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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 49497  
Subject: UI chargeback issue Date: 1/16/2013 7:46 PM
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Hi,

This is happening in Texas. Right to work state.

X was fired for incompetence. This was stated in a letter to X from his boss. He had taken on a job as a machinist and broke the machine (in mid December, and the firing was January 6), among other errors. He was rewarded unemployment compensation in a letter from the Texas Workforce Commission (TWC).

Today he got a phone call from an out of state number claiming to be the Texas Workforce Commission. They asked him all sorts of questions about the circumstances of the firing, what he was doing when the firing took place, whether he had been warned, whether there was a discipline policy in place. I believe they were going down this list for misconduct grounds: http://www.twc.state.tx.us/news/efte/ui_law_qualification_is....

What I am thinking after poking around the Internet is that the TWC or some sort of outsourced firm, is trying to figure out whether to charge back the unemployment compensation to the employer.

X almost said, but didn't say, that he saw a psychiatrist in mid-December. The psychiatrist put him on mood stabilizer medicine without making a diagnosis. The meds have definitely improved his mood, which makes me pretty sure he will get a bipolar 2 (a less severe form of BP) diagnosis at his next appointment a week from now.

So should X inform TWC of the issue? His former boss? Ethically, I believe he should, to save his former boss from getting charged back. However, the stigma associated with BPII is such that he is afraid to do so.

X is getting some good leads on the next job. He's had a couple interviews already. He will also be able to come under the wings of the state rehab folks, who will help him with retraining and placement.

Any thoughts on what to do re the probable diagnosis?

Kat
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Author: Fuskie Big funky green star, 20000 posts Top Favorite Fools Old School Fool Ticker Guide SC1 Red Winner of the 2010 Rule Breakers Challenge Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49039 of 49497
Subject: Re: UI chargeback issue Date: 1/16/2013 8:53 PM
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I don't know anything about Texas, but in GA, if there was any question about the appropriateness of my UIB claim, it would be made through correspondence delivered through the postal service, not the phone. And certainly not from anyone out of state. In GA, there is a window during which either the applicant or the former employer can appeal an initial judgement for or against benefits. I've had that happen to me twice, both times the decision came down in my favor.

However, if the employee was fired for negligence in breaking a piece of equipment he was supposed to be trained to operate or manage, there may be a justification that they were fired for cause. The question then is whether there was some sort of appeal filed within the defined window.

I don't know who TWC is, if they are a legit organization, a representative of the government, or what. X may want to contact your state's department of labor directly to find out, and not saying anything further over the phone which they may be recording (for training purposes).

Fuskie
Who discourages under any circumstances ever giving out or confirming any personal information over the phone...

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Author: zol Three stars, 500 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49040 of 49497
Subject: Re: UI chargeback issue Date: 1/16/2013 9:58 PM
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The way I understand it, the state agency usually investigates if the unemployment is through "no fault" of the employee. Apparently X was fired for misconduct which would disqualify him/her from benefits according to the TWC website: http://www.twc.state.tx.us/ui/bnfts/claimant1.html So, X needs to be careful about the inquiry. Discussing the medical condition would not help the case unless it was a well-documented medical reason that made X quit (apparently not.)

I am surprised that the inquiry was over the phone. In NC they make you make an appointment to discuss the details with the person processing your request.

- zol

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Author: irasmilo Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49041 of 49497
Subject: Re: UI chargeback issue Date: 1/16/2013 10:03 PM
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I agree with Fuskie. Never, ever give out any personal information over the phone unless you have originated the call. If you think you've received a legitimate call, ask the caller where their office is located and then independently look up their switchboard number and find them.

A number of years ago I received a call from someone claiming to be from the US Post Office Inspector's office asking me to call them back. I was sure this was some sort of scam, but before I called the number, I looked up the phone number for the local office (Newark) of the USPO Inspector. I called the number (in a different area code than the number left on my machine), explained why I was calling and asked if they had an employee with the name I was given. Turns out they did, he worked in the Trenton office. When I called I discovered I was the victim of mail fraud - someone had gotten access to my bank account for a small amount of money. Turns out I was one of thousands so affected and this inspector was heading up the investigation for the federal prosecution of the perpetrators. I ended up testifying at the trial.

I never did find out how they got access to my bank account, but since the access was under my son's name (even though he wasn't on the account), I suspect it may have been through something someone in the family ordered online.

