Regular UC is similar to an insurance policy; the worker has to put in enough to draw out later. A claimant must have worked long enough and earned enough within a certain recent period of time, and the earnings must be spread out in certain ways. The “base period” is the first four calendar quarters of the last five complete calendar quarters before the week of benefit application.1  The wages earned during the base period, subject to a statutory maximum, determine a claimant’s weekly benefit amount (WBA).2  The agency issues a Notice of Monetary Determination to the claimant and base-period employers; the Notice can be reconsidered if in error.

There are two state statutory requirements for base-period wage sufficiency: (1) a minimum earnings requirement;3  and (2) total base period wages of at least one and a half times the amount earned in the highest calendar quarter of the base period.4  This “high-quarter ratio” requirement is a historical leftover from earlier statutory revisions. The result is that some workers need only the statutory minimum in the base period to be eligible (if their wages are spread among quarters), but others can be found ineligible for having insufficient wages, even though they earned several times the minimum, because their wages were concentrated in a single quarter. As a result, many with sporadic employment are shut out completely from UC. Unfortunately for a large sector of the working population, the requirement that wages be spread out in the base period has been held constitutional.5

• 1La. R.S. 23:1472(4), (7).
• 2La. R.S. 23:1592.
• 3La. R.S. 23:1592(A).
• 4La. R.S. 23:1600(5).
• 5Estelle v. Eysink, 2014-0108 (La. App. 4 Cir. 08/06/14); 147 So. 3d 1136.

Monetary determinations are often wrong because a claimant’s earnings may be under-reported or miscalculated. Review the notice with your client. Find out (1) the amount generally earned per pay period both in the base period and since; (2) how many times your client filed for UC during and since the base period and to what end (you can check the client’s online account, too); (3) whether base period wages are truly the client’s and have been correctly calculated; and (4) whether any employers or earned wages have been excluded from the base period.

In the event of errors, there are some possible means to increase the WBA:

• Supply missing earnings documentation. If earnings were not reported, your client may also want to provide the documentation to the Social Security Administration. If the client does not have any documentation, you can ask the agency to investigate the employer. You can also supply an affidavit or other evidence (e.g., purchase receipts for supplies, texts or other communications indicating work locations or dates, etc.).
• If it would make a client eligible to count wages when earned rather than when paid, the agency can shift wages from one pay period to another.1  This often shifts a paycheck from one quarter to another because paychecks are usually issued about two weeks after the relevant work period.
• The client may still be eligible on an earlier claim (e.g., regular benefits were exhausted and the client didn’t file for extended benefits, or the client was previously disqualified on the merits but should now be requalified with new earnings).
• If the client has recent earnings that are not in the base period, filing a new claim in the next calendar quarter (or even later). This drops the first quarter in the prior claim and adds a new quarter, which may result in monetary eligibility in the future.

• 1La. R.S. 23:1598.

In addition to monetary and other eligibility issues, the LWC reviews the circumstances of job separation (for each job in the base period) and makes a determination of qualification or disqualification. The agency solicits information and documentation from both the claimant and the employer. Some employers will have provided the agency with the separation notice that provides a “full explanation” of the cause of separation.1  A not-uncommon query from clients is whether employers can be held liable for untrue statements made in the UC claim process. The defense of qualified privilege applies to untrue and defamatory statements in this context; an employer is liable only if it can be proven that the employer knew that the statements were false, recklessly disregarded their truth or falsity, or was negligent in failing to ascertain the truth.2

Base-period employers have 10 days to protest a former employee’s UC claim.3  An employer who fails to timely respond is deemed to have abandoned its right to appeal, and the agency is not supposed to consider a late response unless the employer shows good cause. If your client qualifies for UC but the employer appeals, be sure to challenge any untimely employer response.

Once a decision is made—there’s no statutory deadline—the agency issues a Notice of Qualification or Disqualification to the claimant and base-period employer. The Notice must include reasons and may be contested by either party, but by not the agency. Having multiple employers in the base period means multiple notices, each of which, if negative, require separate appeal. Sometimes a claimant’s appeal covers more than one adverse notice but the agency only dockets one appeal; usually the agency’s appeals staff will correct the situation if you ask.

Both federal and state law require that benefits be promptly paid upon any initial determination that UC is payable (whether made by the local office, an ALJ, the Board of Review, or a court), even if the opposition appeals.4  You can contest unreasonable delays or suspension of benefits pending appeals taken against your client.

• 1La. R.S. 23:1576 asks employers to file with the LWC within three days of a separation.
• 2See, e.g., Nolan v. Jeff. Par. Hosp. Serv. Dist. No. 2, 11-291 (La. App. 5 Cir. 3/13/12); 90 So. 3d 1178.
• 3La. R.S. 23:1625.
• 442 U.S.C. § 503(a)(1); La. R.S. 23:1635; see also Cal. Dep’t of Hum. Res. Dev. v. Java, 402 U.S. 121 (1971).

