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Talkin' Baseball and Unemployment

July 1 marks the midway point of the Major League Baseball season. July 1 is also the day significant changes to the Kansas unemployment law take effect. These amendments are mostly favorable to employers. Among other things, the changes make it more difficult for employees to qualify for benefits when they are fired for attendance, drug or alcohol use, or violating a workplace rule or policy. It’s also now harder for employees to obtain benefits when they voluntarily quit. Foulston Siefkin lawyer Forrest Rhodes wrote a great baseball-themed article about the unemployment law amendments and how they “level the playing field.” We are sharing it with our blog readers below.

Amendments Help to Level the Unemployment Playing Field

By Forrest Rhodes
Few situations drive an HR professional crazier than terminating an employee for legitimate policy violations and then seeing the employee get awarded unemployment benefits.  Whether driven by the volume of benefits paid out over the last several years or perhaps simply to level the playing field, in April 2013 the Kansas Legislature made numerous amendments to the employment security (more commonly known as unemployment) laws that should help to reduce how often benefits are paid in these situations. 
The amendments, which take effect on July 1, 2013, are largely favorable to employers.  In several situations the amendments ease the standard required to justify a denial of unemployment benefits when an employee is fired.  In addition, the law has been clarified with respect to voluntary termination situations to reduce the incidents in which an employee can quit and obtain benefits. 
Strike Three … You’re Out
In the context of involuntary terminations, the amendments retain the focus on “misconduct” as the threshold for disqualification from benefits.  However, the standard for what constitutes misconduct has expanded in several areas. 
Rule/Policy Violation
If an employee is terminated for a rule/policy violation, the employee will be ineligible for benefits if the employee (1) knew or should have known of the rule, (2) the rule was lawfully and reasonably related to the job, and (3) the rule was fairly and consistently enforced. 
Alcohol/Drug Use
A positive alcohol or drug test is conclusive evidence of gross misconduct as long as the test was based on a reasonable suspicion that the employee used or was impaired by alcohol or drugs.  The law previously required the test to be based on probable cause.  Now, positive tests that are required by law or an employer’s policy (that the employee is aware of), such as random testing or in a post-accident situation, can establish conclusive evidence of gross misconduct.
The new law expands the disqualification for attendance infractions to also include tardiness.  To qualify for this provision, the employer must show (1) that the employee was aware of the attendance expectations, (2) the employer gave notice that future absence or tardiness may result in discharge, and (3) that the employee’s absences or tardiness were without good cause.  In this context, absence or tardiness resulting from physician-documented health issues would constitute good cause. 
The law also expands the disqualification provision in the area of absence notification.  In addition to an employee’s failure to notify an employer of an absence, the amendments added an employee’s unauthorized early departure from work.  Now, termination in either situation should result in a denial of unemployment benefits if the employer can demonstrate the three elements above.
Ball Four … Batter Walks
The amendments also sought to further clarify when an employee can voluntarily quit and still receive benefits.  From an overarching perspective, the amendments impose a reasonableness requirement in voluntary termination cases.  Benefits have historically been denied when an employee voluntarily quits without “good cause,” but the law did not previously define this term.  The law now requires a showing that a reasonable, but not supersensitive, employee using ordinary common sense would have quit under the same circumstances.  In addition, the employee’s decision to quit must have been made in subjective good faith to avoid disqualification. 
Within the general “good cause” framework, the law has defined twelve situations in which a voluntary quit will not result in disqualification.  Most of these aren’t changing; however, the amendments further define one of these situations – harassment.  In that scenario, an employee must show not only that the harassment was unwelcome and the employer was aware of it (existing requirements) but also that an “average worker” would feel compelled to quit under similar circumstances. 
Establishing strike zones
The amendments impact procedural issues as well, some of which include:
·         Starting in 2015, the wage base on which unemployment tax is computed will increase from $8,000 per employee to $12,000.  The base will increase again, from $12,000 to $14,000, in 2016. 
·         Subject to certain eligibility criteria, employers who do not have a negative account balance will be eligible for a 25% rate discount if all reports and contributions are made by January 31 of each year.
·         Starting in 2014, the maximum period an individual may draw unemployment benefits will vary between 16, 20, and 26 weeks, depending on the state’s average unemployment rate.  During periods of lower unemployment, the maximum benefit period will be less.  Previously all eligible individuals could draw benefits for up to 26 weeks. 
No stealing bases
If an employee falsifies statements or representations as part of the unemployment benefit application process, that individual will be disqualified from receiving unemployment benefits for five years.  Individuals were previously disqualified for only one year. 
Making sure you hit a homerun
While the amendments are a step in the right direction, documentation remains critical for employers to be able to successfully defend most unemployment claims.  When an employee is fired, it is generally the employer’s obligation to prove each of the elements supporting a termination for gross misconduct.  From the signature page of the company handbook that sets forth the policy at issue, to the signed discipline memo notifying the employee that future violations may result in discipline “up to and including termination,” being able to prove that the employee was aware of the policy or rule at issue is essential. 
Forrest Rhodes is an employment lawyer with the law firm Foulston Siefkin LLP.  You can contact Forrest at 316.291.9555 or frhodes@foulston.com.



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