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hello everyone my name is christine mayhew i'm an attorney in raleigh north carolina with the law firm of anderson jones and i practice almost exclusively employment law and i'm honored to be here today to talk to you a little bit about unemployment benefits in north carolina so first and foremost what are what exactly is unemployment insurance what are unemployment benefits so if you're a north carolina employee and you've lost your job you may be eligible to collect unemployment benefits under the state unemployment insurance program this program is administered by the north carolina department of commerce division of employment security and i've got the email down on the left hand side of the screen here on my powerpoint for the division of employment security so unemployment insurance pays temporary assistance to eligible individuals who are unemployed through no fault of their own and we will talk a little bit in a moment about what that means to be unemployed through no fault of your own so not everyone who applies for unemployment benefits will qualify there are certain conditions that must be met regarding initial eligibility and then remaining eligible to receive the benefits it's important to note that it's the department of employment security and not the employee's former employer who determines whether or not an employee is going to receive benefits so in my practice that has been a misconception that i have seen is when an employee is separated from his or her job it's typically a question of is my employer going to pay me unemployment well it's not really within the employer's decision making as to whether or not an employee is going to qualify for benefits that determination resides with the department of employment security so who can qualify to collect unemployment so generally in north carolina there are four general requirements to be mindful of first of all again you must be unemployed due to no fault of your own again the department of employment security not the employer makes this determination based upon information that the employee follow files and information that is provided by the employer must be considered monetarily eligible to receive unemployment and this is a formula that the department of employment security has in place in terms of earning requisite wages to establish a claim during relevant base periods and again that's a formula that the department of employment security has in place must be physically able available and actively seeking work so what this requirement is is basically you're unemployed through no fault of your own but yet you're ready willing and able to continue to work and and to be employed so someone who has decided to retire um and is not actively seeking work wouldn't it's not the type of an individual who is generally qualified to to receive unemployment additionally if you are fully disabled unable to work you're not physically able to work the unemployment benefit system is not set up to compensate you it's for individuals who again no fault of their own are unemployed but are ready willing and able to undertake employment and lastly you must register for work with the north carolina job service information that you would receive from the department of employment security when you file for benefits so we've talked a little bit about meaning and individual being unemployed through no fault of his or her own what actually does that mean generally north carolina if you were fired for any reason other than misconduct you are unemployed through no fault of your own and the statutes set up definition of what is misconduct it's generally one of two things and i'll go ahead and apologize up front these definitions are full of legalese and and pretty lengthy but we'll talk specifically about how they apply in real world situations in a moment but just generally as the statute said uh misconduct is wilfur wanton disregard of the employer's interest and deliberately violating standards of behavior that your employer has the right to expect you right to expect of an employee and or behaviors that have been explained orally in writing to an employee by the employer or conduct which events is carelessness and negligence of such a degree as to manifest an intentional disregard of your employer's interests again very you know definitions full of legalese very general very subjective how do these really apply in the real world so a violation of an employer's written alcohol or illegal drug policy would be considered misconduct meaning if you were terminated from your job for violating a written alcohol or illegal drug policy you likely would not qualify for unemployment benefits that would be considered misconduct you report to work impaired by alcohol or drugs which could be the same as the violation of a written policy or even if there's not a written policy in place if you appear for work impaired unable to work probably not going to qualify for unemployment if you're but if you're fired for that purpose for that reason consuming alcohol or legal drugs on the premises conviction by a court if for manufacturing selling or distributing controlled substances if that conduct is related to employ to work or it's in violation of an employer's work policy determination or suspension from employment after arrest or a conviction um just certain listed offenses ones that involve violence sex crimes are illegal drugs again if that offense is related to you to your work or again as a violation of employers work policy regarding those issues physical violence at the workplace so if you get into a fist fight with a co-worker or a customer or even a member of the general public while you're at work and you're fired as a result you're probably not going to qualify for unemployment it probably would be determined that you were fired for misconduct and not eligible inappropriate comments are behavior towards supervisors co-workers vendors or just even to the general public related to a fairly protected characteristic that creates a hostile work environment again a lot of legalese there so what this typically means is if you have made inappropriate comments on the basis of someone's fairly protected characteristic which is race gender sex national origin religion disability age those types of things if you have made inappropriate comments at the workplace as to those protected characteristics likely and are fired as a result likely are not going to qualify for unemployment benefits theft if you're stealing from your employer and you're fired as a result you're not the type of person that um the unemployment benefits seek to provide for so probably not going to be able to collect unemployment in that circumstance forging or falsing any document as related to employment also considered misconduct violation of employees written absentee policy so assuming again that your employer has a reasonable absentee policy in place if you're not showing up for work and you're fighter as a result probably not going to be able to collect unemployment benefits refusal to perform reasonably assigned work tasks or adequately perform your duties within a 12-month period if you have been written up three