you should direct UISS to do so in the
decision. If the information is not available to process the new claim,
you should direct UISS to contact the claimant and take the new claim if
appropriate.
However, if you decide that the claimant intentionally misrepresented where
he last worked, don't tell him anything about backdating the claim. Your
decision should state why you are not authorizing a backdated claim. You
should send an e-mail to our Fraud Prevention, Collections and Detection
Department and explain the facts of your case and that the claimant may
have intentionally misrepresented his last work so that that department
can conduct a possible fraud investigation.
In some cases, work as an independent contractor may be named as the last
work on an initial claim. Care should be taken in these cases to carefully
explain to parties (if appropriate) that the last work does not necessarily
have to be in "employment". A few extra minutes of courteous explanation
will help alleviate the employer's concerns about potental tax liability,
may reduce stress levels at the hearing, and may prevent unnecessary future
appeals.
- Non-Fraud Overpayment.
Issues: Whether the claimant received benefits
to which the claimant was not entitled.
Law Cite: Section 214.002 of the Act provides that a person who has received
an improper benefit is liable for the amount of the improper benefit. The
commission may recover an improper benefit by deducting the amount of an
improper benefit from any future benefits payable to the person, or collecting
the amount of an improper benefit for the compensation fund. "Improper
benefit" means the benefit obtained by a person because of the nondisclosure
or misrepresentation by the person or by another of a material fact, without
regard to whether the nondisclosure or misrepresentation was known or fraudulent;
and while any condition for the person's qualifying was not fulfilled in
the person's case; or the person was disqualified from receiving benefits.
Questions:
Did the claimant work during the time he filed for unemployment from _____
through ______?
Where did he work?
What type of work die he do there?
How much was he paid during that time? Per hour? Per week?
How many hours per week did he work?
Did he report his earnings on his continued claims? (Send to the parties
copies of the earnings the claimant reported for the CCs in question. From
the mainframe Benefits system, you can print off the BPCS screen or you
can print off the responses for the individual claims by typing an R in
the Action column to the left of the CC from the list on the BPCS screen
and pressing enter. From the Appeals Benefits system, you can print the
screen under the Certifications tab. Discuss these print outs with the claimant
during the hearing and admit them into evidence to show what wage amounts
he actually reported.)
If the claimant reported some earnings, ask him if the reported earnings
are correct for the specific CCs in question. (If the employer's statement/wage
information shows more earnings than the claimant reported, you will need
to question the claimant and the employer about the employer's statement/wage
information and admit it into evidence.)
(There will be some fact-finding in the file from both the claimant and
the employer, and there will be some wage information that our Fraud Prevention,
Collections and Detection Department obtained from the employer during its
investigation. Make sure you familiarize yourself with these statements
so you can question the parties about any inconsistencies between the statements
and what their testimony is in the hearing. You will need to admit the employer's
wage information, and if you discuss the fact-finding statements, you will
need to admit those into evidence as well.)
Did the claimant receive benefits during the period of time from _____
through _____? (The BPCS and Certifications tab screens mentioned above
will show how much in benefits he was paid for each claim week. Make sure
you admit this into evidence.)
How much did the claimant receive?
Did the claimant cash the benefits checks that were mailed to him? (If the
claimant denies having received the checks, you will need to continue the
hearing in order to obtain copies of the warrants, and you must send the
copies to the parties for the continuance. At the continuance, you will
need to discuss the warrants with the claimant and admit them into evidence.)
Never advise a claimant they should ignore an overpayment as legal action
may be taken if they fail to make restitution. Always check PCOL (overpayment
list) on the mainframe to see if a Notice of Assessment has been served.
The designations A06 or A11 indicate the NOA has been served. Once the Notice
of Assessment has been served, the Appeal Tribunal no longer has jurisdiction
and the appeal must be dismissed.
- Overpayment Due to a Monetary Redetermination.
Issue: whether the claimant received benefits to
which he was not entitled.
Law Cite: Section 212.006 of the Act provides that
benefits paid to a claimant that are not in accordance with the final determination
of an examiner or decision of an Appeal Tribunal, the Commission, or a reviewing
court shall be refunded by the claimant to the Commission, or in the discretion
of the Commission, deducted from future benefits payable to the claimant
under this Act.
