Unemployment Insurance, Baltimore Shutdown Edition

The following information may be useful for readers who live or work in or near the scenes of recent disturbances in Baltimore. By reading this, you do not become my client.  I might be suing you, and so I don’t want to become your attorney by you reading this. Statutes cited are from the Maryland Unemployment Insurance Law, Md. Code Ann. LE § 8-101 et seq.

1) If a worker loses her job because the business got burned down, can she get unemployment in MD?

Maybe. In general employees who lose their job “through no fault of their own” per the general language of § 8-102(c) are eligible if otherwise qualified and not disqualified for other reasons. Losing one’s job due to arson is an example of this, unless the worker purposefully or, perhaps, negligently burned or allowed to be burned her place of employment.

2) If a worker loses her job due to the curfew, can she get unemployment in MD?

Maybe. The curfew is a strong public policy in Baltimore City; people are being held in Central Booking for violating it right now (April 30). The question is very fact-specific. A bar might have to shut down if its customers cannot walk the street or its workers commute in or out. On the other hand, night-shift work is often 10PM-6AM, and the curfew might not affect those workers directly. Most workers are permitted to commute under the curfew, but curfew might interrupt other services necessary to the business or to getting to work (transit interruptions.)

3) If I get locked up, can I get unemployment?

Maybe, but it’s doubtful. While you are locked up, you cannot get unemployment for multiple reasons, most specifically because you are not “able, available and actively seeking work” while a jail or correctional facility is preventing you from working. If you get locked up and released, a lot depends on what led to the lock up and what happened after.

Whether getting locked up is either a form of “misconduct” (8-1002or a “voluntary quit” depends on the details. The Unemployment Insurance Division has opined that the mere fact of incarceration, without later conviction, does not constitute a “voluntary quit” from employment, provided that the worker notifies the employer. Lansinger v. Baltimore County Fire Department, 1305-BR-82. Whether workers locked up in Central Booking with dubious access to communications, per recent reports, would be excused from not contacting their employer immediately is debatable.

The other issue is whether getting locked up constitutes “misconduct” under § 8-1003 or, by analogy, related §§ 8-1002 or 8-1002.1 To effectuate a misconduct disqualification, an employer must fire a worker as a disciplinary response to misconduct, which is “a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, or on the employer’s premises.” Hollenbaugh v. Whitcraft Transmission 1101-BR-85 If the firing is not the result of a disciplinary choice, or it is not “connected with the work”, it does not constitute a basis for a misconduct disqualification. The first duty of the worker, however, is to show up for work. The issue then becomes whether one’s misconduct that led to the arrest is sufficiently connected to the work, through the risk of arrest and schedule interruption, to constitute “misconduct connected with the work.” Since riot – the common-law charge under which many people have been charged or arrested in Baltimore – carries no maximum penalty, one who commits riot probably risks arrest, high bail ($500,000.00 in some recent cases) and indefinite incarceration in a way that constitute an act of misconduct connected to the work.

4) If I get fired for what I put on Facebook about the demonstrations, can I get unemployment?

Maybe. It’s illegal for an employer in Maryland to demand the passwords to social media accounts such as Facebook. However an employer is at liberty to read whatever is open to be read, and may take offense and even fire a worker for online (or non-online commentary.) The right of the employer under at-will employment to fire a worker is a separate question from whether a worker’s online activities constitute a transgression or dereliction connected to the work.

If your job relates to public safety, public health or administration, might be a good idea to run your actual and proposed social media feed by your own attorney before you make commentary.

5) What if I cannot get work for a while in the face of this unrest?

Unemployment lasts up to 26 weeks, depending on worker eligibility. Under some circumstances, workers may be eligible for extended unemployment benefits that are funded in part by Congress.

6) What if I have more specific questions about my eligibility?

You need to consult with an attorney. Some attorneys are working pro bono in the aftermath of the recent unrest. I cannot take on much pro bono work myself in my Montgomery County practice, but I would be happy to help pro bono callers get to pro bono resources in Baltimore and the surrounding area.

 

DLLR: Prison inmates received unemployment

Baltimore Sun, March 7, 2015:

The audit of the Division of Unemployment Insurance, which was released Friday, found that the agency did not periodically review whether people getting unemployment benefits were incarcerated, had the same address as others also getting benefits, or were DLLR employees. In a sampling, auditors found that four incarcerated people were paid about $17,700 in benefits between June 2012 and December 2013.

