unemployment claims in ohio akron bar association labor and employment section karen d. adinolfi,...

UNEMPLOYMENT CLAIMS IN OHIO

AKRON BAR ASSOCIATIONLABOR AND EMPLOYMENT SECTION

KAREN D. ADINOLFI, ESQ.SEPTEMBER 10, 2015

1.0 HOUR CLE

Overview – The Unemployment Compensation System In Ohio

A. Applicable Definitions1. Employer. R.C. 4141.01(A): Includes State of Ohio and all its political

subdivisions, any type of organization, including corporations, partnerships, LLCs, or associations, that had at least one employee for some portion of a day in each of twenty calendar weeks in the current or preceding calendar year.

2. Employment. R.C. 4141.01(B), Ohio Administrative Code § 4141-3-05(A): Service performed by an individual for remuneration under any contract or hire, written or oral, express or implied.

a) Independent contractors are not included in this definition. Mogg v. Ohio Bureau of Unemployment Services (1981), 2 Ohio App.3d 247, 441 N.E.2d 625.

i. “right of direction or control” is the paramount consideration.

ii. Elements to evaluate whether an individual is an employee or independent contractor, Ohio Administrative Code § 4141-3-05(B).

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Overview – The Unemployment Compensation System In Ohio (con’t)

a. Compliance with instructions as to when, where, and how worker is to perform services;

b. Particular training required by person for whom services are performed;c. Services provided are part of the regular business of the person by whom services

are being performed;d. Particular worker is required by person for whom services are being performed;e. Person for whom services are being performed hires, supervises, and/or pays the

wages of the worker;f. Continuing relationship exists that contemplates continuing or recurring work,

even if not full time;g. Set hours required;h. Devotion of full-time services required;i. Work must be performed on premises;j. Order of work dictated by person for whom services are provided;

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k. Oral or written progress reports required;l. Worker paid on regular basis, such as hourly, weekly, or monthly;m. Expenses paid by person for whom services are provided;n. Tools, instrumentalities and materials provided by person for whom services are

provided;o. Lack of investment by worker in facilities;p. Lack of profit or loss to worker;q. Person providing services not doing so for other persons at the same time;r. Person providing services does not make such services available to general public;s. Person for whom services provided has right to discharge worker; t. Worker has right to end relationship with person for whom services provided

without incurring liability pursuant to a contract or agreement.

iii. Temporary service agencies, Ohio Administrative Code § 4141-3-06.

iv. Employee leasing companies, Ohio Administrative Code § 4141-3-07.

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b) Statute contains many specific exceptions as to what constitutes “employment.” For instance,

i. Certain types of agricultural labor;

ii. Certain types of domestic service;

iii. Elected officials;

iv. Students working for a college or university in which they are enrolled;

v. Family-run businesses;

vi. Certain church employees;

vii. Federal employees;

viii. Jail inmates.

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3. “Just cause”

a) Not defined in the Ohio Revised Code.

b) Nebulous concept and difficult to define.

c) The Ohio Supreme Court has defined the term as “that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.” Irvine v. Unemployment Compensation Board of Review (1985), 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587.

d) Focus on concept of “fault.”

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B. Ohio Revised Code Chapter 4141 governs the unemployment compensation system in Ohio, along with Chapters 4141 and 4146 of the Ohio Administrative Code. 1) These sections govern eligibility determinations, yearly rate

determinations, procedures applicable to the filing and appeal of unemployment claims, and the administration of the unemployment fund, among other issues. These sections are further interpreted by decisions of the Unemployment Compensation Review Commission and court decisions.

2) A bit unwieldy if you are just looking for guidance.

3) The Ohio Department of Job and Family Services (“ODJFS”) has an on-line presence as well as telephone assistance for employers and claimants, http://jfs.ohio.gov. If you’re just looking for a quick answer, this may be the better place to start.

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http://jfs.ohio.gov/


C. ODJFS administers the claims process while the Unemployment Compensation Review Commission (“UCRC”) handles the adjudication of appeals.1) Technically, two different agencies with different missions. R.C.

4141.06 (creating a separate Unemployment Compensation Review Commission).