In determining whether the overpayment was the result of Commission error,
please see the following precedent, which is found in Section MS 340.20
of the Appeals Policy and Precedent Manual:
Appeal No. 90-12054-10-120190. The claimant was erroneously credited
with base period wages from an employer for which the claimant never worked.
The claimant immediately, and persistently thereafter, reported this error
to her TEC local office. Nonetheless, the claimant continued to be issued
weekly benefits in amounts reflecting the inclusion of the erroneous wage
credits. These improper payments continued for more than five months until
the claimant's entitlement was recalculated and an overpayment established.
HELD: The Commission affirmed the deletion of the wage credits erroneously
credited to the claimant's base period. However, the Commission voided the
initial determination and the Appeal Tribunal decision ruling that the claimant
was liable to repay the erroneously paid benefits under Section 6(b) (now
codified as Section 212.006) of the Act, reasoning that Section 6(b) (now
codified as Section 212.006) applies only to situations in which an overpayment
arises because a determination or decision is reversed on appeal through
the administrative process. There was no such reversal in this case. The
Commission also held that Section 16(d) (now codified as Section 214.002)
of the Act did not apply because, in this instance, there was no nondisclosure
or misrepresentation by the claimant or by another and because the overpayment
here was caused solely by the Texas Employment Commission. The Commission
cited Martinez v. TEC and Mollinedo v. TEC in support of this
holding regarding the inapplicability of Section 16(d) (now codified as
214.002) of the Act.
Questions:
When did the claimant file his initial claim for benefits?
After the claimant filed his claim, did he receive a Statement of Regular
UI Benefits dated ____ in the mail? (This statement will show the wages
the claimant had in his base period when he filed his IC and that were used
to calculate what his weekly benefit amount and maximum benefit amount would
be. It's helpful to send it to the claimant prior to hearing so you can
discuss it with him during the hearing and admit it into evidence. If it's
not in the file, you can order it from the mainframe Benefits system by
typing an S in the Action column next to that statement on the CMCL screen,
pressing enter, and then pressing the F2 key on the next screen.)
Did the claimant read the statement when he received it?
Did he agree with the wages shown?
If he disagreed with some wages, what did he disagree with?
If the print-out showed an employer the claimant never worked for or showed
wages the claimant never earned, did he notify the TWC of the error?
If yes, when? To whom did he speak? What did he tell the person? What did
the TWC person say he would do?
If no, why not? (The back of the Statement states, "If any wages are
missing, are wrong, or if any of the wages listed are not yours, contact
us immediately at the phone number on the front of this form and request
a review of this information." It also states, "TO HAVE WAGES
DELETED - If any wages listed are not yours, contact us immediately at the
phone number on the front. You may receive benefits in error if you do not
report incorrect wages. You must repay any benefits paid to you in error."
The "Unemployment Insurance Benefits Information" booklet that
is mailed to the claimants also addresses this issue. You can find the booklet
on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
It might be helpful to copy the applicable pages from the booklet, send
it to the claimant prior to the hearing, and admit it into evidence during
the hearing.)
(A subsequent Statement of Regular UI Benefits would have been mailed to
the claimant. This statement would have deleted the wage credits that should
not have been in the claimant's base period, and the deletion of the wage
credits would have caused the overpayment. If the claimant testifies in
the hearing that he was entitled to all the original wage credits and that
the ones deleted should not have been deleted, you may have to reset the
case for a wage credit hearing. For record development in your overpayment
case, however, order this statement also, send it to the claimant for the
hearing, discuss it with him during the hearing, and admit it into evidence.)
Did the claimant receive $____ in benefits for claim week ending _______?
(Go through all the claim weeks at issue.)
Did the claimant cash those checks?
- Reasonable Assurance.
Issue: whether the claimant is between school terms
and has reasonable assurance that services will be performed in the upcoming
school term.