times during that time period for these performance issues so a few important takeaways from those examples of misconduct it's a fairly high level of improper behavior to disqualify you from benefits so showing up under the influence of drugs getting to a physical fight stealing from your employer fraudulently providing information and employment application harassing other employees on the basis of race and those types of there it's a very high level of improper behavior to disqualify an employee from receiving benefits misconduct is is a pretty high level again of misbehavior if an employee is fired for just general performance issues that employee may still actually qualify for unemployment generally speaking unless the employee's been written up for performance issues at least three times in the past 12 months so again to flip back to this prior slide this was number 11 where you've you've just failed to adequately perform your job if that happens and you're fired as a result typically speaking unless you've been written not three times within a 12-month period for performance issues it's not going to be considered misconduct and additionally these issues of misconduct rely they are within the employer's burden of proof in order to show so if you are fired and seek to file for benefits it is the employer's burden to show that you were fired for misconduct they have to put up the evidence and they have to put up the information to the department of employment security to prove that it was misconduct the reason you were fired in order for you to be determined and eligible for benefits so what amount of employees not fired but the employee resigns this is a question that i do see to a lot there are folks who have the misconception that if you resign you're not going to qualify for benefits that actually is a misconception because you can qualify for benefits even if you do resign however there is a different standard in play than the misconduct standard when analyzing whether an employee who resigns would be eligible for unemployment so the standard that is in play when an employee resigns is the department of employment security is going to look at whether or not that employee left work for a reason other than good calls attributable to the employer okay so different standard than the misconduct so if in short if an employee resigned for good calls attributable to the employer that employee may still be eligible for benefits again of course the question becomes what are examples of good calls attributable to the employer there are two generally speaking statutory defined reasons number one reduced work hours so if you have left employment because of a permanent reduction in your work hours at more than 50 percent that may be determined to be good calls attributable to your employer which would entitle you to unemployment benefits now again this is just a rebuttable presumption so if your employer shows that perhaps your work hours were reduced because you weren't showing up for work you're violating their absentee policy um you weren't doing your job and they had to assign your job to someone else and had to reduce your work hours as a result then you know that is a rebuttable presumption and if you quit and the employer puts forward that type of evidence before the department of employment security then it may be determined that you did not leave work for good cause tribute to the employer additionally not only reduced work hours but a reduced rate of pay if it goes below if your pay is reduced more than 15 percent and you then leave employment it's presumed to be leaving for good calls attributable to the employer just like with reduced at work hours however the employer may rebut this presumption um and can put up evidence that you know perhaps the reduced rate of pay was because of um you know low performance issues or again not showing up for work um you know or other reasons malfeasance misfeasance or non-visas on the part of the individual and that just means you know perhaps misconduct on the apartment individual it was a disciplinary reduction in pay then the presumption would be rebutted and someone who resigns for reduced rate of pay not may not then qualify for unemployment it may not be good cause attributable to the employer so are there any other reasons other than what those two statutorily defined reduced work hours and reduced pay that may qualify as good cause tribute to the employer there are a few um but they're more difficult to establish and for these we're looking at case law these aren't things that are found in the statutes but cases that have come before the department of employment security where they have found good calls attributable to the employer importantly a supervisor yelling at you and perhaps using obscene words in and of its and then an employee pointing as a result may in and of itself not constitute good calls attributable to the employer uh so you know i've had a lot of clients who have felt like they work in a hostile work environment um and you know it the characteristic of a lot of yelling or obscenities being used and feel the need to quit i mean that in and of itself believe it or not may not constitute good cause attributable to the employer however if the you know tone of voice or the obscenities that are being used are directed at you on the basis of a protected category such as sex race gender age national origin religion disability that may be good cause attributable to the employer if you if you are being harassed on those particular basis or the words the obscene words that are being used against you are on the basis of those protected characteristics that may actually then raise it to good cause attribute to the employer if you feel that if you're forced to leave employment resign as a as a result failure to pay overtime is applicable so if you're working hours and you're not getting paid properly and including proper overtime and leave as a result that could be considered good cause trivial to the employer there is a at least one case that said where there was a relocation of the workplace which increased the employees commute by over 50 percent and the employee subsequently resigns that that was good cause attributable to the employer to entitle the resigning employee to collect unemployment benefits in addition as we just talked about where the employer has the burden of proof to establish misconduct in a situation where an employee resigns it is the employee who has the burden of proof to show that it was for good cause attributable to the employer so that's sort of a burden shifting as to who needs to present the evidence to convince the department of employment security regarding eligibility so how does the situation work if an employee is resigned because he or she is told you'll be fired if you do not resign or you're given or you're given the option to resign or be fired typically in those cases the department of employment security has treated that separation from employment as a termination and will generally analyze the facts from that standpoint and again why that is important because it determines who has the burden of proof who has to put up the evidence regarding eligibility it's the employer who