Ira

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49042 of 49497
Subject: Re: UI chargeback issue Date: 1/16/2013 10:33 PM
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He was originally hired with zero experience a year ago. He was given a letter at firing stating incompetence over a period of time and detailing the money he lost the company. There is no written evidence of prior warnings. He was also immediately replaced with a much more qualified person. So it's possibly an attempt to weasel out of UI payback.

The medical issue was likely racing thoughts and distractibility from the condition. It's probably been going on undiagnosed for several years.


TWC is the Texas Workforce Commission.

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Author: Fuskie Big funky green star, 20000 posts Top Favorite Fools Old School Fool Ticker Guide SC1 Red Winner of the 2010 Rule Breakers Challenge Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49043 of 49497
Subject: Re: UI chargeback issue Date: 1/16/2013 10:49 PM
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Incompetence for yhe is generally not a termination for cause event. The employer has a responsibility to determine suitability and provide training for the position they are filling, not the candidate. I was once taken to government arbitration where my former employer claimed I maliciously did not live up to my potential. That was hard to hear, but the arbiter laughing as she dismissed the appeal was music to my ears.

If this was in fact the state contacting the claimant and the claim was just filed a week ago, it could just be a paper pusher trying to fill in the facts of an incomplete claim. But that they would do it over the phone and not require the claimant to come down in person must be something unique to Texas. If the claimant has not yet received an official notice of determination on the claim, it is possible the employer doesn't even know of it yet.

Fuskie
Who notes with some large companies, the costs of UIB is just the cost of doing business unless there is an overt action by the claimant that triggered their termination, and the part of HR that deals with these state queries just file the paperwork and move on...

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49045 of 49497
Subject: Re: UI chargeback issue Date: 1/17/2013 9:19 AM
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If the claimant has not yet received an official notice of determination on the claim, it is possible the employer doesn't even know of it yet.

X already had received the award letter. He stated the amount to me.

The employer has a responsibility to determine suitability and provide training for the position they are filling, not the candidate. I was once taken to government arbitration where my former employer claimed I maliciously did not live up to my potential.

He did not receive training. In fact, he claims that the foreman on several occasions gave him orders on how to operate the C&C lathe that was wrong (based on what he had learned on his own).

Who notes with some large companies, the costs of UIB is just the cost of doing business unless there is an overt action by the claimant that triggered their termination, and the part of HR that deals with these state queries just file the paperwork and move on...

This is a small private company. The cost of chargeback will be significant, which is why I am querying that if X had a probable disability in process of diagnosis at the time, it would remove the employer's interest in fighting chargeback by trying to claim malfeasance.

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49046 of 49497
Subject: Re: UI chargeback issue Date: 1/17/2013 10:30 AM
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Most companies do not EVER write a termination letter -- that is just absolutely Dumb for a company to write such a letter -- even in cases of Employee Theft from the company

Small business, and the owner is obviously an amateur.

OTOH, X is not just an amateur, but in keeping with the diagnosis, he tends to reveal too much extraneous stuff. Bureaucrats have a tendency to walk over him. I'm thinking that during an appeal, if it comes to that (it shouldn't) he'll need representation.

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Author: Fuskie Big funky green star, 20000 posts Top Favorite Fools Old School Fool Ticker Guide SC1 Red Winner of the 2010 Rule Breakers Challenge Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49047 of 49497
Subject: Re: UI chargeback issue Date: 1/17/2013 12:07 PM
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Has thus person actually received any funds from the state? If he was terminated on the 6th and has already received a benefit payment, that would have to be some kind of record. The employer, no matter how big or small, has been paying a UI tax on each employee's compensation from the point of hire. It is not something for which they are suddenly liable upon termination. The state collects these funds and pools them to service all their approved claimants.

In other words, the employer doesn't get their money back if the claimant is determined to be intelligible. But the state has an interest in making sure they don't approve benefits to unqualified claimants. I repeat my earlier belief that nothing should be done over the phone and that the claimant should return to the DOL office where they filed their claim to find out what is going on,

Fuskie
Who further suggests that the claimant write down and document by date and name as many details as to how he was inadequately trained, or how he was never given performance warnings in case he is asked, but that he sticks only to the truth, because no matter how small the employer was, you have to assume they will be armed with their own documentation and evidence if they feel claimant was terminated for cause...

