TWC Claims:TWC Claims:How Do You Respond to How Do You Respond to

These?These?

24/7 Caregivers:24/7 Caregivers:How Do You Pay How Do You Pay

Overtime?Overtime?Robin Kennedy, Robin Kennedy, SPHRSPHR

My HR DepartmentMy HR Department

TWC Claims:TWC Claims:How Do You Respond to How Do You Respond to

These?These?

Types Of Work Types Of Work SeparationsSeparations

• Voluntary Work SeparationsVoluntary Work Separations

• Involuntary Work SeparationsInvoluntary Work Separations

• Effect of Voluntary or Involuntary Work Effect of Voluntary or Involuntary Work SeparationsSeparations

• Quit or Discharge - Close CasesQuit or Discharge - Close Cases

• Ambiguous NoticeAmbiguous Notice

• Resignation Without NoticeResignation Without Notice

Voluntary Work Voluntary Work SeparationSeparation

• Resignation with advance noticeResignation with advance notice - the - the employee gives the employer oral or written employee gives the employer oral or written notice of leaving in advance.notice of leaving in advance.

• RetirementRetirement - a special form of resignation with - a special form of resignation with advance notice that involves satisfying some advance notice that involves satisfying some kind of condition for leaving the company with kind of condition for leaving the company with one form or another of continued benefits.one form or another of continued benefits.

• Resignation without advance noticeResignation without advance notice, but , but with notice given at the time of the work with notice given at the time of the work separation - the employee does let the employer separation - the employee does let the employer know somehow that he or she will not be know somehow that he or she will not be returning to work.returning to work.

• Resignation without notice at allResignation without notice at all - this can - this can include walking off the job, job abandonment, include walking off the job, job abandonment, and failure to return to work after a period of and failure to return to work after a period of leave.leave.

Involuntary Work Involuntary Work SeparationSeparation

• Layoff, reduction in force, or downsizingLayoff, reduction in force, or downsizing - work - work separation due to economic inability to keep the separation due to economic inability to keep the employee on the payroll.employee on the payroll.

• Temporary job comes to an endTemporary job comes to an end - work separation - work separation due to work no longer being available because the job is due to work no longer being available because the job is simply finished.simply finished.

• Discharge or termination for misconduct or Discharge or termination for misconduct or "cause""cause" - work separation that the employer views as - work separation that the employer views as somehow being the claimant's fault.somehow being the claimant's fault.

• Resignation in lieu of dischargeResignation in lieu of discharge - same as - same as discharge, but the employer gives the employee the discharge, but the employer gives the employee the option of resigning as a face-saving option.option of resigning as a face-saving option.

• Forced retirementForced retirement - may be akin to an economic - may be akin to an economic layoff or a discharge for cause, but in this situation, the layoff or a discharge for cause, but in this situation, the employee is allowed to qualify under a retirement plan.employee is allowed to qualify under a retirement plan.

• "Mutual agreement""Mutual agreement" - in most cases, this form of work - in most cases, this form of work separation is viewed as involuntary, since it is usually separation is viewed as involuntary, since it is usually initiated or encouraged by the employer.initiated or encouraged by the employer.

Effect of Effect of Voluntary versus InvoluntaryVoluntary versus Involuntary

Voluntary work separation:Voluntary work separation:• Under the Texas Payday Law, an employee who leaves Under the Texas Payday Law, an employee who leaves

voluntarily must receive the final pay no later than the next voluntarily must receive the final pay no later than the next regularly scheduled payday following the work separation.regularly scheduled payday following the work separation.

• In an unemployment claim, the claimant who voluntarily left In an unemployment claim, the claimant who voluntarily left employment faces the burden of proving good cause employment faces the burden of proving good cause connected with the work for leaving the job.connected with the work for leaving the job.

• In many companies, employees who leave voluntarily receive In many companies, employees who leave voluntarily receive different benefits than those who are involuntarily separated, different benefits than those who are involuntarily separated, depending upon the terms of the company's benefit plan.depending upon the terms of the company's benefit plan.

Involuntary work separation:Involuntary work separation:• Under the Texas Payday Law, an employee who leaves Under the Texas Payday Law, an employee who leaves

involuntarily must be given the final pay no later than six involuntarily must be given the final pay no later than six calendar days following the last day of work.calendar days following the last day of work.