2) ODJFS handles initial claim filings, decisions on claims, and the payment of weekly benefits to those deemed eligible. R.C. 4141.13.

3) UCRC houses hearing officers and the formal appeal/hearing process, and only has a role when a claim is transferred via appeal from ODJFS to UCRC. R.C. 4141.06.

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D. ODJFS, along with the Ohio Treasurer, administers Ohio’s unemployment fund, which is largely funded by contributions from non-public employers doing business in the State of Ohio based on total payroll and a determined experience rate. R.C. 4141.09 (creating the unemployment fund).

E. Federal regulations also govern the administration of unemployment compensation programs, which allows for some similarities state to state.

F. There are two types of employers under Ohio’s unemployment system, and each status has some upside and some downside.

1) Contributory employers.

a) Most non-governmental employers are contributory employers.

b) Contributory employers contribute to the unemployment fund as a result of an annual assessment of a contribution rate, which is based on total payroll, fund balances, and the employer’s experience rate. Ohio Administrative Code § 4141-1-01.

c) Contributory employers are able to escape “base period” charges under certain circumstances.

i. Employee voluntarily quit without just cause

ii. Employee discharged with just cause

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2) Reimbursing employers

a) Most governmental employers are reimbursing employers. Non-profits can elect to proceed as reimbursing rather than contributory employers under certain circumstances. Ohio Administrative Code § 4141-1-01.

b) Reimbursing employers “pay as they go,” that is, they reimburse the State only for unemployment charges they actually incur.

c) As a trade-off for only paying for charges actually incurred, reimbursing employers are required to pay base period benefits for employees whose separation would otherwise be disqualifying.

i. Even if an employee voluntarily quit without just cause

ii. Even if an employee discharged with just cause

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3) Duties of all employers, whether contributory or reimbursing:

a) Maintain accurate records of all employees (whether eligible for benefits or not) as to hours worked and wages paid. R.C. 4141.18.

b) Allow inspection of these records at ODJFS’s request. R.C. 4141.19.

c) Furnish periodic reports of wages to ODJFS. R.C. 4141.20.

d) Pay contributions or reimbursements in a timely fashion, as appropriate. R.C. 4141.23 (contributions); R.C. 4141.242 (reimbursement or payment in lieu of contributions).

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Mechanics and Timeline of Filing and Defending a Claim for Unemployment Benefits

A. Definitions1) Separating employer: Employer from whose employment the

claimant separated and on which separation the claim for benefits is made.

a) Claimant must have worked at least six weeks in covered employment; and

b) Claimant must have earned at least three times the average weekly wage of prior benefit year (will change annually)

2) Base period: R.C. 4141.01(Q): First four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year.

a) 20 weeks in covered employment during the base period; and

b) Average weekly wage in 2015 of $237.00 (changes annually)

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If the claim begins between these dates: The regular base period will be:

January 4, 2015 through April 4, 2015 October 1, 2013 through September 30, 2014

April 5, 2015 through July 4, 2015 January 1, 2014 through December 31, 2014

July 5, 2015 through October 3, 2015 April 1, 2014 through March 31, 2015

October 4, 2015 through January 2, 2016 July 1, 2014 through June 30, 2015

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3) Alternate base period: R.C. 4141.01(Q)(2): If the individual does not have sufficient qualifying weeks and wages in the base period to qualify for benefit rights, the base period shall be the four most recently completed calendar quarters preceding the first day of the individual's benefit year.


If the claim begins between these dates: The alternate base period will be:

January 4, 2015 through April 4, 2015 January 1, 2014 through December 31, 2014

April 5, 2015 through July 4, 2015 April 1, 2014 through March 31, 2015

July 5, 2015 through October 3, 2015 July 1, 2014 through June 30, 2015

October 4, 2015 through January 2, 2016 October 1, 2014 through September 30, 2015

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4) Base period employer: All employers who paid wages to the claimant within the base period. Unless excused, will pay a proportional share of the benefits.

5) Benefit year: R.C. 4141.01(R): Fifty-two week period beginning with the first day of that week with respect to which the individual first files a valid application for determination of benefit rights. Knight v. Ohio Bureau of Unemployment Services (1986), 28 Ohio St.3d 8, 501 N.E.2d 1198.

