Not many people realize that to receive unemployment benefits, an applicant must be willing and able to work. That is why a person receiving unemployment must certify each week that s/he is looking for work. And, what if a worker is off on FMLA leave? Could that person receive unemployment benefits? The court in Texas Workforce Commission v. Wichita County, Texas, 2016 WL 7157247 (Tex. App. Ft. Worth 2016) said no. It might seem obvious that if someone is out on FMLA leave, then that person must be too ill to work.

But, in this case, the employee, Julia White, suffered from anxiety and depression. She went out on sick leave. When that leave ran out, her employer placed her on unpaid leave. It continued to pay for her medical benefits. At a meeting, the County decided it could not offer a job that would accommodate her impairment. So, the parties agreed her employment would cease after the FMLA period of 12 weeks ended. But, Ms. White applied for unemployment benefits before the 12 weeks elapsed. She testified, apparently without benefit of a lawyer that she was not sure what her status was during those 12 weeks. She said her job ended due to illness. TWC allowed her to receive benefits. It billed the County’s account. Wichita County filed a petition seeking administrative decision, contesting the award of benefits.

On appeal, the court found the employee was out on FMLA leave and could not, therefore, receive unemployment benefits. Tex.Lab.C. Sec. 207.002-.003 provides that unemployment benefits are available to persons who are unemployed. An unemployed person is defined as a person who is not performing services for another for a wage. But, Tex.Lab.C. Sec. 207.021(a) provides that a person receiving benefits must be able to work and is actively pursuing employment. Instead of addressing the question regarding when Ms. White’s employment ended, the court simply found that during the period of FMLA leave, she was not eligible rot unemployment benefits. See the decision here.

So, now, the fox will guard the henhouse. Gov. Abbott appointed Julian Alvarez to the Labor position on the Texas Workforce Commission board. The three person board is supposed to include one member representing employers, one member representing labor, and one chairman. Gov. Abbott replaced the long-time labor board member, Ronald Congleton, with Mr. Alvarez, a former Chamber of Commerce CEO. … Okay. It never occurred to me the Chamber was such a staunch protector of the rights of labor. Most Chambers of Commerce do not claim to represent the views of the working man and woman. The AFL-CIO objects to the appointment of an employer representative to the labor slot. See Rio Grande Guardian report.

Even with the current board, TWC is generally opposed to claimants for unemployment compensation. I think we can expect that its stance will now grow more antagonistic to folks who get fired. And, that matters. Unemployment benefits are awarded only to those who get fired through no fault of his or hers. So, messing with those folks impacts all of us, in the end.

When a person is fired through no fault of their own, it is a huge psychological blow.  That emotional setback is compounded when the Texas Workforce Commission denies the newly unemployed person’s claim for unemployment benefits, or worse, shows bias toward the employer.  One poor woman worked for a very demanding person.  The male CEO was abusive, demanding his employees work 60, 70 and even 80 hours per week.  "F— you all!"  "I give up!!"  "You all are f—ups!" he would frequently shout to his employees.  Since he was the owner of the small business, the employees had no recourse.  When the woman asked for time off for a brief vacation, the male manager said yes.  At first.  He later rescinded his permission, insisting the nine year employee work all month before taking a break.  

The nine year female employee threatened to quit.  The male manager said she cannot quit, because she was fired – but not until the end of the month.  

In the end, the female employee was fired.  She applied for unemployment benefits.  In the interview, the TWC investigator repeatedly asked questions indicating the investigator believed the male CEO’s story that the woman quit because she could not get those two days off for a brief break.  The TWC officer accepted the supervisor’s story completely.  Now, the nine year employee is appealing her denial of benefits.  I talked previously how TWC seems designed to frustrate employee claims.  See my prior post.  In another post, I talked about how the head of the appeals division at TWC counseled employers on how to "game" the system and avoid paying benefits.  

Nothing, it seems, has changed. 

Sometimes, its the little things that lead to employment lawsuits.  At one Wisconsin law firm, the receptionist, Sandy Weidner, was expected to make the coffee in the morning.  One morning, someone failed to make the coffee.   Annoyed, management looked at Ms. Weidner’s time card and noted several alleged instances when Ms. Weidner failed to note early departures.  She left 15-30 minutes early and did not note that on her time cards.  She "stole time," said the law firm.  The firm fired her. 

Ms. Weidner applied for unemployment benefits and won.  She denied she stole anything, saying she had recently retired after 20 years as a government worker and did not need the $150/week unemployment benefits.  

Her employer, the Cross Law Firm, represents employees in employment disputes.  See ABA Bar Journal report

The corporate world can be harsh.  Mega Corporation takes over slightly Smaller Corporation.  New management takes over the local sales office.  For unknown reasons, new management decides they need new sales representatives and a new regional manager.  New management lays off seven people total in the local office.  Four out of the seven have just received raises and bonuses. They are all successful employees. 