La. R.S. 23:1601(2) disqualifies a claimant who is found to have been discharged by a base-period or subsequent employer for “misconduct connected with his employment.” The statutory definition of “misconduct,” a list of certain acts or omissions added in 1990, is more restrictive than prior jurisprudential definitions. If taken literally, and applied blindly and by rote, it might effectively preclude most folks from unemployment. Don’t deny help to your client because of it! Remember that the UC law is remedial in nature and must be interpreted in the claimant’s favor.1

Furthermore, the circuits have taken divergent paths when interpreting the present version of the statute. Some expressly interpret the definition of “misconduct” in light of pre-amendment jurisprudence. Others have taken a more restrictive approach. Unless and until the situation is resolved by the Louisiana Supreme Court, be mindful of this issue in deciding whether or not to appeal a district court decision.

Regardless of the circuit, parse the statutory definition carefully because the agency tends to apply it—and tends to encourage the courts to apply it—in an extremely overbroad manner. For example, the statutory definition refers to a “violation of policy,” but only of only certain types of policy; the agency tends to ignore the qualifier and erroneously posit that any policy violation—no matter how trivial or inadvertent—is disqualifying misconduct.

Even if the client’s alleged behavior or omission might meet the statutory definition, the employer has the burden to prove disqualifying misconduct with competent evidence. Thus, even if the agency disqualified your client at application, your client should still win if the employer fails to participate in the subsequent appeal hearing or if the only evidence against your client is incompetent evidence such as hearsay.

Finally, even if you are in an “unfavorable” circuit, when you are parsing the “misconduct” definition in La. R.S. 23:1601(2) and applying it to your client’s facts, successful arguments from prior jurisprudence might still help your client win. The case law is extensive and varied. Be sure to remind any adjudicator of the law’s remedial purpose, while highlighting any favorable circumstances. Some successful arguments or themes that could help if relevant to your client’s facts are:

• The client did not know or understand that policy alleged to have been violated.
• The misconduct was not directly connected with the job.
• The employer’s reason for discharge was something other than the alleged misconduct.
• The totality of circumstances should be considered.
• Your client might have acted in good faith, not intending to harm the employer.
• A single, isolated incident contrasts with your client’s otherwise blameless history.
• A “hot-headed” response to provocation is excusable.
• Poor judgment or simple human negligence are not disqualifying.
• Poor work performance resulted from a simple inability to meet job standards rather than deliberate misconduct.
• There was a reasonable basis for an action or inaction (e.g., an emergency).
• Your client was following common practice or a supervisor’s directive.
• The misconduct was caused by factors beyond a worker’s control (e.g., sickness, childcare failure, transportation emergencies).

• 1See, e.g., Banks v. Administrator, 393 So. 2d 696 (La. 1991); Charbonnet v. Gerace, 457 So. 2d 676 (La. 1984).

Substance abuse allegations constitute a special case. For UC to be denied following discharge for substance abuse, the employer must prove behavioral effects of alleged intoxication under usual evidentiary standards. Where discharge is based on allegedly positive drug test results, however, alleged test results cannot be considered unless the testing was done pursuant to a written substance abuse rule or policy and performed under certain conditions.1  Even if the statutory requirements are satisfied, if the employer’s test violated its own policies, the test results should not be considered. Many employers fail to present competent (e.g., non-hearsay) evidence.

Refusal to take a drug test required by a proven employer policy is not necessarily misconduct. Refusal on valid constitutional grounds should not result in disqualification. Finally, if an allegedly positive test result was the reason given for discharge, the agency must apply the standards concerning drug testing and cannot use the general misconduct provision to let the employer off the evidentiary hook.

• 1La. R.S. 23:1601(10)(a).

Employees who leave jobs face an uphill battle and usually need your help to get UC benefits.

Employees who leave part-time or interim work to protect full-time or regular employment are protected from disqualification.1  Employees who leave a job with a new employer not yet in the base period, when the job pays less than their UC benefits, can’t be disqualified for quitting.

Otherwise, your client must show “good cause attributable to a substantial change made to the employment by the employer.” In quit cases, claimants have the burden of proof. Because of the agency’s employer bias, it can often help it you can show your client tried to correct a situation before quitting.

In determining “good cause,” a court should use a standard of reasonableness as applied to the average person, not the supersensitive. Dissatisfaction with initially-agreed upon working conditions is not generally considered good cause for leaving. The agency typically construes failure to try to work out job disagreements as unreasonable, so if your client objected before quitting, bring that out or explain why not.

