UHC

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Telephone Hearings: 
a. Types of telephone hearings
Be sure to follow the instructions in your hearing notice about how to participate in the hearing. Your hearing notice will tell you that you have been assigned one of the following:

i. WebEx conference call - Most telephone hearings will be set up using WebEx, a conference call system. You will be asked to call a 1-800 number and then enter the attendee code provided in the hearing notice.
ii. 1-800 toll free number plus your phone number – You may be asked to call a toll free 1-800 number to start your hearing. If so, you will be provided a 1-800 number to call then you must provide a phone number where the ALJ will call you back. You must call the 1-800 number ten minutes before the hearing start time.

b. Information about telephone hearings
Once you have phoned in for the hearing, you will participate in a conference call with the other parties and witnesses involved. You will hear their testimony, and they will hear you and your witnesses’ testimony.
You do not need to be in the same place as your witnesses during the hearing. Be sure to give your witnesses instructions on how to call in for the hearing.
Hearings held by telephone follow the same procedure and format as hearings which are held in person. The ALJ will develop a full and complete record of the hearing whether it is held by telephone or in person. The hearing record is composed of the audio recording of the hearing and the exhibits the ALJ admits into the record. If your hearing is scheduled by telephone, OAH will mail numbered copies of documents to you called exhibits. The ALJ may admit (include) some or all of these exhibits into the hearing record. It is important that you review the exhibits before the hearing and have them with you during the hearing.

 
 
Recent Decision Granting Benefits!!!!!!!!!!!!!!!!!!1
 
 

On October 5, 2011, GILBERT D. GALINDO petitioned the Commissioner for review of an Initial Order issued by the Office of Administrative Hearings on September 7, 2011. Pursuant to chapter 192-04 WAC this matter has been delegated by the Commissioner to the Commissioner's Review Office. Having reviewed the entire record and having given due regard to the findings of the administrative law judge pursuant to RCW 34.05.464(4), we do not adopt the Office of Administrative Hearings' Findings of Fact or Conclusions of Law. We instead enter the following.

The testimonies offered by claimant as well as the interested employer are hardly good examples of clarity. The following is what we find to have occurred, based on the parties' vague, elusive, or incomplete answers to the questions asked by the administrative law judge.

Claimant was employed as a comfort adviser/salesperson by the interested employer, Eclipse Heating & Cooling, LLC (“EHC”), from September 1, 2010 to June 30, 2011.

Between May 4 and June 7, 2011, EHC assigned twenty-three customers to claimant, and he worked on thirteen of those assignments and missed the other ten. See Exhibit 6, p. 3. Claimant's reasons for missing the assignments were that the cell phone provided by EHC malfunctioned and that he did not receive the “leads.”

On June 7, 2011, claimant was involved in an argument with a coworker regarding a customer, during which the coworker told claimant to “go fuck yourself.” Thereafter, one of the owners of EHC, Ty Zeller, intervened and instructed claimant to stay away from the office until the situation was taken care of.

Claimant did not return to the office nor did he work on any assignments after the June 7, 2011, incident. He attempted to contact Mr. Zeller, but was told that Mr. Zeller was not available. He also attempted to contact the other owner of EHC, Jay Winters, but to no avail. EHC retrieved the company truck assigned to claimant on June 12, 2011, and subsequently terminated him effectively June 30, 2011.

Claimant was ready, able, and willing to immediately accept any suitable work, and was actively seeking work during the weeks at issue.

Is claimant disqualified from benefits pursuant to either RCW 50.20.050(2)(a) orRCW 50.20.066(1)?

Is claimant eligible for benefits pursuant to RCW 50.20.010(1)(c)?

We are given the ultimate responsibility to make our own “independent determinations based on the record and [have] the ability and right to modify or replace an [administrative law judge's] findings, including findings based on witness credibility.” Smith v. Employment Sec. Dep't, 155 Wn. App. 24, 35 n. 2, 226 P.3d 263 (2010) (citing RCW 34.05.464[4] and Regan v. Department of Licensing, 130 Wn. App. 39, 59, 121 P.3d 731 (2005)) (emphasis supplied); see also Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 404-406, 858 P.2d 494 (1993); In re Chandler, Empl. Sec. Comm'r Dec.2d 954 (2010). In this case, having considered the entire record before us as well as all factors bearing on witness credibility, we find and hereby conclude that the testimony given by claimant is more credible than the testimony by the interested employer.