Law Cite: Section 207.041(a) of the Act provides
that benefits are not payable to an individual based on services performed
in an instructional institution, research, or principal administrative capacity
for an educational institution for a week beginning during the period between
two successive academic years or terms, or under an agreement providing
for a similar period between two regular but not successive terms if the
individual performed the services in the first of the academic years or
terms, and there is a contract or reasonable assurance that the individual
will perform the services in that capacity for any educational institution
in the second of the academic years or terms.
Section 207.041(b) of the Act provides that benefits are not payable to
an individual based on services performed for an educational institution
in a capacity other than a capacity described by Subsection (a) for a week
that begins during a period between two successive academic years or terms
if the individual performed the services in the first of the academic years
or terms, and there is a reasonable assurance that the individual will perform
the services in the second of the academic years or terms.
Questions:
When did the claimant file his initial claim for benefits?
Had the claimant worked for ________ (school district) in the past? When?
In what capacity did the claimant perform services?
Does the claimant have wage credits from any educational institutions?
Was the claimant between terms or semesters?
When did the semester or term end?
Was the claimant on a school holiday or break?
When did the holiday or school break begin?
Has school resumed?
If not, when will school resume?
Did the claimant perform services for an educational institution in the
previous term or year?
Did the claimant perform services for a governmental entity that provides
services to educational institutions?
If yes, were those serrvices performed in an educational institution?
Did the claimant have reasonable assurance he will be performing the same
services in the upcoming term?
If the job offered for the upcoming term is different, what are the terms
and conditions of the offer?
What assurances did the claimant get about returning to work during the
next school year or semester? Or after the holiday or break? (such as a
letter)
What did the letter say?
When did the claimant get it?
Had the school district normally sent the claimant a letter in the past?
How was the claimant rehired from year to year?
Did the claimant know he would resume his work relationship from year to
year?
Was there any way of knowing?
Was work always guaranteed?
Did the claimant get paid when he didn't work?
If the claimant has reasonable assurance from any educational institution,
ALL educational wage credits are suppressed until the claimant is no longer
between terms or on a school break or holiday. If you decide to rule the
claimant did not have reasonable assurance, you MUST set up an investigation
by creating a case on the work separation.
- Reporting to the Claims Office.
Issue: whether the claimant reported to the claims
office as instructed.
Law Cite: Section 207.021(a)(1) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual has registered for work at an employment office
and has continued to report to the employment office as required by rules
adopted by the Commission.
Questions:
When did the claimant file his initial claim for benefits?
Was the claimant told at the time he filed his claim that he might have
to report to the claims office?
Was he told what might happen if he didn't report as instructed? What was
he told?
Did he receive in the mail a booklet from the TWC entitled "Unemployment
Insurance Benefits Information"?
Did the claimant read that booklet?
What did the booklet say about the claimant being available to TWC? (Different
sections in the booklet address this issue. You can find the booklet on
the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and admit those pages
into evidence during the hearing.)
Did the claimant receive a letter from the TWC dated _________ asking him
to contact the claims office?
If yes, when did the claimant receive the letter?
What did the letter say?
Did he contact the claims office?
If yes, when? To whom did he speak? What did they discuss?
If no, why not?
If the claimant did not receive the letter, was the address to which the
letter was mailed his correct mailing address? (You can check the CTAH screen
in the mainframe Benefits system (or Claimant Info in the Appeals Benefits
system) to see if the claimant filed any address changes. You may need to
send these screen print-outs to the parties prior to the hearing, and you
may need to admit them into evidence during the hearing.)
If the claimant moved, did he notify the TWC that he had moved? If yes,
when? If no, why not?
Was the claimant having any problems receiving his mail at that time? What
kinds of problems?
- Reporting -- Filing -- Filing -- Triplets.
Issue: whether the claimant reported to the claims
office as instructed and whether claims were filed in accordance with
the Regulations prescribed by the Commission.
Law Cite: Section 207.021(a)(2) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual has made a claim for a benefit under Section
208.001.
Section 208.001 of the Act provides, in part, that claims for benefits
shall be made in accordance with rules adopted by the Commission.
Section 207.021(a)(1) of the Act provides that an unemployed individual
is eligible to receive benefits for a benefit period if the individual
has registered for work at an employment office and has continued to report
to the employment office as required by rules adopted by the Commission.