6) Waiting week: first week of an allowed claim that is unpaid.


B. When an employee has suffered a separation from employment, one of his or her first moves is typically to apply for unemployment.1) Typically, applications are made on-line or via telephone. No

more in-person application or reporting.

2) The burden is not a heavy one – employees need only provide basic information and provide a reason for separation. R.C. 4141.28(B) (requiring submission of name and address of separating employer and the individual’s statement of the reason for separation); Ohio Administrative Code § 4141-27-01(A).

3) Use of technology allows claims to move along much more quickly.

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D. Once all of the information is received, ODJFS makes an initial adjudication of the entitlement to benefits R.C. 4141.28(C).1) If the separation is determined to be a discharge with just cause or

a quit without just cause, application is disallowed and a Determination of Unemployment Compensation Benefits articulating the reason for separation is issued. R.C. 4141.28(D); R.C. 4141.28(E).

2) If the separation is determined to be a discharge without just cause, lack of work, or a quit with just cause, then a Determination of Unemployment Compensation Benefits articulating the reason for separation, along with the base period dates, base period employers, weekly benefit amount, and proportional charges is issued. R.C. 4141.28(D); R.C. 4141.28(D).

3) If the claim is allowed, benefits begin to be paid immediately, whether the employer appeals or not.

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D. Either party may appeal the initial Determination within twenty-one days of its mailing date. R.C. 4141.281 (A); Ohio Administrative Code § 4141-27-09.

1) If no appeal, the Determination becomes final.

2) Claimant must appeal if the Determination is adverse to him and he wants to challenge it.

a) May not simply file a new claim based on the same separation.

b) “Res judicata” effect

3) If Determination is adverse to employer, and employer files an appeal, benefits continue to be paid to the claimant if and until the Determination is reversed. R.C. 4141.28(I).

4) The non-appealing party is provided an opportunity to respond to the filing of the appeal.

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F. If an appeal is filed to the Determination of Unemployment Compensation Benefits, ODJFS’s Redetermination Unit reviews and issues a Director’s Redetermination with the decision on the appeal. R.C. 4141.281(B).

1) ODJFS will consider evidence not previously provided from either side at this point.

2) May affirm, reverse, or modify the Determination.

3) Technically, ODJFS does not owe deference to the previous determination when considering a first appeal. As a practical matter, it probably does afford it either partial or complete deference.

4) Typically, a reversal requires some new information or clarification of information previously provided to ODJFS.

G. Either party may appeal the Director’s Redetermination within twenty-one days of the date it is issued.

1) Such appeal triggers an administrative transfer from the Ohio Department of Job and Family Services to the Unemployment Compensation Review Commission for hearing.

2) No additional information is requested of either party prior to the transfer.

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H. Either party may appeal the Director’s Redetermination within twenty-one days of the date it is issued.

1) Such appeal triggers an administrative transfer from the Ohio Department of Job and Family Services to the Unemployment Compensation Review Commission for hearing.

2) No additional information is requested of either party prior to the transfer.

a) Parties then receive a Notice That An Appeal Has Been Transferred By The Director to the Review Commission/Notice That Telephone Hearing Will Be Held. Ohio Administrative Code § 4146-5-05(A).

b) Vast majority of hearings before the Unemployment Compensation Review Commission are telephonic.

i. Some action is required or recommended once the Notice has been received.

a. Documents for telephone hearing must be submitted to the Commission and all other parties within ten days of the date of the Notice.

b. Entry of appearance by an attorney or other representative

c. Relative

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c) When to consider a representatives

i. If many witnesses and/or documents

ii. If person presenting the claim will be a witness

iii. Pending or threatened litigation or arbitration

d) Written request for in-person or after-hours hearing. R.C. 4141.281(D)(4); Ohio Administrative Code § 4146-5-05(B); Ohio Administrative Code § 4146-5-05(C).

i. Case of conflict between the two. Ohio Administrative Code § 4146-5-06(C).

ii. When would you want an in-person hearing?

a. Lots of documents and/or witnessesb. Perceive other side will have credibility issuesc. Witness has some impairment, such as a physical disability that

constrains the ability to communicate or who has difficulty with English.

