• Tuesday, June 08th, 2010

HR Insights from Barbara FreetDental Management & Human Resources: When To Fight an Unemployment Ruling

Human resources expert Barbara Freet addresses this dental management question: "When should a doctor fight an unemployment ruling?"

"Okay, I want to talk a little bit about some of the reasons why a person is not eligible for unemployment," explains Barbara. "I’ve done an overview of what all the states say and these reasons that I’m going to mention next are pretty universal. Your state may have additional rules or slight variations to these, but generally, you can apply these rules to all the states.

"Here are the reasons that a person is not eligible for unemployment. The person quits for personal reasons. Misconduct, which is defined as theft, spoiling work, damaging products or relationships with patients et cetera. This is not about poor performance. It has to be something truly damaging to be called misconduct. Stealing, using drugs, any of those kinds of things are covered under that.

"Another point is failure to accept available suitable work, so let’s say you change the hours which you can do by law and the person doesn’t want to accept those hours. You have work and the hours are such if the person says no, I don’t want to work those hours, then they are not eligible for unemployment if they quit.

"Another reason they’re not eligible is because they’re already receiving Workers Comp or State Disability Insurance funds, so you can’t get all of them at the same time.

"Another reason is a person was terminated because of violation of a published drug testing policy. That’s why in all our handbooks, I really encourage people to have a drug testing policy because if somebody comes in on drugs, that goes against your policy and they can—in a lot of states, they can be disallowed from unemployment. The person committed a felony or theft.

"Being drunk on the job, that’s actually listed.

"If you have terminated somebody for any of the reasons that are listed, it's important that you state the reason clearly in these kinds of terms when asked by the agency that governs unemployment in your state and fight it if it’s granted. Why? Because if you fight it and win, when you are in the base period, your account will not be hit.

"The moral of the story is that if someone is eligible for unemployment, then you should still respond to the appropriate agency telling them what happened and if it’s granted, just accept it. They’re eligible and they’re entitled to it. It’s wage replacement income for them. So if they’re fired even for a performance short of misconduct, they may get a ruling that they’re eligible.

"If however there's a good reason why you feel it shouldn't be granted, then fight and fight to the degree that you want to spend time on it. At the end of the day, however, I believe that you shouldn't let paying unemployment be the deciding factor in your decision-making process. There are a lot worse things that can cost you money if you keep a poor employee."

Barbara Freet, PHR, is President of Human Resource Advisors, a full-service HR consulting and staffing company she founded in 1988. Consultants serve as the HR department for clients, providing administrative functions (including recruitment, benefits, payroll, etc.) and "guardian" functions in the face of problematic employment issues. Call 800-520-7761 or visit HumanResourceAdvisors.com.

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2 Responses

  1. Hi Barbara,
    THanks so much for your insightful and relevant information on a topic that can be problematic for just about every dentist in private practice at some point in their career. I would say your piece is logical and reasonable and makes perfect sense. However, when we are dealing with an agency like EDD here in California, then all of those logic rules go right out the window. Case in point, we had a job applicant do a working interview in our office last year. She was in the office a total of 4 hours for which she was paid $50 to observe our practice and so we could get to know her better. We decided she was not a good fit for our office and we hired a more deserving and quality candidate. That interviewed job seeker then listed us on her unemployment claim and we have to fill out paperwork to send back to EDD listing her as a prior employee! I tried the logical route which is to call the EDD service number and discuss this case. You cannot get through to a human being to even discuss an employee issue….it is physically improssible. In addition, I have had my UI insurance rate more than double in the last 2 years and we have not fired/let go a single employee. Again, when you try to contact someone in the goverment agency who makes these decisions you hit a wall at the phone answering machine. I have discussed this with my accountant and he says unless I’m willing to hire an attorney to go down to the office and plead my case in person then I’m just out of luck and have to pay the increased withholding! Any advice! I’m sure I’m not the only dentist employer in this situation as the state of California tries any means, however unethical or illlegal to balance it’s budget problems. Thanks in advance for your kind response!

  2. Thank you for writing, Scott. I do have some advice and since I am in CA I can certainly empathize! Attached is an article on Working Interviews because this is a real bone of contention for lots of dentists. I talked with my employment attorney about this yesterday, as a matter of fact, and confirmed that what I have written is legal and a good solution. (If readers would like a copy of the article, please send me an email.)

    The key is that it has to be NON-PAID and look like a test rather than work. As I say in the article, the best thing for you to do is make a “dummy” chart and have clinical people work on your staff and not on patients. My attorney verified that if it looks like work and the applicant is doing something in your practice that benefits you, it is work and they are an employee. If it looks like an exercise that does not benefit you and is just a test of skill, for example, then it isn’t work and you don’t have to pay them and they are not employees.

    I have also attached a sample letter to give them (and it is important that you give it even if they are sitting right in front of you) because it documents what the time is for. If you do it routinely, even the EDD will have to concede that it is truly part of an interviewing process and not work. (I will send the letter to any who request it as well.)

    Let me know what you think about this idea and I hope it helps with the future even if it won’t help with the past. I took the liberty of attaching our products and services for dentists just in case you would like it.


    Barbara Freet, PHR
    Human Resource Advisors
    3746 Mt. Diablo Blvd., Suite 107
    Lafayette, CA 94549
    Phone: 925-283-7305
    Fax: 925-283-7306

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