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49048 of 49497
Subject: Re: UI chargeback issue Date: 1/17/2013 2:23 PM
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In other words, the employer doesn't get their money back if the claimant is determined to be intelligible. But the state has an interest in making sure they don't approve benefits to unqualified claimants. I repeat my earlier belief that nothing should be done over the phone and that the claimant should return to the DOL office where they filed their claim to find out what is going on,

My reading of the TWC (what you call DOL) website is that TX will raise the UI rates on an employer who fires someone. This makes a difference for small employers, and thus incentivises an adversarial relationship and hard feelings after a firing. The employee will also be reluctant to appeal if he's going to need the former employer as a reference later on.

Part of what bothers me about this is X getting subjected to a forensic interview over the phone, especially if that person is expert at asking the trick questions that could get X to say something with unintended interpretations being possible.

I've told him to call TWC today to find out what is going on, and to give them the phone number of the person who called.

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Author: legalwordwarrior Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49049 of 49497
Subject: Re: UI chargeback issue Date: 1/17/2013 3:13 PM
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Kat,

Why on earth would the company have hired someone with zero experience for such a job? It's my understanding that machinist work can be pretty technical and requires significant skill. At least if the hourly wage we paid ours from my former job is any indication.

Overall, I don't think your friend is in any danger. TWC was looking for evidence of misconduct. Being fired for being inept or incompetent at your job is not the same thing as willful misconduct.

I guess the big question would be whether his possible (though apparently not yet diagnosed) BP2 could have a bearing on how he did his job. I'm finding that one a bit hard to swallow. An improved mood with meds doesn't equate into improved productivity. If he couldn't do the job correctly before, there's no reason to think that he would be able to while medicated. The only possible advantage could be that he might be able to swing the issue into his being part of a Federally protected class (disabled).

The company hired someone with better skills as his replacement, which they should. Their UI premiums will also probably go up, but that's te cost of doing business and not hiring wisely the first time. I don't think there's anything in what you wrote that would prevent your friend from getting his UI.

That said, if I got fired for incompetence, I wouldn't request a recommendation from the employer who fired me.

LWW

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49051 of 49497
Subject: Re: UI chargeback issue Date: 1/18/2013 9:50 AM
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The only possible advantage could be that he might be able to swing the issue into his being part of a Federally protected class (disabled).

The ADA can't save a job. What it can do is enable you to leave work to get appointments to deal with the problem without getting fired. It's about "reasonable accommodation".

That said, if I got fired for incompetence, I wouldn't request a recommendation from the employer who fired me.

No, but you don't want the employer volunteering something negative when HR from another outfit calls.

An improved mood with meds doesn't equate into improved productivity.

It might equate to better focus when a machine is running or when setting up the machine, which is what I think the core issue is here.

My bottom line question is, once the diagnosis is conclusive (and if I can observe this, the psychiatrist should be able to), should X divulge this to TWC? It might stop a chargeback to the folks who after all employed him for a year, and probably 10 months longer than it should have.

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Author: legalwordwarrior Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49052 of 49497
Subject: Re: UI chargeback issue Date: 1/18/2013 11:49 AM
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My bottom line question is, once the diagnosis is conclusive (and if I can observe this, the psychiatrist should be able to), should X divulge this to TWC? It might stop a chargeback to the folks who after all employed him for a year, and probably 10 months longer than it should have.

How would divulging his medical condition stop TWC from a chargeback? The employer pays into a pool and unemployed people who were not fired for cause can draw benefits. Are you saying that if he divulges this he will no longer be able to get unemployment insurance benefits?

Personally, I wouldn't divulge anything about my medical condition to the TWC, unless failure to divulge would make me lose benefits. Which I don't think is the case here.

LWW

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Author: katinga Big funky green star, 20000 posts Old School Fool Ticker Guide Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49058 of 49497
Subject: Re: UI chargeback issue Date: 1/20/2013 4:57 PM
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Just to give y'all a follow-up. X got a letter in the mail on Saturday. The letter stated that the firing was adjudicated as the worker not meeting employer specifications for the job. He therefore is qualified for UI.

Thanks for helping me think through what was going on.

Kat

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Author: legalwordwarrior Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 49059 of 49497
Subject: Re: UI chargeback issue Date: 1/20/2013 6:44 PM
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The letter stated that the firing was adjudicated as the worker not meeting employer specifications for the job. He therefore is qualified for UI.

Very glad that it's all worked out ok for X. Hope he finds another job that actually fits his skills soon.

LWW

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