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iii. Consider a request for extra time if you perceive it will be a complex hearing.

a. Hearings typically set for 45 minutesb. Request will not always be granted, but it is sometimes appreciated.

e) “Avoid dates” for hearing date submitted in writing to the Commission

i. Dates to avoid in next 60 days

ii. Update as necessary

iii. ODJFS sometimes reluctant to postpone or reschedule hearings once a hearing notice is issued and will do so only for “good cause.” Ohio Administrative Code § 4146-5-07.

a. If a conflict between hearing date and key witness’ availability, contact Commission immediately by telephone.

b. In the past, Commission only willing to postpone if key witness out of the country or undergoing medical treatment.

c. However, it does appear to be lightening up on this.

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f) Request an electronic copy the ODJFS claim file immediately

i. Gives you access to other party’s initial statements and submissions.

ii. Gives insight into ODJFS reasoning for its decision on the claim.

iii. May provide you with impeachment material.

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3) Subpoenas

a) If you want to compel the production of some document or category of documents from the other side or a third-party, subpoena them immediately.

b) If you want to require the appearance of a certain witness, subpoena that witness immediately.

c) Subpoenas must be issued through the Commission, not through an attorney or court reporter.

d) Commission will make a determination if that document or witness will be considered, even if the subpoena has been requested and/or issued.

4) Can expect a hearing to be scheduled within the next few weeks, typically sooner rather than later.

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I. A hearing date is set by the Commission and written notice is given to all parties.

1) Standard hearing method is a telephone hearing. R.C. 4141.281(D)(3).

2) In-person hearings are rare and must be requested, and the requesting party must be willing to travel to the ODJFS office closest to the claimant. R.C. 4141.281(D)(3).

3) Notice is typically given ten days to two weeks in advance of a hearing, although only seven days’ notice is actually required. Ohio Administrative Code § 4146-5-04(A).

4) At this point, exhibits must be submitted to the Commission and all parties for use at the hearing. Ohio Administrative Code § 4146-5-08.

a) Even if documents already in record, must still provide to Commission and all parties.

b) New documents not previously submitted must be submitted as soon as possible or you run the risk of exclusion.

c) Failure to provide to all parties may result in a document’s exclusion, so consider a method of delivery that affords you a record of receipt, such as an e-mail, Federal Express, or certified mail.

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J. A hearing on the record is then held in front of a Hearing Officer of the Commission. R.C. 4141.281(C)(2).1) All parties given the opportunity to attend.

a) Failure of appealing party to appear. R.C. 4141.281(D)(5); Ohio Administrative Code § 4146-7-02(J)(1).

b) Failure of non-appealing party to appear. (R.C. 4141.281(D)(6).

c) “Good cause” may excuse the failure to attend.

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2) All parties may present evidence under oath.a) Party with the burden of proof goes first.

i. In a non-discharge case, appellant has the burden of proof.

ii. In a discharge case, employer has the burden of proof, no matter which party is the appellant.

b) Hearing officer will typically assist non-represented parties. Bulatko v. Ohio Department of Job and Family Services, 2008-Ohio-1061.

c) Typically best to limit number of witnesses to two and to the most relevant.

d) Put your witness with the most important information on first, as hearing officers are quick to deem a hearing going too long or a witness to have no relevant information. Proffer if faced with exclusion.

e) Make sure facts presented at hearing are as you have previously represented them to ODJFS.

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f) Non-represented parties given opportunity to ask questions. Typically, not a helpful process.

g) Hearing officers not bound by rules of evidence, nor are they bound by the previous ODJFS rulings. R.C. 4141.281(C)(2); R.C. 4141.281(C)(3); Ohio Administrative Code § 4146-7-02(B); Rokosky v. Ohio Department of Job & Family Services, 2005-Ohio-541; Brown & Williamson Tobacco Corp., 2003-Ohio-5328; Fisher v. Bill Lake Buick, 2006-Ohio-457.

3) All parties may make a closing argument.