IMPORTANT NOTES: The Triplets occur when a claimant
files claim certifications on Tele-Serv and answers one, or more, questions
with an answer that requires the Commission to get more information. For
example, if the claimant answers that he was unavailable for work, unable
to work, did not look for work, was separated from a job he had, was attending
school, or refused an offer of work during the benefit week, the Commission
will need to investigate. When that happens, Tele-Serv gives the claimant
an instruction to contact his call center within 7 days to provide further
information. Claimants filing on line would get a written instruction.
If the claimant does not contact the Commission within the 7 day time
period, the computer system automatically creates The Triplets.
The Reporting determination rules the claimant did not report to the
Commission to provide necessary information, and it imposes an open period
ineligibility that may or may not have been closed by the time of the
hearing. The Filing determinations rule the claim certifications are incomplete
because the claimant did not provide the necessary information so they
could be completed and accepted. These Filing determinations are different
from the standard Filing determinations and use different canned statements,
but they use the same section of law. They impose a close period ineligibility
for each claim week.
Often times, the claimant will contact the tele-center after he receives
the determinations. At that time the claims examiner can simply close
the Reporting determination and leave the Filing determinations alone
OR the claims examiner can reverse the three determinations. If the reversals
are done within fourteen days from the date the determinations were mailed,
they are valid. If they are done outside the fourteen day time period,
they are not valid and have to be set aside.
When prepping these types of cases, you will need to see what the claimant
answered during the applicable Tele-Serv session so you will know why
he was asked to contact the claims office. First determine which weeks
were affected by the determinations. To look at the answers in the mainframe
Benefits system, you will need to know the Saturday ending dates of the
weeks in question. These ending dates are referred to as the Benefit Week
Ending date, or the BWE. Once you know all the BWE dates, go to the BPRD
screen, type an "I" in the action field, type in the claimant's
SSN, type in the BWE date in the BWE field, and press "enter".
This will call up the questions and answers for that particular benefit
week. As you read the questions and answers, you'll be able to see which
questions were holding up the claim. As you will see, only parts of the
questions are shown on this screen, but to see the entire question, you
would place your cursor somewhere on the question you want to see and
pPress the F2 key. A pop-up window will appear showing the complete question;
to escape from the pop-up box, you'd press the F3 key. To see the answers
for any other affected CCs, you'd type in the next BWE date, and press
enter.
It is very helpful to print these screens in advance of the hearing and
mail them to the parties so you can discuss them, if necessary, and admit
them into evidence during the hearing.
If you do not see a problem with any answers, check the claim for the
previous week and you will see it probably had earnings. If a claimant
reports earnings the previous week, it prompts a call-in instruction as
there could be a work separation issue.
Questions:
When did the claimant file his initial claim for benefits?
Was the claimant told at the time he filed his claim that he might have
to report to the claims office?
Was he told what might happen if he didn't report as instructed? What
was he told?
Did he receive in the mail a booklet from the TWC entitled "Unemployment
Insurance Benefits Information"?
Did the claimant read that booklet?
What did the booklet say about the claimant being available to TWC? (Different
sections in the booklet address this issue. You can find the booklet on
the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of the applicable pages and send to the claimant
(and the employer if one was notified of the hearing) and admit the pages
into evidence during the hearing.)
At this point, begin discussing the print outs of the CCs in question
and admit them into evidence. Specifically ask the claimant if those are
the answers he provided on that claim, and ask him about any of the questionable
answers he gave. (You don't need to take a lot of testimony on, for example,
why the claimant didn't look for work during that claim week, but take
enough testimony in case the tele-center has not adjudicated the issue
and you need to create a case for someone there to investigate.)
After the claimant had answered all the questions for the claim week,
had the system instructed the claimant to call the tele-center?
Did the claimant hear and understand instructions?
Did the claimant read and understand the instructions? (if filing on-line)
Did the system tell him he needed to contact the claims office?
Was he given a number to call?
What number?
Was he given a deadline date to call?
What was the deadline date?
Was he told what would happen if he did not call as instructed?
