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Employment Law: Unemployment Claims Procedures

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The following is a brief overview of the Colorado Employment Security Act.

INTRODUCTION

Questions frequently arise concerning the procedure surrounding unemployment compensation laws when an employee is dismissed. It is important to understand in Colorado that employees that have not entered into a contract or contractual relationship with an employer are generally considered to be employees at will and may be terminated at anytime; however, depending upon the facts and circumstances surrounding the employee's termination, the employer's account in the unemployment compensation fund may or may not be charged. The principle behind unemployment insurance is that it is for the benefit of persons unemployed through no fault of their own, and that each eligible individual who is unemployed through no fault of his or her own shall be entitled to receive certain benefits. The following material is a brief overview of some of the laws set forth in the Colorado Employment Security Act.

EX-EMPLOYEE'S QUALIFICATIONS FOR BENEFITS-ELIGIBILITY-DISQUALIFICATION

The initial burden of proof is always on a claimant to establish a prima facia case of eligibility for unemployment compensation benefits. If the claimant presents a prima facia case for eligibility and the employer contests "an otherwise eligible claimant's right to benefits on the grounds that the claimant was discharged for misconduct," the employer then has the burden to make a prima facia showing to the contrary. If the employer meets this burden, the claimant is entitled to present evidence to justify the acts which led to the discharge. The employer, when contesting unemployment compensation benefits, needs to demonstrate that the ex-employee (claimant) should be disqualified from receiving funds from the employer's fund and that the employer should not be responsible for contributions to the fund due to the claimant's unemployment.

Some of the more common reasons for not paying benefits from the fund to a claimant include the following:¹

1. Quitting employment because of dissatisfaction with prevailing rates of pay in the industry, standard hours of work, standard working conditions, or working conditions which generally prevail for other workers performing the same or similar work, regular assigned duties, or opportunities for advancement;

2. Quitting employment because of dissatisfaction with the supervisor with no evidence to indicate that the supervision is other than that reasonably to be expected in the proper performance of work;

3. Quitting to marry, irrespective of whether or not such marriage occurs subsequent to the separation from employment;

4. Quitting to move to another area as a matter of personal preference or to maintain contiguity with another person or persons unless such move was for health reasons;

5. Quitting to seek other work;

6. Insubordination;²

7. Violation of a statute or company rule which resulted or could have resulted in serious damage to the employers property or interest;³

8. Off the job use of not medically prescribed intoxicating beverages or controlled substances to a degree resulting in interference with job performance;⁴

9. On the job use of not medically prescribed intoxicating beverages or controlled substances;

10. The presence in an individual's system, during working hours, of not medically prescribed controlled substances, or of a blood alcohol level at or above 0.04 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a drug or alcohol test administered pursuant to a statutory or regulatory requirement or a previously established, written drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests.

11. Incarceration after conviction of a violation of any law, or loss of license which is essential to job performance through a violation of any law;

12. Theft;

13. Assaulting or threatening to assault under circumstances such as to cause a reasonably emotionally stable person to become concerned as to his or her physical safety;

14. Willful neglect or damage to an employer's property or interest;

15. Rudeness, insolence, or offensive behavior of the worker not reasonably to be countenanced by a customer, supervisor, or fellow worker;

16. Careless or shoddy work;⁵

17. Failure to properly safeguard, maintain, or account for the employer's property when this obligation is an essential part of the job;

18. Taking unauthorized vacations or failing to return to work as scheduled after an authorized vacation;

19. Refusal without good cause to work a different shift when no violation of seniority rights is involved;

20. Refusal without good cause to accept transfer to another department which does not involve a substantial change in working conditions or a substantial loss in wages;

21. For other reasons, including, but not limited to, excessive tardiness or absenteeism, sleeping or loafing on the job, or failure to meet established job performance or other defined standards;

22. Lack of transportation;⁶

23. Voluntary retirement; and

24. Failure to participate in or failure to complete an approved program of corrective action to deal with an addiction.⁷

There are various reasons an ex-employee may be given a full award of benefits, which may include:

