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Presented By: David J. Freedman, EsquireBarley Snyder LLC126 East King StreetLancaster, PA 17602Tel: 717-399-1578Fax: 717-291-4660Email: [email protected]
Immigration• Public Works Employment Verification Act of
2012– Requires public works contractors and
subcontractors to use E-Verify.– Contractor must verify that it checked the status
of all new hires and that new hires are legal.– Applies to government contracts for construction,
reconstruction, demolition, alteration, or repair work (other than maintenance, when the total project cost exceeds $25,000.• Contracts paid for in any part by the Commonwealth or
any political subdivision, including county, city, borough, town, township, or school board.
• Senate Bill 1310:– Claimants’ benefits will be offset by part-time
earnings if earnings exceed 30% of benefit.
– Claimants must earn at least 49.5% of their base year earnings outside of highest grossing quarter in order to be eligible for benefits.• Previously, this number was 37%.
• Eshbach v. UCBR: Commonwealth Court held that where the employer discharges a claimant for absences which claimant reasonably believed were protected under the FMLA, employer cannot prove willful misconduct. – Claimant failed to report her absence for three consecutive
days. – Claimant testified that she did not think she needed to
report the absences because they were under approved FMLA leave.
– The leave involved taking care of her sick daughter who was due to give birth.
SUBSTANCE ABUSE ISSUES AND UNEMPLOYMENT COMPENSATION
• Benefits may be denied when claimant is terminated for failing to submit to and/or pass a drug or alcohol test.– Requires established substance abuse policy.
• May not violate a labor agreement.
• Policy should prohibit reporting to work with the presence of alcohol in one’s bodily systems, rather than being “under the influence”. – If policy is being “under the influence,” employer must prove actual
impairment of abilities due to substance abuse. • Employer must present testimony from the medical
review officer or custodian of drug test results – Report was made in the regular course of business;– Report was made at or near the time of event; and– Chain of custody.
• Always ask employee, and document what he/she told you.
RESIGNATIONS• A forced resignation is treated as a termination.
• Employer must demonstrate willful misconduct.• Termination must be imminent, mere possibility is not
sufficient. • If employee revokes his/her voluntary resignation
before the effective date, and the employer has not taken substantial steps to replace the employee, the employee is eligible for benefits.
• If the employee postpones the resignation and the employer accelerates the resignation to the original date, the employee can receive benefits between the original and the accelerated date ,if the employer has not taken substantial steps to replace the employee.
SEVERANCE PAY AND UNEMPLOYMENT COMPENSATION OFFSETS
• In June 2011, Senate Bill 1030 made significant changes to the way unemployment benefits are administered and calculated.
• Now, severance over $17,853 (40% of the “average annual wage” under the UC Law, so the exact number will change periodically) is offset from benefits on a weekly basis.• Does not affect vacation or retirement pay.
OFFSETS• Practice Tip:– The cost of severance agreements may go up as
plaintiffs’ lawyers filter into any settlement the offset. The Commonwealth’s gain may be at the employer’s expense.
– Do not state or suggest that severance will not affect unemployment. It may.
– Consider including in your standard severance agreement a statement that the denial or reduction in unemployment will have no effect on the general release.
PARTIAL BENEFITS• Employees can receive partial benefits if (1) their regular
hours are reduced because of lack of work, (2) if they are terminated and get a job with fewer hours, and (3) the employee is separated from his/her job but has part-time employment with another employer.
• An employee can earn up to 30% of the weekly benefit rate without a reduction in benefits. This is known as the partial benefit credit. For example, if the benefit rate is $200, the partial benefit credit is $60 ($200 x .3). If the employee earns $100 during a benefit claim week, the weekly benefit would be reduced to $160 ($200 + partial benefit credit of $60 = $260 - $100 = $160).
• Relief from Charges forms should be filed immediately, even if you believe the Claimant will be ineligible.– Employee has ability to “purge” eligibility
determination with future employer, and you would be charged if the employee later becomes eligible and you did not file for relief.
– Relief from charges will only apply to periods after the forms are filed.
Senate Bill 1030• Claimants must prove they are actively
searching for work by registering for the PA CareerLink system, posting a resume, and applying for similar positions within a 45-minute commuting distance.
• Beginning in 2015, claimants eligible for one week of unemployment for every week they have worked, up to 26.
Duty Misconduct• Maskerines, Petitioner v. Unemployment Compensation
Board of Review (Commonwealth Court-January 3, 2011): Employee admitted to possession of marijuana off-duty. Employer had strict “no drugs” work rule of which the employee was aware, and the employee was under a “last-chance agreement” with respect to the no drugs policy. The Court affirmed the denial of eligibility on grounds of “willful misconduct” and held that the employer did not need to show that the drugs affected the workplace.
RECENT DECISIONS OF NOTE-PLEADING NO CONTEST TO CRIMINAL CHARGES
• Green v. Unemployment Compensation Board of Review (Commonwealth Court: July 13, 2011): Employee pled nolo contendere (no contest) to endangering the welfare of a child in connection with alleged sexual activity. • Plea establishes that he engaged in criminal conduct.• But Board reversed because employer failed to prove
how conduct related to his job. • Employee deemed eligible.
• Osborne Assocs. v. Unemployment Compensation Board of Review (Commonwealth Court-January 10, 2012): Who is an “employee” under the Unemployment Compensation Law.• Licensed cosmetologist who substituted at a salon on eight
occasions over the course of a year was determined by the Board to be an “employee.”
• Anyone paid wages is presumed to be an employee.• But employer can overcome presumption by proving
• (1) The claimant was free from control or direction; and • (2) the service was customarily performed by an independent contractor.
• The parties conceded that the second prong.• With respect to “control or direction,” the court held that, since
the claimant provided some of her own tools, worked on only eight occasions with no fixed schedule, and worked for other salons, she was an independent contractor.