From the last 7 weeks, the total number of unemployment filings in the U.S. now totals 33.5 million, an unprecedented number comparable to the number of filings during the Great Depression. Although some state and federal funds are being used to supplement the unemployment funds, providing additional compensation to the unemployed, employers will be responsible for a very large portion of the total funds being doled out to employees. Specifically, employers will be responsible for repaying the state for up to 26 weeks of payments made to their unemployed employees, even those that are temporarily laid off and with plans to return. This financial responsibility will add up quickly for employers.
There is good news for those facing large unemployment bills that will come due at the end of the year. Although state or federal legislators may eventually provide additional monetary relief to employers for unemployment liability, immediate relief is currently available to employers through the following options.
1. Have employees return to work as soon as possible.
If a company is permitted to reopen under state and local health orders, employees’ unemployment payments will stop once they return to work. This means that additional weeks the employees would spend on unemployment, if not reemployed, will not be charged to the employers’ accounts.
2. Report to the state unemployment commissions if employees refuse to return to work.
If a company reopens and certain employees refuse to return to work without a valid, legal reason, employers should notify their state unemployment commission. For example, in Ohio, the Department of Job and Family Services established an online form that employers complete when employees refuse to return to work (located here). Employees are not eligible for continuing unemployment benefits if they are reoffered work at the same or similar pay and hours. Therefore, the completion of this form should have the effect of cutting off the employees’ unemployment benefits, thus preventing further liability being applied to the employers’ accounts. We also recommend, in addition to the online submission, employers notify their state unemployment commission, via a written letter, that an employee has refused to return to work under the same or similar pay and hours.
Notably, if an employee is offered a return to work under reduced hours or pay, the employer should still notify its unemployment commission as the liability may be partially reduced in proportion to the hours/pay being offered.
3. Appeal unemployment charges for former employees that previously quit or were fired from their job prior to the COVID-19 pandemic.
Finally, as discussed in a previous Client Alert located here, employers should be challenging all unemployment filings from former employees who quit or were terminated for just cause prior to the beginning of the COVID-19 pandemic. Under most state unemployment laws, employers can be liable for a former employee’s unemployment benefits up to a year from departure of employment. However, this liability may be removed or reduced if the employee quit or was terminated for just cause. Employers will need to go through the appeal process to challenge these unemployment filings as the state unemployment commission is likely unaware that the employee previously quit or was terminated. For this reason, employers must complete and timely respond to all requests for information, including the details surrounding the departure. Employers should include all relevant information, including resignation letters/emails or handbook provisions that have been violated leading to a termination.
Bryan Meek is a member of Brennan, Manna & Diamond’s Labor & Employment team and is available to assist you with responding to requests for information and/or appealing unfavorable unemployment decisions. Bryan can be reached at 330.253.5586, or firstname.lastname@example.org.