1. Laid off due to lack of work;

2. Health problems, including spouse and child's health problems which may include pregnancy;⁹

3. Unsatisfactory or hazardous working conditions;¹⁰

4. Substantial change in working conditions;¹¹

5. Unreasonable reduction in pay;¹²

6. Accepting a better job;¹³

7. After being given the choice by an employer between being terminated, furloughed, or laid off and replacing another worker, the worker has elected to accept a termination, furlough, or layoff;

8. Violation of an employment contract;¹⁴

9. Discharged without the employer informing the worker or the division;

10. Physically or mentally unable or unqualified to do the work;

11. Refusing to work overtime without reasonable advance notice;

12. Asked to violate the law;

13. Involuntary retirement; or

14. Quitting due to personal harassment not related to job performance.

The off the job use of not medically prescribed intoxicating beverages or controlled substances or the on the job use of not medically prescribed intoxicating beverages or controlled substances may be reason for a full award but only if:

1. The worker has declared to the division that he is addicted to intoxicating beverages or controlled substances;

2. The worker has substantiated the addiction by a medical statement issued by a physician or has substantiated the completion, or ongoing participation in, a treatment program;

3. The worker presents to the division a program provided by an approved private or public facility or by an alcoholics anonymous program (Note that there are time frames involved); and

4. No prior award has been given under the immediately above provision(s) within the last five (5) years. (Note that an employer may give notice to the division in the event an ex-employee does not participate in a program.)

PROCEDURE

Upon receipt of a claim, the Division of Labor notifies all interested parties of the claim. The interested parties are allowed twelve (12) days from the date of mailing the notice of the claim in which to present any additional information pertinent to the claim. The information must be post-marked or received by the Division of Labor within twelve (12) calendar days from the date of mailing. A deputy then issues an opinion and determines the validity of the claim. His decision sets forth findings of fact, conclusions of law, and an Order. The Division then promptly provides all interested parties with copies of the deputy's decision.¹⁵

Any interested party that is dissatisfied with the deputy's decision may appeal that decision and obtain a hearing covering any issue relevant to the disputed claim. The initial appeal is to a hearing officer designated by the director of the Division and must be post-marked or received by the Division generally within fifteen (15) calendar days from the date of notification of the decision of the deputy. The hearing officer has the power and authority to call, preside at, and conduct hearings. The hearing officer then makes decisions on each relevant issue raised, including findings of fact, conclusions of law, and an Order. The Division of Labor then provides all interested parties with copies of the hearing officer's decision.¹⁶

Any interested party who is dissatisfied by the hearing officer's decision may appeal that decision and obtain administrative review by the Industrial Claims Appeals Office. The appeal must be post-marked or received by the Division generally within fifteen (15) calendar days from the date of notification of the decision of the hearing officer. Upon petition to review by an interested party, the Industrial Claims Appeals Panel may affirm, modify, reserve or set aside any decision of the hearing officer on the basis of the evidence in the record previously submitted in the case. The Division then promptly provides all interested parties with copies of the Industrial Claim Appeals Panel's written decision and Order in each case.¹⁷

The deputy hearing officer or Industrial Claim Appeals Panel, may, on his or its own motion reconsider a decision within a twelve (12) month period subsequent to the date of decision when it appears that an apparent procedural or substantive error has occurred in connection with the claim. Any interested party who is dissatisfied by the decision that is issued as a result of reconsideration may appeal that decision.¹⁸

Evidence and requirements of proof conform, to the extent practical, with those in civil non-jury cases in district courts in the State of Colorado; however, when necessary to do so, in order to ascertain facts affecting the substantive rights of the parties to the proceeding, the person or persons conducting the hearing may receive and consider evidence not admissible under normal evidentiary rules, if such evidence possesses probative value, commonly accepted by reasonable or prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and should be noted in the record. The person or persons conducting a hearing must give effect to the rules of privilege recognized by law, and may exclude incompetent and unduly repetitious evidence. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available but upon request, the party requesting is given an opportunity to compare the copy with the original.¹⁹

A full and complete record is kept of all proceedings in connection with the disputed claim. All testimony at any hearing upon a disputed claim is recorded but may not be transcribed unless the disputed claim is presented for further review. If necessary, the Industrial Claims Appeals Panel may listen to the recorded testimony of a hearing on a disputed claim prior to rendering a decision. Remember, the Industrial Claims Appeals Panel may affirm, modify, reverse, or set aside any decision of a hearing officer on the basis of the evidence in the record previously submitted in the case. Consequently, the Industrial Claims Appeals Panel will base any decision they make upon the transcript that was made during testimony before the hearing officer and will generally not consider any additional evidence.