To avoid the spike in the unemployment insurance rates, they notify each employee in writing that s/he is "voluntary terminated."  Its not true.  These terminations came with no warning.  But, in claiming "voluntary termination," new management make it very difficult for the newly laid off employees to obtain unemployment benefits.  They escort the victims out the door and promise to ship them their personal belongings. This all happens just a few weeks before Christmas.  

And, since the new management gave no reason for the lay off, the newly fired employees cannot claim discrimination.  In Texas, we follow the "at will" doctrine.  An employee can be fired at will for any reason.  The only exception for most people is some form of discrimination.   Since new management provided no reason for the "voluntary terminations," the employees have no viable lawsuit.  They have no clue why they were chosen for termination and not the other 15 or so employees.  If they cannot tell the judge and jury why they were fired, how can they file a lawsuit?

I spent 12 months in Iraq, a place where the terrorists tried to kill us everyday.  I was only there one tour.  The war has lasted several years.  But, I noticed my one Christmas in a war zone, the terrorists were pretty quiet Christmas day.  In Iraq, everyday was a work day.  But, on Christmas, most of us got half a day off or more, since it was relatively quiet.  I have joked in the past that it was nice the terrorists showed a little professional courtesy and let us have one semi-safe day a year.  Hate to say it, but I think the terrorists when I was there were a little more humane than some corporations I could name….

 

In Texas, unemployment benefits are awarded to employees who lose their job through no fault of their own.  That is the general rule.  It is one area in Texas employment law where fairness carries some weight.  The process starts when the employee files a claim for benefits.  Texas Workforce Commission will then request a statement from the employer.  Some employers choose not to respond, in which case TWC will award benefits. 

If the employer responds with information indicating that the employee’s termination was due to some misconduct by the employee, then TWC will set the claim for a telephone hearing.  The employee may have evidence corroborating key points.  If so, s/he must provide copies of the evidence to the employer and to the TWC judge prior to the hearing.  The hearing notice should include contact information for the employer or the employer’s representative. 

The employer may hire a lawyer for the hearing.  More often, the employer will rely on its Human Resources department to serve as representative.  

The employee must satisfy some technical requirements to be awarded benefits.  I am not aware of the specific requirements.  The website, Can My Boss do That? contains some general information regarding those requirements.  In General, the employee must have worked for the employer for some period of time and must have earned a certain level of money to qualify for benefits.  TWC states on its website that the applicant must have earned sufficient amounts of pay in four of the five preceding quarters.  

Can my boss do that? discusses one situation where they suggest you will be disqualified for benefits: if you testify that you quit due to stress, then you will lose benefits.  That may be true, since resignation usually does disqualify a person for unemployment benefits.  But, if you can show that you quit for medical reasons, you might still win benefits.  TWC judges are sometimes sensitive to disability issues.  

It is difficult to find a lawyer to represent an employee at a TWC hearing.  Employers and, I suspect, TWC do not want employees to be represented at such hearings.  There is no mechanism for lawyers to be paid if they represent an employee.  And, of course, an employee who has just lost his job will have little money available to hire a lawyer. 

In fact, even keeping benefits once they have been awarded is a challenge.  The employee is required to call in once a week to certify s/he has looked for work that week.  If you do not call in, you will not receive benefits for that week.  The phone line is very busy.  I have heard from a couple of clients that they could not get through the busy signal for one or more weeks.  So, they missed benefits one or more weeks.  It i almost as if TWC was trying to keep the employe from receiving his/hr benefits once they have been awarded. 

And, of course, it is hard to believe but the former head of appeals for TWC was offering advice to employers in 2010 on how to deceive employes and avoid paying benefits.  See my prior post.  The Texas unemployment benefit process is not employee friendly.  But, it is possible to appear at a hearing and win.  The employee will have to plan ahead and think carefully about what you want to to tell the judge at the hearing.  You also need to consider carefully the questions which you wish to ask key witnesses. 

 

 Written counseling is important.  I have advised and represented small business owners.  The best protection from a false claim is written counseling made at the time of the alleged infraction.  Even the most basic workplace will have scratch paper somewhere.  You as a manager need to include the basics:  what the employee did wrong, when s/he did it, and what you as the manager expect in the future.  This written documentation will help tremendously when/if the employee later seeks unemployment benefits or files suit for alleged discrimination.  

Texas Workforce Commission appears almost designed to undermine legitiimate employee claims for unemployment benefits.  I receive one or two calls every year from recipients of unemployment benefits who were overpaid unemployment benefits through TWC errors and now, TWC wants their money back.  TWC essentially tells them to pay it back or else.  