In cases involving a claimant's separation from employment, we are required to determine the actual cause of the separation. See Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385, 392-93, 687 P.2d 195 (1984); Smith v. Employment Sec. Dep't, 55 Wn. App. 800, 802, 780 P.2d 1335 (1989). In determining the cause of the separation, we have customarily sought to identify the “moving party” in the separation. See, e.g., In re Millholland, Empl. Sec. Comm'r Dec. 1272 (1975). In the majority of cases, the parties to a separation agree as to the nature of the separation, and their characterization of the separation proves to be correct. In determining the nature of the separation, we consider the parties' characterization, but are not bound by it, since we must consider all of the facts related to the work situation. See, e.g., Penick v. Employment Sec. Dep't, 82 Wn. App. 30, 39, 917 P.2d 136 (1996); In re Amie, Empl. Sec. Comm'r Dec.2d 593 (1980).

The specific question before us in this case is whether claimant's decision to stop reporting for work constitutes a voluntary quit. In Bauer v. Employment Sec. Dep't, 126 Wn. App. 468, 108 P.3d 1240 (2005), the court ruled that there can be no constructive quit within the context of Title 50 RCW. In other words, a claimant cannot be found to have voluntarily quit pursuant to RCW 50.20.050 simply because he or she engaged in termination-triggering conduct. Instead, the court concluded that a voluntary quit requires evidence that the claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment.Id. at 475 (citing Vergeyle v. Employment Sec. Dep't, 28 Wn. App. 399, 402, 623 P.2d 736 (1981)). Thus, if a claimant did not intend to quit, the case must be adjudicated as a discharge pursuant to RCW 50.20.066.

Here, we must apply these general principles to claimant's failure to report for work. Pursuant to the decision in Bauer, the mere failure to report for work does not constitute a voluntary quit absent evidence of an intent to quit. However, the failure to report for work may constitute a voluntary quit if a claimant is specifically warned that the failure to appear at a certain period of time will result in termination. In such cases, the claimant's voluntary choice, intentionally made and with knowledge of the consequences, caused the job separation. SeeVergeyle, 28 Wn. App. at 402; In re Wedvik, Empl. Sec. Comm'r Dec. 1107 (1974); In re Hadley, Empl. Sec. Comm'r Dec.2d 553 (1979).

In this case, claimant stopped reporting for work. However, there is no evidence that claimant intended to quit when he stopped attending work. Moreover, claimant was not specifically warned by EHC that the failure to report for work on a certain day or at a certain time would result in termination, which might show an intent to quit. In the absence of evidence of intent, we cannot conclude that claimant voluntarily quit pursuant to RCW 50.20.050. See Bauer, 126 Wn. App. at 475. Accordingly, the separation in this case shall be adjudicated as a discharge pursuant to RCW 50.20.066.

As claimant was discharged, this case is adjudicable pursuant to RCW 50.20.066(1), which provides for disqualification for unemployment benefits if a claimant has been discharged for misconduct connected with his or her work. Misconduct is defined at RCW 50.04.294(1) and (2). The burden of establishing misconduct rests on the employer. In re Verner, Empl. Sec. Comm'r Dec.2d 617 (1980); In re Hutcheson, Empl. Sec. Comm'r Dec.2d 268 (1976). The burden is met when misconduct is established by a preponderance of evidence. See generally Yamamoto v. Puget Sound Lumber Co., 84 Wash. 411, 146 P. 861 (1915).

Misconduct specifically includes repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so. RCW 50.04.294(2)(d). “Repeated and inexcusable absences” means repeated absences that are unjustified or that would not cause a reasonably prudent person in the same circumstances to be absent. Previous warnings from the employer are not required, but the repeated absences must have been the immediate cause of the discharge. WAC 192-150-210(3).

Although issued prior to the enactment of RCW 50.04.294 defining misconduct, certain Washington appellate court decisions contain helpful guidelines for this case. For example, in Shaw v. Employment Sec. Dep't, 46 Wn. App. 610, 731 P.2d 1121 (1987), the claimant was late for work 14 times over a 15-month period of time. However, the final instance of tardiness which precipitated the employer's decision to discharge claimant was for a good reason (i.e. a power outage). Given these circumstances, the court held that claimant was not discharged for work-connected misconduct. Id. at 615.

Here, claimant's absences from his assignments during May and early June were due to the malfunction of the employer-provided cell phone. On June 7, 2011, claimant was instructed by Mr. Zeller to stay away from the office until the situation with the coworker was resolved. Claimant's absence from work after June 7, 2011, was a direct result of Mr. Zeller's instruction. Thereafter, claimant attempted to follow up with the owners of EHC, but to no avail. Under these circumstances, we must conclude that the final instance of absence precipitating EHC's decision to terminate claimant was justified and excusable. Accordingly, work-connected misconduct has not been established pursuant to RCW 50.04.294(2)(d) and WAC 192-150-210(3).