Actions, proceedings, or suits to set aside, vacate, or amend any final decision of the Industrial Claims Appeals Panel or to enjoin the enforcement of any action, proceeding, or suit to set aside, vacate, or amend may be commenced in the Court of Appeals of the State of Colorado by any interested party, including the Division. Any such action, proceedings, or suit, must be commenced by filing in the Court of Appeals, within 20 days, a Notice of Appeal, together with a Certificate of Service showing service of a copy of the Notice of Appeal on the Division and all other parties who appeared in the administrative proceedings. The Industrial Appeals Panel's decision may be set aside only upon the following grounds: (a) that the Industrial Claims Appeals Panel acted without or in excess of its powers; (b) that the decision was procured by fraud; (c) that the findings of fact do not support the decision; (d) that the decision is erroneous as a matter of law.²⁰

CONCLUSION

The unemployment compensation laws of the State of Colorado are filled with exceptions, and the applicability of these exceptions may vary substantially as the facts vary from case to case. It is appropriate to contact an attorney to discuss the facts in unemployment cases that you are involved with. Very often, it will take a short period of time for an attorney to prepare an employer's case so that the employer's account will not be charged for benefits attributable to the claimant's employment.

¹ C.R.S. 8-73-108(5)(e), 2002.Back
² Insubordination includes, but is not limited to: Deliberate disobedience of a reasonable instruction of an employer or an employer's duly authorized representative, refusal or failure to obtain, maintain, or renew licenses, certifications, credentials, conditions, or other professional designations which are necessary to permit the claimant to perform a job, failure to keep in good standing with the union because of nonpayment of dues, or repeated acts of agitation against employer working conditions, pay scale, policies, or procedures; except that orderly action on the part of an employee or through union negotiation shall net be so considered if such action does not interfere with work performance. C.R.S. 8-73-108(5)(e)(VI), 2002. Back
³ Such includes, but is not limited to: Mistreatment of patients in a hospital or nursing home; serving liquor to minors; selling prescription items without prescriptions from licensed doctors; immoral conduct which has an effect on worker's job status; divulging of confidential information which resulted or could have resulted in damage to the employer's interests; failure to observe conspicuously posted safety rules; intentional falsification of expense accounts, inventories, or other records or reports whether or not substantial harm or injury was incurred; or removal or attempted removal of employer's property from the premises of the employer without proper authority. C.R.S. 8-73-108(5)(e)(VII), 2002. Back
⁴ "Controlled substance" is defined in C.R.S. 12-22-303(7). C.R.S. 8-73-108(5)(e)(VIII) - (IX.5). Back
⁵ In determining whether or not work has been performed in a careless or shoddy manner, the division shall consider the length of time the worker has been performing the work satisfactorily and industry standards for such work. No work shall be considered careless or shoddy that comes within the area of reasonable mistakes and errors normally made by workers engaging in similar work. C.R.S. 8-73-108(5)(e), 2002. Back
⁶ Transportation shall be the responsibility of the worker; if, however, in the opinion of the division, it would have been unreasonable to require the worker to continue in employment with his same employer at a new job site substantially less accessible or substantially more distant form the worker's residence than the site at which he had worked, benefits shall not be denied because of his refusal to continue in employment at the new site. C.R.S. 8-73-108(5)(e)(XXI), 2002. Back
⁷ The determination of whether or not an individual has failed to participate in or complete an approved program of corrective action to deal with an addiction shall be the responsibility of the division. In making such a decision, the division may consider extenuation circumstances for the individual's failure to participate in or complete the approved program of corrective action which would justify a decision not to disqualify the individual from receiving benefits, but only if the individual presents a program of coercive action in accordance with sub-subparagraph (C) or subparagraph (IV) of paragraph (b) of subsection (4) of this section. the only extenuating circumstances which may be considered by the division shall be whether the individual suffered an illness not related to the addiction or received incapacitation injuries in an accident or whether the death of an immediate family member of the individual occurred which contributed to the failure of the individual to participate in or complete the program of corrective action. The burden of proof that an extenuation circumstance existed lies with the claimant. C.R.S. 8-73-108(5)(e), 2002. Back