• In an unemployment claim, the employer that initiated the In an unemployment claim, the employer that initiated the work separation has the burden of proving misconduct work separation has the burden of proving misconduct connected with the work as the reason for discharge.connected with the work as the reason for discharge.

Quit or DischargeQuit or Discharge

• This determines who has the burden of This determines who has the burden of proof: It falls on the party that initiated proof: It falls on the party that initiated the work separation.the work separation.

• If the claimant was fired, the employer If the claimant was fired, the employer has the burden of proving has the burden of proving • That the discharge resulted from a specific act That the discharge resulted from a specific act

of misconduct connected with the work that of misconduct connected with the work that happened close in time to the discharge happened close in time to the discharge andand

• That the claimant either knew or should have That the claimant either knew or should have known she could be fired for such a reason.known she could be fired for such a reason.

Problem:Problem:Ambiguous NoticeAmbiguous Notice

Solution:Solution:Always Give ResponseAlways Give Response

In WritingIn Writing

Problem:Problem: Resignation Without NoticeResignation Without Notice

Solution:Solution:Always GetAlways Get

Resignation In WritingResignation In Writing

TWC Claims ProcessTWC Claims Process

• Initial ClaimInitial Claim• Initial DeterminationInitial Determination• Appeal TribunalAppeal Tribunal• Commission AppealCommission Appeal• Motion for RehearingMotion for Rehearing• Court AppealCourt Appeal

Initial ClaimInitial Claim

• Employer has 14 days from the date of Employer has 14 days from the date of the claim to respondthe claim to respond

• Respond to TWC byRespond to TWC by• MailMail• FaxFax• Hand-deliveryHand-delivery• TelephoneTelephone• Internet siteInternet site

Initial ClaimInitial Claim

• Be briefBe brief• Be factualBe factual• Be specificBe specific• Provide documentation if Provide documentation if

appropriate, i.e., copy of claimant’s appropriate, i.e., copy of claimant’s letter of resignationletter of resignation

Initial DeterminationInitial Determination

• If initial determination indicates that If initial determination indicates that claimant will draw benefits, an employer claimant will draw benefits, an employer can appeal with 14 calendar days of the can appeal with 14 calendar days of the date the ruling was maileddate the ruling was mailed

• If employer filed late response, employer If employer filed late response, employer should allege some problem outside its should allege some problem outside its power to control as the reason for not power to control as the reason for not protesting claim in timely mannerprotesting claim in timely manner

Appeal TribunalAppeal Tribunal

• Telephone hearing is normTelephone hearing is norm• Only firsthand testimony allowedOnly firsthand testimony allowed• Documentary evidence may be entered, but Documentary evidence may be entered, but

copies must have been sent ahead of time to copies must have been sent ahead of time to both Hearing Officer and Claimantboth Hearing Officer and Claimant

• Both parties may offerBoth parties may offer• Direct testimonyDirect testimony• Conduct cross-examinationConduct cross-examination• Make concluding statementsMake concluding statements

• Written decision within 1 week either affirming, Written decision within 1 week either affirming, reversing, or modifying the determinationreversing, or modifying the determination

Commission AppealCommission Appeal

• Must be done with 14 calendar Must be done with 14 calendar days of the date the hearing days of the date the hearing officer’s decision is mailedofficer’s decision is mailed

• This appeal is heard by the Appeal This appeal is heard by the Appeal Tribunal (3 member Commission)Tribunal (3 member Commission)

Motion for RehearingMotion for Rehearing

• Must be filed with 14 calendar days Must be filed with 14 calendar days of the date the original Commission of the date the original Commission decision is maileddecision is mailed

• Must offer new evidenceMust offer new evidence• Give a compelling reason why it Give a compelling reason why it

could not have been offered earlier, could not have been offered earlier, andand

• Show specifically how it could Show specifically how it could change the outcome of the casechange the outcome of the case

Court AppealCourt Appeal

• Losing party may file a court appeal Losing party may file a court appeal within 14 calendar dayswithin 14 calendar days

• No right to jury trialNo right to jury trial• Parties may put on their entire cases Parties may put on their entire cases

again for a judgeagain for a judge• Judge makes no finding of fact, but Judge makes no finding of fact, but

decides as a matter of law where decides as a matter of law where substantial evidence exists to uphold substantial evidence exists to uphold the TWC ruling.the TWC ruling.

