Kansas employers are often frustrated about the seeming ease with which employees qualify for unemployment benefits, even when they are fired for bad behavior, or when they quit over what the employer perceives as a trifle. Substitute House Bill 2105, signed by Governor Brownback on April 16, amends numerous provisions of the employment security statutes, including definitional sections that determine disqualification for benefits. The new law will go into effect on July 1, 2013. Among the changes, the new legislation: (1) increases the taxable wage base for contributions made by employers; (2) links to the state’s unemployment rate the number of weeks a person is eligible for unemployment benefits; (3) revises numerous definitions, including “good cause,” “misconduct,” and “gross misconduct”; and (4) strengthens existing provisions related to drug and alcohol testing and terminations resulting from positive tests.
The definitional changes will make it more difficult for persons to qualify for unemployment benefits under certain circumstances. Under existing law, an individual who voluntarily leaves employment without good cause is disqualified for benefits. What is and what isn't good cause is often a subject of great dispute. The new law defines “good cause” to mean a cause of such gravity that a reasonable, non-supersensitive person, exercising ordinary common sense, would leave employment. Good cause also requires a showing of good faith of the individual leaving work. Twelve exceptions in the law prevent a person from being disqualified for benefits, however. The seventh exception, pertaining to harassment, specifies the harassment would impel the average worker to give up employment. The tenth exception, pertaining to violation of the work agreement by the employer, requires the violation to be substantial, and demotion based on performance does not constitute a violation of a work agreement.
An employee fired for misconduct is disqualified from unemployment benefits until the person is reemployed and has earnings equal to three times the weekly benefit amount. An employee fired for gross misconduct is disqualified until the person is reemployed and has earnings equal to eight times the weekly benefit amount. The new law revises the definition of “misconduct” to include violation of a company rule if the employee knew or had reason to know the rule, the rule was lawful and reasonably related to the job, and the rule was fairly and consistently enforced. Misconduct also includes tardiness and leaving work early without prior permission. The definition of “gross misconduct” is revised to include theft, fraud, intentional damage to property, intentional infliction of personal injury, or conduct that results in a felony. The new law also includes an employee’s suspension for misconduct as grounds for disqualification for the duration of the separation from employment.
The new law reorganizes the existing provisions pertaining to alcohol and drug use on the job and includes four substantive changes:
- The reason for testing changes from probable cause on the part of the employer to reasonable suspicion;
- Alcohol or drug use is reclassified from misconduct to gross misconduct;
- An individual tampering with a chemical test is conclusive evidence of gross misconduct; and
- An alternative definition for “positive breath test” includes reference to test levels listed in federal drug test regulations, if applicable.
In addition, if a person seeking benefits makes a false statement or misrepresentation, the bill lengthens the disqualification period from one year to five years. Employers will no doubt find these changes welcome.