4) A hearing may be held in multiple sessions if there are multiple witnesses or witnesses with lengthy testimony.

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K. The Hearing Officer issues a Decision.1) The Decision will either affirm, modify, or reverse the Director’s Redetermination.

R.C. 4141.281(C)(3); Belle Tire Distributors, Inc. v. Ohio Department of Job and Family Services, 2012-Ohio-277.

2) If the Director’s Redetermination was in favor of the claimant and is reversed in favor of the employer, an overpayment order will be issued, ordering the claimant to pay back benefits already received.

a) If the separating or base period employer is a reimbursing employer, employee must voluntarily reimburse or have owed amounts deducted from a future claim or, rarely, from an Ohio tax refund. Employer has no standing to collect.

b) If the separating or base period employer is a contributory employer, outstanding amounts will be credited to the account or accounts. Reimbursement then left as a matter between ODJFS and the claimant.

3) If the Director’s Redetermination was in favor of the employer and is reversed, claimant will receive a lump sum of all benefits owed, if he has been claiming weeks of benefits during the period of disallowance.

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L. Aggrieved party has twenty-one days from the date of the Hearing Officer’s Decision to file a Request for Review by the entire Commission. R.C. 4141.281(C)(3); Ohio Administrative Code § 4146-25-03.1) Commission may either order another hearing, deny the Request

outright, or modify or reverse the Decision without further hearing. R.C. 4141.281(C)(4).

2) If a new hearing is ordered, same notice given to parties and same procedure is followed. R.C. 4141.281(C)(6); R.C. 4141.281(C)(7).

3) A different hearing officer will be assigned.

4) The vast majority of Requests for Review are denied without opinion.

5) Must file a Request for Review if you wish to file an appeal into court.

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M. Aggrieved party has thirty days to file into a court of common pleas from the date of the denial of the Request for Review. R.C. 4141.282(A); R.C. 4141.282(B).1) The standard of review is extremely narrow – in order to be reversed,

decision of the Commission has to be unlawful, unreasonable, or against the manifest weight of the evidence. R.C. 4141.282(H); Tzangas, Plakas & Mannos v. Ohio Bureau of Employment Services (1995), 73 Ohio St.3d 694, 653 N.E.2d 1208.

2) Companies and governmental entities must be represented by counsel in a court appeal.

3) Appeals into court may be filed in the court of common pleas for the county where the appellant, if the employee, is a resident or was last employed, or if an employer is a resident or has a principal place of business. R.C. 4141.282(B). If all three of these categories fall outside of Ohio, then the appeal shall be filed in the Franklin County Court of Common Pleas. Id.

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4) No new evidence is taken and no hearing held, and the court is limited to the record certified by the Commission. Abrams-Rodkey v. Summit County Children Services (2005), 163 Ohio App.3d 1, 836 N.E.2d 1.

5) Court will review the record and the briefing of the parties and make a decision on the record itself.

a) Will not re-weigh the facts that were presented to Commission or the credibility of witnesses. Houser v. Ohio Department of Job and Family Services, 2011-Ohio-1593; Tzangas, supra.

b) Can reverse, vacate or modify the decision, if the standard of review is met. R.C. 4141.282(H).

c) Must affirm the decision of the standard of review is not met. R.C. 4141.282(H).

d) Can remand the matter to the Commission for further proceedings. R.C. 4141.282(H).

i. Record deficiencies.

ii. Due process deficiencies. Howard v. Electronic Classroom of Tomorrow, 2011-Ohio-6059.

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Miscellaneous, But Important Provisions

A. Privilege and Res Judicata. 1) All information and documents submitted to ODJFS during the

claims process is for the exclusive use of ODJFS, shall not be open to the public, and shall not be used as evidence in any court action. R.C. 4141.21

2) Decision of Review Commission or reviewing court may not be used as res judicata or collateral estoppel in any subsequent proceeding, whether judicial, administrative, or arbitral. R.C. 4141.281(D)(8).

B. Unemployment benefits may not be waived, transferred, released, or assigned. R.C. 4141.32.

• Severance agreements

• Attorney seizure

• Garnishment

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