I am surprised that it was not much more, especially after counting people who are only locked up for very short periods while they are getting benefits. $17,700 is about 40 weeks of max benefits or little less than 2 beneficiaries maxing out on 26 weeks of benefits over 18 months out of a total Maryland population of perhaps 4 million adults. The minimum UI unit is a week of benefits; not everyone gets the maximum payment in a UI week, but this is not massive fraud or overpayment.

Unemployment and Severance Pay: Watch Out

Workers who receive severance pay are generally disqualified from receiving unemployment benefits for the period over which the severance accrues. This is true whether the severance is paid in a lump sum or in the payment method by which regular salary or wages were paid.

However, this is not the trap.

The trap is that severance is itself not subject to unemployment taxes; employers don’t pay premiums to the UI Division for severance. Severance is subject to income taxes and FICA, but not to UI taxes.

Why does this matter?

A worker who receives severance may fail, particularly if the severance period is lengthy and if the worker is in a higher-income field where jobs pay well but are scarce, to earn 10 times her weekly benefit amount in UI-taxable wages during the applicable benefits year as required by statute. In practice, someone on severance can earn out her severance, become eliglble for unemployment and then be disqualified.  Further, if the worker contacts the UI Division for unemployment benefits during severance, it may work as a Catch-22: the worker has established a benefits year during which no benefits are payable (due to severance), then may be “gotcha-ed” out of a more favorable benefits year due to the lack of earnings.

The problem is that UI Division publications encourage workers to apply for benefits immediately upon becoming unemployed, whether they are getting severance or not. For some workers, that advice is counter-productive, or at least deserves closer review and additional advice from legal counsel. Someone receiving severance is “unemployed”, but just disqualified under most circumstances. There is no provision to “fix” a poorly-chosen benefit year; it must start from the first claim/application for UI benefits.

Bottom line: if you or your client may be getting severance, don’t apply for UI benefits without first undertaking careful, detailed analysis of what the eligibility requirements are for that worker not in theory, but in practice.

Mostly good news from Bureau of Labor Statistics on unemployment

The December 2013 Bureau of Labor Statistics report indicates that unemployment in most states and in the US as a whole has fallen slightly. The US as a whole stands at 7.0% rate of seasonally adjusted unemployment, while Maryland has improved from 6.7% to 6.4%. Surprising low unemployment rates under 6% apply in Kansas and Oklahoma. North and South Dakota continue to have the lowest unemployment rates in the nation, driven largely by the petroleum industry.

To compare, unemployment in 2000 nationwide was 4.0% and in 2006 was 4.6%; it reached 9.6% in 2010; see the BLS historical data on unemployment for comparison.

Anti-fraud Bulletin from Maryland DLLR Unemployment Insurance Division

This bulletin is two years old but is still valid.

Buncom artists abound and they do not exempt the unemployment appeals process from their scamtastic ways. One scam is to present a bogus website as if it were an actual unemployment benefits application portal, with or without “disclaimer” at the bottom. DLLR cited the website “Unemployment Help Center” (no link as I don’t want to give buncombe artists any traffic) as a high-profile offender.

The full bulletin from 2011 is at http://www.dllr.state.md.us/whatsnews/uibogussite.shtml.

A question I have is whether there may actually be attorneys who are engaging in bunco. Attorneys have been known to set up fake “support groups” and “information centers” with poor or no disclosure of the law office backing of the site in matters such as mass chemical and asbestos tort claims and sexual assault lawsuits against cruise ship companies docking Florida. The small dollar amounts make me skeptical, but it could be happening somewhere.

Unemployment News: Extended Benefits HALT Nationwide

CNN Money, December 27, 2013:

Michelle Marshall is one of the 1.3 million long-term unemployed Americans who is losing her jobless benefits.

Marshall, 56, has been out of work for a year, since she lost an administrative assistant job that paid her $44,000 per year.

….

But Marshall will stop getting these checks next week.

That’s because Congress failed to extend the recession-era program when it passed a budget deal last week.

I normally do not “get political” on this blog, as this is a law practice and not a political consultancy. That stated, many of this law office’s current and recent clients will suffer with the termination of extended UI benefits in Maryland.

We aren’t out of the woods yet, notwithstanding some improvements. I hope I live long enough to see once again the economy of the second Clinton presidential term, and to see my unemployment practice shrink in the face of a strong economy with near-full employment.