What was he told would happen?
Did the claimant call the claims office?
If no, why not?
If yes, when? To whom did he speak? What did they discuss? (Check the
system to see when the claimant actually talked to someone. If his testimony
conflicts with the date of the statement in the system, you will need
to admit that statement as evidence and ask the claimant about the conflict
in the dates. Remember to ask the parties for objections before you admit
the statement and to obtain waiver from them if you haven't sent the statement
to them for the hearing.)
(For these types of cases, you will need to make arrangements in advance
of the hearing for someone from our UI Support Services Department to
provide testimony during the hearing about what the Tele-Serv system is
supposed to do if a questionable answer is given. The following questions
should be directed toward the UIPSS witness.)
Could you please look at the claimant's answers for BWE ________? (You
would've already admitted these print-outs during the claimant's testimony;
the UISS representative can look at the claim responses on her own computer
screen.)
Can you tell me what, if anything, the Tele-Serv system would have done
with this claim? (At this point, the witness would tell you which answer(s)
would have resulted in Tele-Serv instructing the claimant to contact the
claims office and how long the claimant would have had to contact the
claims office.)
Why would Tele-Serv have instructed the claimant to call the claims office?
Did the claimant call by the deadline date?
Has he ever called? If yes, when?
The Tele-serv script and filing instructions are available if needed.
The script explains what happens depending on the answers to the questions.
A copy of the script can be sent to the claimant and entered into evidence
if needed. The claimant's answers to the questions caused the claimant
to be instructed to contact the Tele-center.
The filing issue relates to whether the claimant properly furnished the
needed information to the claims department so the two claims could be
completed and accepted. While the claims representative has the authority
to change incorrect answers, complete, and accept the claims, the Hearing
Officer does not have the authority to complete and accept claims. The
claimant is to furnish the information to a claims representative, not
the Hearing Officer. The Hearing Officer should not base the filing decision
on how the questions were answered, but rather whether the claimant furnished
the needed information to the claims department. The Hearing Officer should
not attempt to adjudicate an issue that relates to the claimant's answers.
If the claimant never contacted the claims department and never discussed
the two claims with them, then the claimant has not filed the claims in
accordance with Commission Rules as required by Commission Rule 20. See
Appeal No. 257-CA-76 in AA 160.30.
However, in some cases, the claimant may have contacted the Tele-center,
but the claims representative failed to remove the contact request. If
they fail to remove the contact request, the ineligibilities will be issued.
Should the claimant prove that he did, in fact, contact the claims representative
before the deadline, then the two filing ineligibilities should be reversed.
The reporting issue should be treated separately. The Hearing Officer
should take testimony as to whether the claimant reported as instructed,
and if not, why the claimant failed to report. According to Appeal No.
3027-CF-76 in AA 160.30, the ineligibility may be reversed if the claimant
had a "reasonable excuse" for failure to report. If the reporting
ineligibility has never been closed and the claimant appears for the hearing,
the ineligibility should be closed as of the Saturday of that week. If
the Hearing Officer thinks there is some continuing issue that needs to
be adjudicated, then a case should be created.
- Requalification.
Issue: whether the claimant has satisfied the requalification
requirements of the Act by returning to employment and working at least
six weeks or earned wages equal to six times his weekly benefit amount.
Law Cite: Section 207.044 of the Act provides that
an individual who was discharged for misconduct connected with the individual's
last work is disqualified for benefits until the individual has returned
to employment and worked for six weeks or earned wages equal to six times
the individual's benefit amount.
Section 207.045 of the Act provides that an individual who left the individual's
last work voluntarily without good cause connected with the work is disqualified
until the individual has returned to employment and worked for six weeks
or earned wages equal to six times the individual's benefit amount, unless
the individual left work to move with a spouse from the area where the individual
worked. In that case, the claimant shall be disqualified for not less than
six nor more than twenty-five benefit periods following the filing of a
valid claim, as determined by the Commission according to the circumstances
in each case. No individual may be disqualified because the individual left
work because of a medically verified illness of the claimant or claimant's
minor child, injury, disability, or pregnancy if the individual is available
for work. A medically verified illness of a minor child prevents disqualification
under this section only if reasonable alternative care was not available
to the child and the employer refused to allow the individual a reasonable
amount of time off during the illness. Military personnel who do not reenlist
may not be considered to have left work voluntarily without good cause connected
with the work. An individual who is partially unemployed and who resigns
that employment to accept other employment that the individual reasonably
believes will increase the individual's weekly wage is not disqualified
for benefits under this section.