would have the burden in that situation and the employer has to show misconduct i would just advise that you know practice point is in terms of if you're applying for unemployment and you have resigned because you were told you were going to be fired or you've resigned in lieu of being fired you should you should indicate that when you're filing for your benefits so that it will be treated as a termination as opposed to recognition and there is a place when you're filing for benefits that you can input that information and we'll talk a little bit more about how your how you file for benefits so we've talked about misconduct we've talked about um resigning with good cause trivial to the employer are there any other unique circumstances that would qualify an employee for unemployment there are a few um if you are the spouse of someone in the military and you have to leave work to accompany your spouse because they've been reassigned that's not good cause you're trivial to the employer that's not this you know that's not being leaving work for a reason other than you know misconduct but it is something that may qualify you for benefits there is a particular statutory provision that allows the military spouse relocation a disciplinary suspension for more than 30 days so if you have been suspended for less than 30 days and not being paid you can't collect unemployment benefits but if it's greater than 30 days what the department of employment security is going to look at is they're going to consider you have been discharged after that 30-day period and then look at why you're on the suspension to determine whether or not that quote-unquote separation from employment would constitute misconduct and if not then you may be able to collect unemployment benefits after that 30 day mark d mestic violence so here is another situation i think that could be specifically um applicable to clergy who are counseling parishioners on domestic abuse issues if they do have a parishioner who is suffering from that type of conduct so in domestic violence situations if you have an individual who reasonably believes that the continued employment would jeopardize their safety or the safety of an individual's immediate family because of domestic violence issues and that individual then leaves employment because of that that individual may be entitled to collect unemployment benefits so a situation might be of i guess the individual who is works at the same employer as the spouse or is being stalked at that particular place of like a place of business by um you know a spouse who is who is there in a domestic violence relationship with then if that individual feels like for his or her safety needs to leave employment may be able to qualify for unemployment benefits and the important point here is how do you document that someone is a victim of domestic violence so one piece of documentation that could be useful in making that eligibility determination for unemployment is documentation from a religious leader that this individual has come to this religious leader um and sought assistance in dealing with this domestic violence uh issue so again this this could be a situation in particular where parishioner has sought assistance from religious leader and that could actually be useful in assisting this individual and applying for unemployment benefits and there are some other reasons here too other qualifying reasons in terms of how you determine how you establish domestic violence and those are listed here on the slide so having gone through what it is to be eligible and and who will qualify um if you've got an employee who believes that he or she may be eligible and would like to explore flying filing for benefits how does that process work so the best way to file for benefits is to go online to the des website which i've again got listed here and set up an online account and enroll for benefits online has the des website has a great step-by-step instructions and tutorials on how to create an account and apply for benefits and i've got both of those websites listed here you're going to need certain information handy when you apply uh because the online system is going to ask you for various pieces of information your social security number why you're separated from employment along with some other things and again a list of all of this information can be found at this website here on the slide and i've got i'll go through it here briefly with you uh you need your social security number details from your most recent employer about why you're separated it was a resignation were you terminated what were the reasons behind it and also in terms of any separation vacation or severance pay because that could impact your benefits um it's a little bit beyond the scope of this presentation to talk about it but i'll give particularly one example so if you leave employment and you've got two weeks of vacation that are paid out to you well if they're paid in accordance with a policy that your employer has to pay vacation um as part of termination of employment that in and of itself is not going to disqualify you for two weeks of unemployment however if the goodness of his or her heart your employer pays you unused vacation at the termination of employment but there's not a policy in place that says that they will do that in every circumstance of separation of employment for that two-week time period that you receive those vacation payments you're not going to be qualified for unemployment because the way the department of employment security would see that is you're continuing to get two more weeks of wages and you're not quote unquote fully yet separated in terms of qualification for unemployment details regarding any retirement pay you may have it's important here your bank routing number and your account if you want those payments directly deposited into your account if you do not select direct deposit you'll just be issued a debit card you'll need your work history for the past two years as well and so some other maybe not as prevalent issues in terms for non-citizens or formal federal employees or military personnel there's some additional information that they will need to provide when they set up an account to file for benefits again all of this information can be found on the department of employment security website but i've also got the information listed here for those unique circumstances okay so you've opened your account department employment security you've provided them social security number uh you provide them your bank account number your dates of separation reasons for separation what happens what happens after you've gone through that application so after you submit your application des will make a determination regarding whether or not you're eligible um as part of this process your employer will be contacted and asked to provide information about the separation from employment and they have 10 days to respond you know assuming there are no issues that the what i mean by no issues is that you know the employee puts his or her dates of employment reason for separation um and all of that matches up to what the employer has said and it's it on its face appears not to be misconduct that a person