A change in significant work conditions such as work schedules or pay, when imposed unilaterally by the employer, should meet the “good cause” standard unless the employee has agreed to the change. A change in job duties alone is unlikely to meet the standard. It’s the rare person who actually “agrees” to work more hours or receive less pay, but the agency typically construes failure to immediately quit as implied “agreement” with the change. So, bring out any objections made by your client, their limited options, and any other factors negating “agreement” to counter this agency bias.

Discriminatory or unsafe treatment uncorrected by an employer can meet the “good cause” and “substantial change” requirements because an employee is entitled to expect a workplace that complies with applicable legal standards. That your client filed an internal grievance or a complaint with an external agency is helpful but not necessary evidence.

Adverse health reactions resulting from the job or an on-the-job injury don’t necessarily need medical records or proof of causation, but such evidence can help.

• 1La. R.S. 23:1601(1).

In the case in which the quit is actually compelled by the employer rather than voluntary (i.e. constructive discharge), the burden of proof shifts to the employer. Employers often send workers home “to be called later,” then falsely claim that they quit. Similarly, an employee who is forced to resign in lieu of discharge or who resigns to avoid being discharged has not voluntarily quit. In these situations, the employer must prove misconduct in order to disqualify the employee.1

• 1Wood v. La. Dep’t of Emp. Sec., 632 So. 2d 899, 902 (La. App. 2 Cir. 1994).

Many workers get jobs through temporary staffing agencies. A temporary employee working for a staffing firm is disqualified (i.e., deemed to have voluntarily quit) if (1) “[a]t the time of hire,” the staffing firm advised the employee to report for reassignment at the conclusion of each assignment and that UC benefits may be denied for failure to do so; and (2) the employee failed, without good cause, to contact the firm for a reassignment at the conclusion of the previous assignment.1

• 1La. R.S. 23:1601(1)(b).

An administrative appeal is heard by an administrative law judge (ALJ) within the Appeals Tribunal.”1  However, the agency may contract with the State’s Division of Administrative Law (DAL) to conduct your client’s hearing or hire an ALJ from elsewhere. After identifying the parties and the evidence, ALJs typically cover a predictable set of questions that depend on the issue noticed for hearing.

• 1La. R.S. 23:1628, et seq.

Telephone hearings are now the norm and have their pros and cons relative to in-person hearings. Your client has the right to request an in-person hearing, but such a request is likely to be denied given the agency’s tight budget and resistance to making exceptions. Support any request for an in-person hearing with evidence of a compelling reason. Moreover, missed ALJ hearings easily happen with telephone hearings. Your client can ask for rehearing, but the time to do so is shorter than the appeal period. If appealing, you can also ask for a remand for a new hearing.

Claimants’ right to a fair hearing is protected by federal and state law,1  and agency rules setting forth hearing procedures must be followed.2  The traditional elements of constitutional due process must also be provided. Your clients’ rights include the right to adequate notice of the issues, the right to view exhibits before the hearing, the right to subpoena witnesses and evidence, and the right to cross-examine adverse witnesses. You or your client should request a copy of the hearing office file before the hearing; it is free and will be e-mailed upon request. The agency isn’t currently required to mail administrative decisions to a legal representative.

The notice itself may raise due process concerns. Claimants often seek help with hearings at short notice because agency rules don’t require extensive advance notice. You can ask for a postponement and may need to in order to get time to gather and submit evidence for your client. In addition, notices don’t give much detail about the issues to be addressed at the hearing. Because adequate notice of the issue is constitutionally required (though a client may waive inadequacy of notice), lack of detail might give grounds for postponement or for evidentiary objections at the hearing. The ALJ is also precluded from addressing issues not contained in the notice of hearing.3

Additional challenges may arise through the conduct of the hearing itself. At the hearing, strict rules of evidence are not followed, but the ALJ’s decision must be based on sufficient competent evidence.4  Hearsay, though admissible, is not competent evidence.5  Hearsay may be used for corroboration. Make appropriate evidentiary objections on the record. An objection may remind an ALJ that certain evidence may not be relied on, and it should keep a court from finding that you have waived the objection.

Clients who handle hearings pro se often may make poor appeal records. If your client comes to you after the hearing but before further agency appeal or while that appeal is pending, you might be able to intercede in time to get a remand for new hearing. Focus on factors that indicating that your client likely did not have a fair hearing. Limited English proficiency is one such factor. Another might be client assertions that the ALJ excluded or prevented the presentation of relevant documents or witnesses or acted as an advocate for the employer by objecting to the claimant’s evidence or prompting the employer. Because this is a common occurrence, give credence to your client’s statements about such conduct. A detailed affidavit from your client could be good supporting evidence.