• Court’s decision may be appealed as in Court’s decision may be appealed as in any other civil caseany other civil case

Evidence Needed for a UI Evidence Needed for a UI Claim and/or AppealClaim and/or Appeal

• Firsthand testimony from witnesses with direct, Firsthand testimony from witnesses with direct, personal knowledge of the events leading to the personal knowledge of the events leading to the claimant's work separation, i.e., "the ones who saw it claimant's work separation, i.e., "the ones who saw it happen".happen".

• Documentation of policies, warnings, complaints, Documentation of policies, warnings, complaints, attendance, timecards, pay-related records, or any attendance, timecards, pay-related records, or any other subjects relating to the claimant's work other subjects relating to the claimant's work separation.separation.

• In a discharge case, evidence relating to a specific act In a discharge case, evidence relating to a specific act of misconduct that happened close in time to the of misconduct that happened close in time to the discharge, i.e., the event that precipitated the discharge, i.e., the event that precipitated the discharge (the so-called "final incident"), as well as discharge (the so-called "final incident"), as well as evidence showing that the claimant either knew or evidence showing that the claimant either knew or should have known that discharge could occur; in a should have known that discharge could occur; in a resignation case, evidence relating to whatever resignation case, evidence relating to whatever motivated the claimant to resign.motivated the claimant to resign.

Mistakes That Are Mistakes That Are Easy To AvoidEasy To Avoid

Prior to ClaimPrior to Claim

• Terminating an employee in the heat of Terminating an employee in the heat of the momentthe moment

• Failing to discuss the problem with the Failing to discuss the problem with the employee prior to terminationemployee prior to termination

• Terminating an employee without Terminating an employee without reasonable warningreasonable warning

• Ignoring company procedures or prior Ignoring company procedures or prior warningswarnings

• Taking no action when employees Taking no action when employees complaincomplain

Terminating An Employee Terminating An Employee In The Heat Of The MomentIn The Heat Of The Moment

• Even in Texas, with employment-at-will Even in Texas, with employment-at-will doctrine, employers may pay a pricedoctrine, employers may pay a price

• Discharge must be proven to be a specific Discharge must be proven to be a specific act of misconduct connected with the act of misconduct connected with the work ANDwork AND

• Claimant either knew or should have Claimant either knew or should have know he could lose his job for this reasonknow he could lose his job for this reason

Failing to discuss the Failing to discuss the problem with the employee problem with the employee

prior to terminationprior to termination• TWC claim examiners and hearing officers TWC claim examiners and hearing officers

generally look with favor upon employers who generally look with favor upon employers who confront the soon-to-be-former employee with the confront the soon-to-be-former employee with the problem and let the employee try to explainproblem and let the employee try to explain

• avoids the related problem of giving a false reason avoids the related problem of giving a false reason for termination (almost always fatal to a case)for termination (almost always fatal to a case)

• there is always the possibility that the employee there is always the possibility that the employee will point out something that will make the will point out something that will make the employer realize that discharge might not be employer realize that discharge might not be appropriateappropriate

• gives the appearance of fairness, which is gives the appearance of fairness, which is important from a perception standpointimportant from a perception standpoint

TWC people processing the UI TWC people processing the UI claims are themselves claims are themselves employeesemployees, , not employers, and they generally not employers, and they generally

have a have a well-developed idea of what they well-developed idea of what they

consider fair and right. consider fair and right.

Good, bad, or indifferent, that is the Good, bad, or indifferent, that is the reality, so it should be taken into reality, so it should be taken into

account.account.

Terminating An Employee Terminating An Employee Without Reasonable Without Reasonable

WarningWarning• Test is whether a "reasonable employee" could Test is whether a "reasonable employee" could

have expected to be fired for the reason in have expected to be fired for the reason in question, the employer has to show that either question, the employer has to show that either the employee did something that was so bad, the employee did something that was so bad, he had to have known he would be fired without he had to have known he would be fired without prior warning, or prior warning, or

• That the employee had somehow been placed That the employee had somehow been placed on prior notice that he could lose his job for on prior notice that he could lose his job for such a reason. "Prior notice" would come from a such a reason. "Prior notice" would come from a policy expressly warning of discharge or from a policy expressly warning of discharge or from a (preferably written) warning to the effect that a (preferably written) warning to the effect that a certain action or lack of action would result in certain action or lack of action would result in dismissal.dismissal.