⁸ C.R.S. 8-73-108(4), 2002. Back
⁹ If the health of the worker or the worker's spouse or dependent child has caused the separation from work, the worker, in order to be entitled to a full award, must have complied with the following requirements: Informed the worker's employer in writing, if the employer has posted or given actual notice of this writing requirement, of the condition of the worker's health or the health of the worker's spouse or dependent child prior to separation from employment and allowed the employer the opportunity to make reasonable accommodations for the worker's condition; substantiated the cause by a competent written medical statement issued by a licensed practicing physician prior to the date of separation from employment or within a reasonable period thereafter; submitted himself or herself or the worker's spouse or dependent child to an examination by a licensed practicing physician selected and paid by the interested employer when so requested by the employer prior to the date of separation from employment or within a reasonable period thereafter; or provided the division, when so requested, with a written medical statement issued by a licensed practicing physician. C.R.S. 8-73-108(4)(b)(I). Back
¹⁰ In determining whether or not working conditions are unsatisfactory for an individual, the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, the distance of the work from his residence, and the working conditions or workers engaged in the same or similar work for the same and other employers in the locality shall be considered. For the purposes of paragraph (c), "hazardous working conditions" means such conditions, as are determined by the division to exist, that could result in a danger to the physical or mental well-being of the worker. In any such determination the division shall consider, but shall not be limited to a consideration of the following: The safety measures used or the lack thereof and the condition of the equipment or lack of proper equipment. No work shall be considered hazardous if the working conditions surrounding a worker's employment are the same or substantially the same as the working conditions generally prevailing among workers performing the same or similar work for other employers engaged in the same or similar type of activity. C.R.S. 8-73-108(4)(c), 2002. Back
¹¹ A change in working conditions being substantially less favorable to the worker, but requiring a worker to work a different shift shall not be considered a substantial change in working conditions unless such requirement would be a violation of seniority rights which entitle the worker to shift preferential, but in any such case the burden of proving such seniority rights shall rest upon the worker. No change in working conditions shall be considered substantial if it is determined by the division that the conditions prevailing after the change are those generally prevailing for other workers performing the same or similar work. C.R.S. 8-73-108(4)(d), 2002. Back
¹² In determining whether or not there has been an unreasonable deduction in the worker's rate of pay, the division shall consider, but shall not be limited to a consideration of, whether or not the reduction in pay was applied by the employer to all workers in the same or similar class or merely to this individual, the general economic conditions prevailing in the state, the financial condition of the employer involved, and whether or not the reduction in wage was agree to by other workers employed in the same or similar work. C.R.S. 8-74-108(4)(e), 2002. Back
¹³ This provision applies to workers in the building and construction industry under certain circumstances set forth in C.R.S. 8-74-708(4)(f)(I), 2002. Back
¹⁴ The worker must have exhausted all remedies provided in such written contract for the settlement of disputes before quitting his job. C.R.S. 8-74-108(4)(h), 2002. Back
¹⁵ See C.R.S. 8-74-102, 2002. Back
¹⁶ See C.R.S. 8-74-130, 2002. Back
¹⁷ See C.R.S. 8-74-104, 2002. Back
¹⁸ See C.R.S. 8-74-105, 2002. Back
¹⁹ C.R.S. 8-74-106(1)(f)(II), 2002. Back
²⁰ C.R.S. 8-74-107, 2002. Back


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