As claimant was able to, available for, and actively seeking work during the weeks at issue, he is not ineligible for benefits pursuant to RCW 50.20.010(1)(c).

Now, therefore,

IT IS HEREBY ORDERED that the Initial Order issued by the Office of Administrative Hearings on September 7, 2011, is REVERSED on the issue of job separation. Claimant is not disqualified from benefits pursuant to RCW 50.20.066(1). The Initial Order is AFFIRMED on the issue of availability. Claimant is not ineligible for benefits pursuant to RCW 50.20.010(1)(c) during the weeks at issue. Employer: If you are a base year employer for this claimant, or become one in the future, your experience rating account will be charged for any benefits paid on this claim or future claims based on past wages you paid to this individual. If you are a local government or reimbursable employer, you will be directly liable for any benefits paid. Benefit charges or liability will accrue unless this decision is set aside on appeal. See RCW 50.29.021. If you pay taxes on your payroll, any charges for this claim could be used to calculate your future tax rates. Notice to Claimant: Your former employer has the right to appeal this decision. If this decision is reversed because it is found you committed misconduct connected with your work, all benefits paid as a result of this decision will be an overpayment. State law says you will not be eligible for waiver of the overpayment, nor can the Department accept an offer of compromise (repayment of less than the total amount paid to you). The benefits must be repaid even if the overpayment was not your fault. See RCW 50.20.066(5).
 
 
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Washinton Unemployment News
 
People who receive unemployment benefits in the state of Washington might be affected by the federal government’s shutdown.
The state’s Employment Security Department processes unemployment claims, and its staff is largely paid by federal dollars.
On Tuesday, the department mailed temporary layoff notices to roughly 1,700 staff members.
According to Communications Director Sheryl Hutchison, the agency has enough money to keep running through the week, but it’s not clear what will happen if the shutdown continues past Friday.
That puts the 80,000-90,000 people who receive unemployment checks from the state in limbo.
“People across the state rely heavily on these benefits, in some cases they have been on them for quite some time because of the situation with the economy, so we absolutely understand the pain this is causing,” said Hutchison.
It costs the department about $250,000 a week in employee salaries to process unemployment claims, according to Hutchison. That doesn’t include overhead.
According to David Postman, spokesman for Governor Jay Inslee, the state will do everything it can to make up for those lost federal dollars. But “there is no big pot of money in state government that can cover these things in the long term,” he said.
During past government shutdowns, the state has stepped in to cover costs, and was later reimbursed by the federal government. 
According to Postman, the state has no assurances from Congress that the federal government will repay the states.
The one piece of good news is that the pool of money used to pay out unemployment benefits is not affected. It's in a trust fund and will continue to available during the the government shutdown.
If you are receiving unemployment benefits, the Employment Security Department recommends that you continue to monitor the department’s website for updates.
 
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The Seattle Times’ Monday editorial calling on Congress to extend unemployment benefits has received some heavy online traffic. Obviously, this issue hits a nerve for many of you out there who are searching for work or know someone who is. Here is an excerpt from the editorial:

In Washington state, at least 28,000 job-seekers so far have lost a critical financial lifeline. Many have put this money immediately into their local economies. It’s how they have afforded basic necessities such as rent, gas, groceries and utilities…
Without an extension, thousands more throughout Washington will continue to lose emergency federal assistance each week after their regular state benefits run out at 26 weeks.
Workers looking for jobs beyond that period now make up nearly 30 percent of the state’s unemployed population. There is an average of three applicants for every job opening.

There’s good reason for lawmakers to return from recess and re-start this debate. According to aJanuary Quinnipiac University poll, 58 percent of respondents support continuing this financial lifeline for those who’ve exhausted their state benefits.
Share your thoughts with us in the form below.
On Wednesday, Politico reported on new efforts by some Senate Republicans to get more members of their caucus on board with extending jobless benefits. One of the ideas being floated would prevent recipients from double-dipping into disability and unemployment funds. Another is to cut off aid after applicants get a job offer. Democrats should listen and negotiate a compromise.
Here in Washington, I’d like to know why you care about this issue. Some readers have already weighed in. (Check out this letter to the editor.) Are you unemployed and struggling to find work after 26 weeks? How does this federal aid help your household or your local community? How long do you think benefits should be available? How should Congress pay for it?
Share your thoughts in the form below. Please leave your first and last name, city of residence, email and phone number. Contact information will not be publicly posted and is for verification purposes only.