Ignoring Company Ignoring Company Procedures Or Prior Procedures Or Prior

WarningsWarnings • Employer must show that the claimant either know or Employer must show that the claimant either know or

should have known that her job was on the line for the should have known that her job was on the line for the reason in question. That will be impossible to show, for reason in question. That will be impossible to show, for example, if the employer fires the employee without giving example, if the employer fires the employee without giving the employee the benefit of progressing through whatever the employee the benefit of progressing through whatever progressive disciplinary process the company usually progressive disciplinary process the company usually follows.follows.

• Problem also shows up if an employee gets a written Problem also shows up if an employee gets a written warning stating that it is the "first written warning", and the warning stating that it is the "first written warning", and the list of further steps on the form shows a "second written list of further steps on the form shows a "second written warning" or "final warning", but the employee is fired for a warning" or "final warning", but the employee is fired for a subsequent offense without getting the (apparently subsequent offense without getting the (apparently promised) intermediate or final warningpromised) intermediate or final warning

• The point is that the employer should try its best to do The point is that the employer should try its best to do what it says it will do. If employees have been led to what it says it will do. If employees have been led to believe that certain steps will occur prior to termination, believe that certain steps will occur prior to termination, follow those steps, or else be prepared to lose the UI claim.follow those steps, or else be prepared to lose the UI claim.

Taking No Action When Taking No Action When Employees ComplainEmployees Complain

• Nothing stirs the sympathy of TWC examiners Nothing stirs the sympathy of TWC examiners and officers like the story of a claimant with a and officers like the story of a claimant with a grievance, whose employer either took no grievance, whose employer either took no effective action or retaliated somehow against effective action or retaliated somehow against the claimantthe claimant

• Complaints usually do not come out of thin air. Complaints usually do not come out of thin air. Listen, investigate, act, and document your Listen, investigate, act, and document your actions.actions.

• Employers responsive to employee concerns Employers responsive to employee concerns face UI claims with more confidence, AND face UI claims with more confidence, AND generally have fewer worries about employee generally have fewer worries about employee turnover and union activity.turnover and union activity.

Post-claimPost-claim

• Missing a claim response or appeal deadlineMissing a claim response or appeal deadline• Assuming that if TWC does not recontact the Assuming that if TWC does not recontact the

company, the claim has been dismissed or company, the claim has been dismissed or denieddenied

• Changing the explanation for the work Changing the explanation for the work separationseparation

• Failing to prove the case against the Failing to prove the case against the claimantclaimant

• Failing to present firsthand testimony from Failing to present firsthand testimony from eyewitnesseseyewitnesses

Missing A Claim Response Missing A Claim Response Or Appeal DeadlineOr Appeal Deadline

• A late claim response means that the A late claim response means that the employer waives any rights it has in the employer waives any rights it has in the claim, including the right to protest claim, including the right to protest chargebacks to its tax accountchargebacks to its tax account

• Filing a late appeal means that the TWC Filing a late appeal means that the TWC must dismiss the appeal without must dismiss the appeal without considering the underlying merits of the considering the underlying merits of the case.case.

• There is no alternative to filing claim There is no alternative to filing claim responses and appeals on time.responses and appeals on time.

Assuming that if TWC Assuming that if TWC does not recontact the does not recontact the company, the claim has company, the claim has

been dismissed or deniedbeen dismissed or denied

Changing the explanation Changing the explanation for the work separationfor the work separation

• Many TWC people, quite frankly, take a changed Many TWC people, quite frankly, take a changed work separation explanation as a sign that the work separation explanation as a sign that the employer is not credible and is just looking for employer is not credible and is just looking for the right words to get the claimant disqualified.the right words to get the claimant disqualified.

• Study the facts behind the work separation Study the facts behind the work separation carefully and get it right the first time.carefully and get it right the first time.

