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Hearing Forum:
by: Lisa Grosz, UCM Legal Advisor
Attendance Point Policies
Within the past two years the trend in Employer Attendance Policies have marked a very technical turn. One must master the mathematical task adding of points, removing of points and the meanings behind a marinade of definitions.
Is a Point System Better than the more Traditional Standard Attendance Policy:?
In short, the answer is yes. After representing over 30 hearings for attendance whereas a point system was used, an employer has a greater chance of receiving a propitious ruling. The state has always looked for three basic actions from employers when meeting the burden of proof for a termination meeting the definition of “misconduct.” A points system seems to meet these requirements more definitively than the more traditional “3 warnings in a twelve- month period” policy.
UI Law is Written so that misconduct is defined by a willful (employee must know) violation of an attendance policy. This means a Written Attendance Policy:
Every state looks for a definitive policy that is clearly outlined. This is where I feel the point system really benefits the employer. A point system clearly spells out how many points within a rolling year will equate to termination. Let’s use 10 points in the 12-month period as the maximum number allowed before termination. The twelve-month period usually starts once the employee is hired. For example: Tardiness without a call to a manager one hour before a shift carries 1 point; tardiness with a proper notification .5.
Absence due to illness with proper call off 1, without 2. Absence without any notification 3.
No absences within a 30- day period equates to points being added back in.
As you can see this is extensive, but decisive. This is the main reason I feel an employer has a greater chance of winning an Unemployment Claim. Merely having a policy that states three absences may result in a warning, so and so forth. This system allows for points to be dropped off once a period of no absences is obtained. A points system leaves little room for an employee to claim they could not avoid the termination.
The Employee must sign a page of acknowledgement of receipt:
Whether an email electronic signature or a pen and paper signature, the importance of a signature on the policy is a primary threshold needed to win an attendance termination claim. If a policy is updated, a new signature of receipt of policy is necessary.
Follow a rule of only Written Warnings issued:
If your points systems outline that a written warning will be issued after 4 points are assigned, then a written warning must be issued and signed by the manager issuing the warning with the employee.
*I have a very important and pertinent interjection regarding this point. My most recent hearing involved this exact example. The employer witness at the hearing was an HR representative. The warning and subsequent termination was reviewed by a manager. The decision to issue the warning was not made by this manager. The claimant stated the manager who sat down with the her made comments that the HR representative could neither affirm nor deny. When at all possible have the person, who makes the decision to terminate or warn an employee be the same person issuing the warning. This means signing the warning and/or termination notice. Another signature can be added for a manager but including the decision maker will allow the employer to have flexibility on a witness of firsthand knowledge.
Winning an Unemployment Claim for a termination due to attendance requires written warnings that do not deviate from the written policy and warnings that are signed by all parties involved. The warning needs to include verbiage outlining what the next step in the progressive discipline policy will be.
My Take Away:
Although the point systems at first appearance seems cumbersome and excessive, I believe it to be the most concise systematic policy that I have seen yet. It is fair to both employers and employees. The states acknowledge that violation of such an extensively outlined policy amounts to misconduct in my opinion because it offers chances to redeem points not just receive negative points.
If you are interested in amending your Attendance Policy, UCM offers handbook review and writing “a la carte” services.
State Changes:
The following are state changes. Please take note.
Arizona
The Arizona Department of Economic Security recently amended Sec. 23-672, decreasing the state’s appeals board (a panel that reviews the record and decision from an administrative hearing) from four members to three. The change also provides that a decision by the appeals board is controlling if it is issued by at least two concurring members.
A copy of the entire amendment can be found at
http://www.azleg.gov/legtext/52leg/2r/laws/0185.htm.
Idaho
In a press release dated August 25, 2016, the Idaho Department of Labor (DOL) warns of a recently discovered scam to solicit personal information from UI claimants and other parties.
Emails are being sent from info@unemployment-assist.com and contain a subject line that contains one of the following:
ID Eligibility Requirement 1: Must be Available for Work, or
Verification Required: 2nd Request
The Idaho DOL reminds claimants that the agency does not require email verification of a UI claim, nor does it utilize a third-party to contact claimants. They advise UI claimants to never click on such an email and to delete it immediately.
The press release can be found at http://labor.idaho.gov/news/NewsReleases/tabid/1953/ctl/PressRelease/mid/3872/itemid/3014/Default.aspx.
Missouri
There has been a recent development related to HB-150, which included a reduction in the UI benefit week maximum from 20 weeks to a sliding scale ranging from 13-20 weeks based on the statewide unemployment rate.
As background, after HB-150 was passed by the Missouri legislature in April 2015, Governor Jay Nixon vetoed the measure on May 5th of that year. The House overrode the Governor’s veto on May 12th, but the Senate did not override the veto until September 2015. The provisions of HB-150 thus became effective in January 2016.
However, in July 2016 the Missouri Supreme Court ruled that Senate failed to override the Governor Nixon’s veto in a timely fashion, and therefore it was upheld. This reversed the changes contained in HR-150, and UI benefits returned to the 20-week maximum as it had been under prior law.
It’s not clear how the Missouri Division of Employment Security will address any UI benefit decisions issued between January 1, 2016 and the Missouri Supreme Court decision that upheld Governor Nixon’s veto.
Further details can be found at: http://www.house.mo.gov/billsummary.aspx?bill=HB150&year=2015&code=R.
Revised Weekly Benefit Amounts
Several states have recently modified their weekly benefit amounts (WBAs):
Connecticut: Effective October 2, 2016, the minimum WBA will be $15 and the maximum will be $616.
Massachusetts: Effective October 2, 2016, the minimum WBA will be $14 and the maximum will be $742.
North Dakota: Effective July 3, 2016, the minimum WBA will be $43 and the maximum will be $630.
West Virginia: Effective July 3, 2016, the minimum WBA will be $24 and the maximum will be $424.
Wyoming: Effective July 3, 2016, the minimum WBA will be $33 and the maximum will be $489.