Effective September 1, 1997, Section 207.051 of the Act provides that an
individual is disqualified for benefits after the sale of: (1) a corporation
and the individual is an officer of the corporation; a majority or controlling
shareholder in the corporation; and involved in the sale of the corporation;
(2) a limited or general partnership and the individual is a limited or
general partner who is involved in the sale of the partnership; or (3) a
sole proprietorship and the individual is the proprietor who sells the business.
The disqualification will continue until the individual has returned to
employment and has worked for six (6) weeks or earned wages equal to six
(6) times the individual's benefit amount.
Section 207.021(a)(6) of the Act provides that an unemployed individual
is eligible to receive benefits for a benefit period if the individual earned
wages in an amount equal to not less than six times the individual's benefit
amount after the beginning date of the individual's most recent prior benefit
year.
Section 207.053(a) of the Act provides that an individual is disqualified
for a benefit if the individual (1) left the individual's last work voluntarily
rather than provide services included within the course and scope of the
individual's employment to an individual infected with a communicable disease;
or (2) was discharged from the individual's last work because the individual
refused to provide services included within the course and scope of the
individual's employment to an individual infected with a communicable disease.
Section 207.053(b) of the Act provides that an individual is not disqualified
under this section unless the person for whom the individual last worked
made available to the individual the facilities, equipment, training, and
supplies necessary to permit the individual to take reasonable precautions
to preclude the infection of the individual with the communicable disease.
Section 207.053(c) of the Act provides that the disqualification for benefits
under this section continues unttil the individual has returned to employment
and (1) worked for six weeks; or (2) earned wages equal to six times the
individual's weekly benefit amount.
Commission Rule 20, 40 TAC 815.20, provides that employment used to requalify
under Section 207 of the Act shall mean "employment" as defined by the Act.
Questions:
When did the claimant file his claim for benefits?
Since filing his claim, has the claimant worked anywhere else?
Where has he worked?
When did he begin working there?
What did he do there?
How long did he work there?
Is he still currently working there? (If not, why is he no longer working
there? You may need to create a case for the tele-center to adjudicate if
the claimant is no longer working there.)
How much was the claimant paid?
Did the claimant report these wages to the TWC when he filed his continued
claims? If he did not, why not? Was he aware he was supposed to report his
wages on his continued claims? (If the claimant did not report the wages
and was filing CCs during the time he worked, you may need to send an e-mail
to our Fraud Prevention, Collections and Detection Department to investigate
the potential fraud.)
What is the claimant's weekly benefit amount? (You can obtain this information
by looking at the MDCW screen in the Benefits system or by looking at the
Monetary tab in the Appeals Benefits system. You might want to send a print-out
of one of these screens to the claimant prior to the hearing and admit it
as evidence during the hearing if the claimant does not remember his weekly
benefit amount since you'll need to make a fact-finding about the WBA in
your decision.)
Has the claimant submitted proof of these earnings? (The claimant's testimony
is not enough to prove he has earned enough to requalify. He must submit
some documentary evidence that he earned the wages so you may have to continue
the hearing if he hasn't submitted any evidence but has some he can send
you.)
Check the EMF to determine whether employer has been determined to be liable.
If it appears the employer should be covered under the Act, and liability
has not been established, an e-mail should be sent to the tax department
to investigate.
- Rule 16 Good Cause to Reopen.
Issue: whether the petitioner had good cause
for failing to appear at each previously scheduled hearing.
Law Cite: Commission Rule 16, 40 TAC 815.16,
provides, in part, that if a party to an appeal shall fail to appear at
the time and place designated for the hearing, the Appeal Tribunal may
hear and record the evidence of the party present and the witnesses, if
any, and shall proceed to decide the appeal on the basis of the record.