• If the deadline is near and the employer needs If the deadline is near and the employer needs more time, it can file a quick timely response more time, it can file a quick timely response notifying the claim examiner that the employer notifying the claim examiner that the employer wishes to be an interested party and will file wishes to be an interested party and will file more information as soon as possible.more information as soon as possible.

Failing to prove the case Failing to prove the case against the claimantagainst the claimant

• In a discharge case, the burden of proving In a discharge case, the burden of proving misconduct is on the employermisconduct is on the employer

• Employer must show that the separation Employer must show that the separation resulted from a specific act of misconduct resulted from a specific act of misconduct connected with the work that happened connected with the work that happened close in time to the discharge and that the close in time to the discharge and that the claimant either knew or should have claimant either knew or should have known she could lose her job for such a known she could lose her job for such a reasonreason

Failing to present Failing to present firsthand testimony from firsthand testimony from

eyewitnesseseyewitnesses• The only exception is in the area of drug The only exception is in the area of drug

testing, where the results of a confirmation testing, where the results of a confirmation test indicating the presence of prohibited test indicating the presence of prohibited substances in the system of the claimant is substances in the system of the claimant is accepted over the sworn firsthand denial of accepted over the sworn firsthand denial of drug use by the claimant.drug use by the claimant.

• If the claimant denies the misconduct If the claimant denies the misconduct alleged, and the employer is unable to alleged, and the employer is unable to present firsthand testimony to prove its present firsthand testimony to prove its allegations, the employer will lose.allegations, the employer will lose.

ConclusionsConclusions

• Prepare for and document Prepare for and document terminationtermination

• Report termination data to TWC in Report termination data to TWC in clear, accurate, and timely mannerclear, accurate, and timely manner

• Provide documentation and first-Provide documentation and first-hand testimony if employer account hand testimony if employer account is in disputeis in dispute

Q & AQ & A

24/7 Caregivers:24/7 Caregivers:How Do You Pay How Do You Pay

Overtime?Overtime?

Fair Labor Standards Fair Labor Standards ActAct

Overtime ProvisionsOvertime Provisions

http://www.dol.gov/elaws/http://www.dol.gov/elaws/overtime.htmovertime.htm

FLSA OverviewFLSA Overview

• Covered, nonexempt workers are entitled to a minimum wage of not less than $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

• Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.

FLSA ExemptionsFLSA Exemptions• Executive, administrative, and professional employees

(including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in Department of Labor regulations);

• Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery;

• Farmworkers employed by anyone who used no more than 500 “man-days” of farm labor in any calendar quarter of the preceding calendar year;

• Casual babysitters and persons employed as companions to the elderly or infirm.

Computing Overtime Pay

Overtime must be paid at a rate of at least one and one-half times the employee’s regular rate of

pay foreach hour worked in a workweek in excess of the

maximum allowable in a given type of employment.Generally, the regular rate includes all payments

made by the employer to or on behalf of the employee

(except for certain statutory exclusions). The following

examples are based on a maximum 40-hourworkweek applicable to most covered nonexempt

employees.

FLSA & FLSA & Home Health AgenciesHome Health Agencies

http://www.dol.gov/esa/whd/regs/compliance/whdfshttp://www.dol.gov/esa/whd/regs/compliance/whdfs25.pdf25.pdf

Companionship Companionship Services =Services =

• Services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves.

• Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services.

• General household work is also included, as long as it does not exceed 20 percent of the total weekly hours worked by the companion.

Companionship Services Companionship Services ExemptionExemption

• Employees providing "companionship services" as defined by the FLSA need not be paid the minimum wage or overtime.

• Certified nurse aides and home health care aides may be considered exempt from the FLSA's wage requirements depending upon the nature of their work.

Domestic ServiceDomestic Service

• Persons employed in domestic service in households are covered by the FLSA. Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term "domestic service employment." The overtime The overtime standard does apply.standard does apply.

Willful ViolationsWillful Violations

• Willful violations may be prosecuted criminally and the violator fined up to $10,000.

• A second conviction may result in imprisonment.

• Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to a civil money penalty of up to $1,100 for each such violation.

Q & AQ & A

Robin Kennedy, Robin Kennedy, SPHRSPHR

www.myhr.bizwww.myhr.bizrobin.kennedy@myhr.bizrobin.kennedy@myhr.biz