was terminated for example no issues then people will receive their first payment usually within about two weeks after filing the claim and this time frame can can change somewhat depending on certain circumstances but that's generally speaking there is a one week waiting period before benefits kick in and i've explained a little bit about what that work what that means here it doesn't mean to wait a week to file go ahead and file but there will be a one week waiting period after you're eligible for benefits kick in if there are issues however and you know those could be a variety of things it could be as simple as the dates of your employment don't match up with the information that your employer provided um you know it could be more complicated that you said you know i resigned because i was told i was going to be fired and the employer may come back and say no it's that's not how it happened at all or you could say you know i was fired because of you know i've um it was told i violated the dress code and the employer may come back and say no it actually was because you stole you know there's things that could really um change the determination as to whether or not you're eligible for benefits so if there are issues if it's a simple one the department employment security may just notify you what those issues are and may be able to answer some simple questions if not if it's a little bit more complicated they may they will make an initial eligibility determination send that to you and if you're disqualified for benefits then you do have appeal rights and in fact there's multiple levels of appeal where an employee can appeal the determination as can the employer so if a determination of eligibility is made and the employer finds out about it and we'll find out about it um then you know the employer can appeal that determination as well and against outside the scope really this presentation to talk about all the different levels of appeal and timelines and and so forth but just be aware that those procedures are in place and um there are short deadlines in place if if an appeal is to be filed so you've been found eligible what kind of benefits are you going to receive currently right now the maximum amount of benefits is about 350 a week for up to 12 to 20 weeks and again the department of employment security uses the formula to determine how much you're going to receive and for how long these amounts and time frames can change subject to changes in the law the one example where there was expanded benefits that had that have been enacted in response to covet 19. so you've been awarded benefits how do you keep those going after the initial eligibility determination few requirements to maintain eligibility every week you must submit a weekly certification for which you'd like to receive benefits and again as you're going through the the process of filing online you're going to be given more information about how to submit this weekly certification you must seek work with at least three potential employers each week and maintain a list of those of that work search and if you are going to work while receiving unemployment benefits you must report the money you earn when you file that weekly certification it is important to keep in mind you can earn up to 20 of your weekly benefit amount that you're getting from unemployment benefit without penalty and finally you must continue to be physically able and available to work we talked about this at the very beginning of the presentation but again unemployment is for folks who through no fault of their own have found themselves without work but are well ready willing and able to get back to work and so you must continue to be ready willing and able to do so how has coven 19 impacted unemployment benefits and i have now crumpled this slide because i think that's kind of how we all feel about coven 19. um just kind of want to crumple it up and throw it away but i will say with with the onset of this pandemic there have been um some changes to the unemployment benefit system that are advantageous to employees so i've taken this information directly from the website department employment security but you can see here that you may be eligible for unemployment assistance if you have lost work for a reason attributable to coven 19 and i've got some of those listed here one of them that i find is is very helpful as you can see you are the pro reason if you are the primary caregiver for a child in your household who is unable to attend school and you have to quit your job to stay home with him or her you may be eligible for unemployment and as you can see that would not typically be a reason that you know for misconduct or good cause trivial to the employer even some of those other additional reasons that we talked about that you may qualify for benefits so there have been a large expansion of reasons for which you might qualify for unemployment because of coven 19. down here at the bottom i will just point out if you have the ability to telework or you are receiving paid sick leave or under benefit other benefits you would not be eligible for unemployment as well you can't double dip so again to go back to this in this case somewhat outside the scope of this presentation but if you're the private caregiver for a child whose school is closed and you have to quit your job to stay home with him or her you may actually be eligible for some extended some new federal leave benefits that have been passed under the cares act which you might be familiar with but you can't collect under the cares act and unemployment at the same time in addition an employee who is displaced from work due to cover 19 has some other special benefits that they're entitled to that we don't we didn't see just under the general unemployment benefits um you should choose coronavirus as a reason for separation of employment when you set up your account with a dhs and give i'm sorry des and provide the information regarding your separation they have extended the amount of time a participant may be eligible for benefits and this information can be gathered from the website also there's an additional 600 a week in benefits available under certain federal programs so again as you may recall from earlier in the presentation typically the maximum is 350 a week based upon a formula that the des will put in place um based upon what you were making when you were previously employed but now there's an additional 600 a week on top of that and in fact if you find yourself separated from employment during this time period where these benefits are in place even if it's for a reason not related to coven 19 you may be eligible to get that additional 600 dollars also something new we're seeing is self-employed workers and independent contractors who would not typically be eligible for unemployment can now file for benefits and we talked about in remaining eligible and for unemployment that you have this ongoing obligation to search for work three jobs a week that is being excused under this um right now um in terms of folks that are separated from work due to coven 19. so thank you for the opportunity to talk with you today about unemployment and wish you all well thank you very much