How to check your Maryland Unemployment Appeal Status Online – IMPORTANT UPDATE

UPDATE: I (Godfrey) regret to report that while the telephone numbers for the contacts at the Board of Appeals and the Lower Appeals Division are available at the link below, the link no longer provides a search portal for Maryland unemployment appeals.  We are keeping the page up for archival purposes. 

__________________________________________________________________

The following people need to know how to check the status of a Maryland unemployment appeal.

1)  Employers and Claimants who have filed an appeal to the Lower Appeals Division

2)  Employers and Claimants who have received a notice of appeal to the Lower Appeals Division.

3)  Employers and Claimants who have received a favorable Benefits Determination at the Claims Specialist level.  If you found out that you have prevailed, you might assume that it’s all over.  WRONG, some of the time.  You might be facing an appeal at the last minute from an opponent who did not cc: you on the appeal, and the notice might come late or not at all by US Mail.  Accordingly, if you think you have prevailed, you should check to see whether your opponent has filed an appeal twice or three times a week until 30 days have passed since you got the Benefits Determination.  (I know, it’s a 15-day deadline: trust me, check for a month anyway.)

4) Attorneys representing any party in an unemployment or collateral proceeding with “skin in the game” (i.e. standing, technical or substantive) as to the disposition.

5) Witnesses for any party to an unemployment appeal.

To check for an unemployment appeal, you should click the following link and then add in the 7-digit appeal number or the 9-digit Social Security Number or other federal Taxpayer Identification Number of the Claimant.

New Maryland Unemployment Premium Rates Announced

Per the October 16, 2013, Daily Record, unemployment insurance premiums for Maryland businesses will drop down to their lowest statutory rate bands, i.e. from .3 to 7.5 percent of the taxable wage base, currently $8,500.00 per worker per annum for most workers.  Governor O’Malley opines that many businesses will realize an 86% reduction in premiums from 2012 to 2014, though his figures are not self-evident.

To what extent the reduction of premiums represents workers who have simply run out of eligibility due to exhaustion of benefits or a lack of a taxable wage base period over the last two+ years is unclear.  Many workers have simply given up, and it’s easy to believe that many workers will suffer displacement in the aftermath of the federal shutdown (now ended.)  While most federal workers cannot get unemployment during the furlough, many workers who depend on the federal government (contractors, food service workers near federal enclaves, retailers with cash-tight customers, etc.) in suburban Maryland and throughout the state may be eligible for unemployment as a result of federal furlough job losses.  While some spending will return when federal workers get their back pay, some of the damage is not merely deferred to later spending but outright lost.  Time will tell.

If I quit a McJob, because it sort of stank, does that make problems for my unemployment benefits in Maryland?

Maybe.

I am not your lawyer, and don’t want to appear to give you legal advice or inadvertently give you, as a non-client, advice.

Quitting any new job before or while you are on Maryland unemployment – even one that you don’t value or think is “for you” – may be a “voluntary quit” under section 8-1001 of the Maryland Unemployment Insurance Act.  A voluntary quit is normally a complete bar to unemployment benefits until the worker gets rehired and earns 15 times his or her weekly benefit amount, unless an exception applies.

If the quit is not truly voluntary as regard management (i.e. “quit or be fired”), that may make § 8-1001 not apply.  If the worker has good cause, defined as compelling circumstances in the job itself (not in the worker’s life but in the job) making a quit necessary, that may sometimes provide a complete affirmative defense if proven.  If the worker has valid circumstances (imperfect good cause, compelling personal circumstances or a very limited category of military spouse relocation circumstances) that necessitate a quit, those circumstances may allow benefits after a relatively short penalty period.

None of these defenses have within their contemplation “well it was just a [deleted expletive] not-really-for-me job.”  If you have a question about this, you should contact an attorney.

I am not telling you what to do, how to interpret what you have already done, or how your specific circumstances and facts fit within this law.  You should print out this post, take it to your Maryland attorney (which I am not) and have her or him identify to you how accurate she or he thinks it is and how these provisions of law apply to you in your circumstances.  Do not make any decision based on the foregoing, except to consult competent Maryland legal counsel.  Call a Maryland attorney and get legal advice in a law office (which I have, but which this blog is not.)

Did you see my suggestion to call a Maryland attorney to get advice? I hope I wasn’t being too subtle.