Any party to the appeal who fails to appear at a hearing may, within fourteen
days of the date the decision is mailed, petition for a new hearing before
the Appeal Tribunal. Such petition shall be granted if it appears to the
Appeal Tribunal that the petitioner showed good cause for his failure
to appear at the hearing. In the event that an appeal to the Commission
is filed before the filing of the petition for rehearing by the Appeal
Tribunal, such appeal shall be referred to the Commission for review.
Questions:
State to what address the hearing notice was mailed to the petitioner.
(The prior hearing notice will be in the file. Check the front page of
the hearing notice and the back of page 1 to find all addresses to which
the notice was mailed. Admit the hearing notice into evidence during the
hearing.)
Was that address the party's correct mailing address at the time the
hearing notice was mailed?
If yes, is that still the correct mailing address?
If no, what was the correct mailing address at the time? Had the party
notified the TWC that the address had changed? When? How? (If the claimant
is the petitioner, you will need to check the CTAH screen in the mainframe
Benefits system (or Claimant Info in the Appeals Benefits system) during
your pre-hearing review of the case to see if the claimant filed any address
changes. If the employer is the petitioner, you will need to check the
CMDA screen in the mainframe Benefits system to see if the employer had
a designated address for claims filing purposes. You will also need to
check the employer's protest if it's in the file to see if the employer
wrote in the address where it wanted any determinations to be mailed.
You may need to send these screen print-outs to the parties for the hearing,
and you may need to admit into evidence the print-outs and the employer's
protest during the hearing.)
Did the party normally receive mail at the address to which the hearing
notice was mailed?
Did the party receive the hearing notice?
If no, was the party having any trouble receiving its mail during that
time? What kind of trouble? If the party didn't receive the notice, how
did it learn that it had missed a hearing?
If yes, did the party receive the notice at the address to which it was
mailed? If the party received the notice at a different address, at what
address was it received?
When did the party receive the hearing notice? (Did the party receive
it prior to the date of the hearing?)
Did the party read the hearing notice?
Did the party understand it?
When did the party think the hearing would be conducted?
Did the party participate in that hearing?
Why not?
Could anyone else have participated in the hearing on the party's behalf?
Was it possible for anyone else with firsthand knowledge to have appeared?
If yes, why didn't they appear?
Could the party have rescheduled whatever prevented it from participating?
Did the party contact the hearing officer in advance to let him/her know
the party would not be participating?
Would the party have appeared if it could have?
Note: Good cause to reopen under Rule 16 is not a jurisdictional issue
and should not be addressed as such in the hearing or in the written decision.
- Work Search Availability.
Issue: whether the claimant was available for full-time
work.
Law Cite: Section 207.021(a)(4) of the Act provides
that an unemployed individual is eligible to receive benefits for a benefit
period if the individual is available for work.
Questions:
When did the claimant file his initial claim for benefits?
Was he told at that time that he would be required to search for work?
Was he told what might happen if he didn't look for work? What was he told?
Did he receive in the mail a booklet from the TWC entitled "Unemployment
Insurance Benefits Information"?
When did he receive it? (You may need to check to see when the booklet
was mailed to the claimant and to what address it was mailed. You can find
this information by checking the CMCL screen in the mainframe Benefits system
or by checking the Correspondence tab in the Appeals Benefits system.)
Did the claimant read that booklet?
What did the booklet say about the claimant looking for work?
What did the booklet say would happen if the claimant did not look for work?
(Different sections in the booklet address this issue. You can find the
booklet on the agency's Web site at www.twc.state.tx.us/ui/bnfts/bi-99.pdf.
You may need to make copies of those pages, send them to the claimant (and
the employer if one was notified of the hearing), and admit them into evidence
during the hearing.)
How was the claimant to look for work (ex. - resume, direct contact, phone)?
How many contacts was he supposed to make per week? (You can find this information
by looking at the CTWS screen in the mainframe Benefits system. You might
need to print this screen off, send to the parties, and admit it into evidence
during the hearing.)
During the period of ______ through ______, how many contacts did the claimant
make? (Go through each claim week at issue.)