One young man called me from out of state saying he did disclose his part-time job.  TWC continued to pay him benefits.  Then, after many months, they realized their error and threatened him with suit if he did re-pay some $7,500 in overpaid benefits.  I had to explain to him that it would cost him close to $7,500 to pay me to represent him regarding this error. 

More, recently, I heard from a woman who was paid some $14,000 in benefits erroneously, but not erroneously.  That is, when she was hired for a job, she signed an agreement saying she would not apply for unemployment benefits if she was ever fired.  Well, she was fired after a few years.  She applied for unemployment benefits and received them.  TWC later found she was not entitled to benefits.  They accused her of fraud and demanded she re-pay the benefits.  She eventually had a telephone hearing and this time, TWC found the employer at fault.  So, the fired employee should receive unemployment benefits, after all. 

So, now she is eligible for benefits.  But, TWC will not pay her benefits unless she first re-pays the $14,000.  Of course, she is unemployed and does not have an extra $14,000.  Talk about Catch-22.  To get benefits, she must first re-pay the benefits to which she was entitled, after all.  Makes my head spin….

I helped a lady with an unemployment claim appeal last year.  She was required to call in each week to "register" for benefits.  If she did not call in, she would not receive benefits that week.  She called into TWC over and over for two weeks and could never get through.  The line was always busy.  Since she could never get through, she was never able to collect unemployment for those two weeks.  She appealed.  She testified that she could never get through.  There was no testimony to the contrary.  But, the TWC judge ruled against her on that one issue. 

The lady with the $14,000 issue had the same experience.  She tried to get advice from TWC regarding this issue in December and January and never could get past the busy signal.  She finally reached someone in February. 

I previously wrote about the appeals division at TWC.  I talked about the head of the appeals division at TWC advising employers on how to "game the system."  The head of the appeals division told employers at a conference that they could avoid unemployment claims through subterfuge.  See prior post.  So, yes, it almost appears that TWC is a system designed to avoid paying valid claims for unemployment benefits.  Same old, same old…..

 

The TWC official in charge of appeals of unemployment claims gave advice to employers on how to "game" the system.  Jonathan Babiak told employers at a conference in June that they should give employees the opportunity to quit instead of being fired.  Some employees, he explained, would think they could not apply for benefits if the records showed they quit.  See San Antonio Express-News report.    He was speaking at a conference sponsored by the Chairman of TWC, Tom Pauken.   Mr. Pauken said such advice is not proper.  Employers should not attempt to "game" the system, said Mr. Pauken.  As head of appellate services, Mr. Babiak is supposed to remain unbiased. 

Mr. Babiak has been re-assigned with no loss in pay.  Yea, I bet……

I just got off the phone yesterday with a woman crying because we lost her hearing.  I tried to explain to her that in general, TWC hearings favor employers.  Employees can win some, but close cases usually go to the employer.  

Frequently, employees call me and tell me with breathless excitement that the employer is violating some law, the caller knows it and then they pause.  They seem to expect me to say, "well, then, ignore them" or "well, ok, then tell them to jump in the lake."  ….  No, we cannot say those things. 

I sympathize with the caller’s plight.  But, unless you have a court order in hand, or unless they are asking you to perform an illegal act, you have to do what the employer says.  Period.  

We see this in a case described by a pro-employer blog, Texas Employment Law Update by Russ Cawyer: Uranga v. Nationwide.  This is a decision rendered by the state court of appeals in El Paso. The employee worked for Nationwide from 2003 to 2005.  The employee claimed he was not paid overtime; he believed the employer was acting in bad faith to build a record to fire him; and that he was about to be paid off.  So, he quit.  Meanwhile, the employer had been trying to meet with the agent to discuss perceived performance issues.  On three occasions, the employee failed to appear for these meetings. The employer then came to understand from others that the employee had stopped coming to the office for two months and had removed the computer equipment.  Mr. Uranga apparently quit.  He applied for unemployment benefits.  But, Nationwide argued that the employee had abandoned his job.  

The El Paso court found in favor of the employer.  The supervisor sent a letter to Mr. Uranga saying he had abandoned his job.  There is no mention in the report of Mr. Uranga formally quitting.  There is no indication that he objected to the letter from his supervisor.  Yes, even when you believe you are being treated unfairly or unlawfully, you, as an employee, need to tell your employer that you are quitting.  

If an employee quits for good reason, s/he might receive unemployment benefits.  But, here, Mr. Uranga could not even show that he notified the employer that he had quit.  Apparently, there was no letter, no memo, no note.  And, he missed a few meetings with his supervisor.   These are all good reasons for termination.  If he felt he was owed overtime pay, then he should have filed a complaint with Department of Labor or Texas Workforce Commission.  You cannot just ignore a boss you believe is violating the law or mistreating you.