If he made none, why didn't he make any contacts?
What type of work was he qualified to perform?
What were his preferred hours and pay?
What type of work was he looking for (for each claim week)?
For each claim week, you will need to have the claimant provide testimony
about:
- who he contacted (each company and the person he actually spoke to)
- each company's address
- when he contacted each company
- how he contacted each company
- what type of work he was seeking from each employer
- if he was qualified for the position the employer had
- what the results of each contact were
- whether he filed an application with or submitted his resume to each employer.
Could the claimant have accepted full-time work for each week had an offer
to him been made?
How could a potential employer have contacted the claimant?
If claimant is claiming he was exempt from work search requirements, get
specific information (If he had found a job, did he have a specific starting
date).
- Workers' Compensation.
Issue: whether the claimant is receiving or has
received workers' compensation.
Law Cite: Section 207.049(a)(2) of the Act provides
that an individual is disqualified for benefits for any benefit period for
which the individual receives remuneration in the form of compensation for
temporary partial disability, temporary total disability, or total and permanent
disability under a state workers' compensation law or a similar law of the
United States.
Questions:
When did the claimant file his claim for benefits?
Is the claimant currently or has he been in the past disabled?
When did his disability begin?
How did it happen?
What was the type of injury suffered?
Was the claimant under a doctor's care?
Was the claimant's separation from his last work caused by a disability
that was incurred on the job?
Has the claimant received any workers' compensation benefits?
When did the benefits start? How long did the claimant receive them?
Is the claimant still receiving them?
How much does the claimant receive?
Does the claimant receive the benefits per month or per week?
How long will the claimant continue to receive them?
What type of disability does the claimant have/what type did he have?
Changes made in the Texas Workers' Compensation Act (Act) effective January
1, 1991 redefined benefits payable under that Act and replaced the former
Industrial Accident Board with the Texas Workers' Compensation (TWCC). This
legislation designated four types of income benefits available under the
Act. They are as follows:
Temporary Income Benefits (TIBs), total and partial temporary disability
Impairment Income Benefits (IIBs), permanent partial disability
Supplement Income Benefits (SIBs), temporary partial disability
Lifetime Income Benefits (LIBs), total, permanent disability
Since terminology has changed, it no longer matches the terminology in the
TUCA. However, of these, only the Impairment Income Benefits are NOT disqualifying.
- Family Violence Separation.
Issue: whether the claimant quit due to family
violence or stalking.
Law Cite: Section 207.045(d)(5) of the Act provides
an individdual shall not be disqualified if the individual left work because
of an involuntary separation as described by Section 207.046
Section 207.046. INVOLUNTARY SEPARATION. (a) An individual is not disqualified
for benefits under this subsection if:
- the work-related reason for the individual's separation from employment
was urgent, compelling, and necessary so as to make the separation involuntary; or
- the individual leaves the workplace to protect the individual from family violence
or stalking as evidenced by:
(A) an active or recently issued protective order documenting family violence
against, or the stalking of, the employee or the potential for family violence
against, or the stalking of, the employee;
(B) a police record documenting family violence against, or the stalking of, the
employee; or
(C) a physician's statement or other medical documentation that describes the family violence against
the employee that:
(i) is recorded in any form or medium that identifies the employee as the patient; and
(ii) relates to the history, diagnosis, treatment, or prognosis of the patient; or
- the individual leaves the workplace to care for the individual's terminally ill spouse as evidenced by a physician's statement or other medical documentation, but only if no reasonable, alternative care was available.
(b) Except as provided by law, evidence regarding an employee described by Subsection (a)(2) may not be disclosed to any person without the consent of the employee.
(c) In this section:
(1) "Family Violence" has the meaning assigned by Section 71.004, Family Code.
(2) "Stalking" means conduct described by Section 42.072, Penal Code.
Questions:
What was the reason the claimant gave the employer for quitting?
What was the situation that caused the claimant to quit?
Does the claimant have a recently protective order?
Is there a police report?
Is there a doctor's statement?
Note: the claimant must present all three items to prove the claimant left due to family violence or stalking.
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