• 142 U.S.C. § 503(a)(3); La. R.S. 23:1629(B); see also Schexnider v. Blache, 504 So. 2d 864 (La. 1987).
• 2See LAC 40:IV:109, et seq.
• 3See Daniel v. Wal-Mart Assoc., Inc., 2003-0441 (La. App. 1 Cir. 12/31/03), 868 So. 2d 137; Barber v. Administrator, 95-770 (La. App. 3 Cir. 1995), 664 So. 2d 844; Banks v. Administrator, 393 So. 2d 696, 699 (La. 1981), Murray v. City of New Orleans, 517 So. 2d 1200 (La. App. 4 Cir. 1987); see also Randle v. Administrator, 499 So. 2d 488 (La. App. 2 Cir. 1986) (employer not entitled to remand to prove different reason for discharge).
• 4Banks, 393 So. 2d 696.
• 5DeJean v. Adm’r, Off. of Emp. Sec., 04-327 (La. App. 3 Cir. 9/29/04); 883 So. 2d 493; Schlesinger v. Administrator, 583 So. 2d 100 (La. App. 3 Cir. 1991); Cole Oil & Tire Co., Inc. v. Davis, 567 So. 2d 122 (La. App. 2 Cir. 1990); French v. Whitfield, 561 So. 2d 977 (La. App. 4 Cir. 1990) (direct contradictory testimony by employee cannot be overcome by hearsay evidence from another employee).

After an ALJ decision, claimants have two options: timely request reopening/new hearing or timely appeal to the Board of Review (BOR), a group of political appointees who may not even be lawyers.

Aggrieved employers can also appeal and sometimes send new evidence to supplement their case presented at hearing. Typically, they fail to copy the claimant, and the agency will not give your client a copy of the employer’s appeal or any new evidence turned in by the employer, unless you ask for it. In that situation, object that this violates the law and due process. If the BOR wants to consider new evidence, it is required to have a good reason for reopening (i.e., not just to give the employer a second chance to present a better case) and to have a new hearing for all parties to address this evidence. The BOR decision becomes the final agency decision, which may be appealed to state district court.

Untimely appeals are a common problem. Clients may fail to update their postal or e-mail address, and their mail may not be delivered even if they do. However, don’t give up just because your client has missed a deadline—determine where the fault lies. The agency’s position will usually be that peremption applies and that the right to appeal is extinguished at the end of the time period for appeal. However, courts have recognized that a claimant may rebut the presumption that a decision was actually mailed on the date it was said to have been mailed or present evidence that a notice was misleading or that the agency committed fraud or was otherwise at fault.1  Your client’s online claim records might show e-mailed notices bounced back or that the LWC has used an address gone stale because your client was no longer filing for benefits. There is no statutory obligation for an claimant to update an address if no active claim is being pursued.

If you are representing a client, make sure that appeals are filed timely, or, for best results, do it yourself. Often multiple appeals need filing at the same time, leading to the possibility of confusion or omission. This often happens when a client had multiple employers in the base period or when a client is hit with overpayment notices. There are various ways to file an appeal, the best being any way you can confirm receipt and timeliness.

• 1See, e.g., Bailey v. Cajun Insulation, 453 So. 2d 237, 241 (La. 1984); Jones v. Whitfield, 529 So. 2d 885 (La. App. 4 Cir. 1988); Doescher v. Administrator, 353 So. 2d 388 (La. App. 4 Cir. 1977); see also Harding v. Raising Canes USA L.L.C., 10-320 (La. App. 5 Cir. 11/23/10), 55 So. 3d 837; Hughes v. La. Power & Light Co., 98-1007 (La. App. 5 Cir. 3/10/99), 735 So. 2d 44; cf. Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009) (presumption of mailing requires sufficient evidence of record that letter actually mailed).

If your client has ever applied for unemployment benefits, this could be a problem now or a potential problem you can help avoid. As required by federal law, Louisiana has a process to detect, establish, and recover overpaid benefits.1  The agency may find an error on its own, through a federal audit, or through a third-party complaint. The prescriptive period for collection is currently 5 years (10 for fraud), with generous interruptions allowed.2  The U.S. Department of Labor has performance standards for state recovery efforts and requires states to pursue all means of collection. Clients who get a Notice of Overpayment must timely appeal in order to seek waiver of collection when one is available. The Notice should include a total amount and the week(s) overpaid and indicate whether or not the repayment is being sought due to fraud.

• 1La. R.S. 23:1740, et seq.
• 2See La. R.S. 23:1713(C)(2); La. R.S. 23:1601(8)(b); LAC 40:IV:369, et seq.

If an appeal is timely filed and waiver is not expressly prohibited by the law authorizing the original benefits payment, the issue of waiver of collection should be automatically considered at the hearing. The appeals staff may fail to send out the waiver form ahead of a hearing; that failure can be grounds for postponement or remand for new hearings. Clients interested in seeking waiver should also try to document their expenses, obligations, and limited resources. Only agency rules, not the statute, require supporting documentation. If a client’s testimony was undisputed, agency denials for lack of documentation should be challenged. Denial of waiver on that type of technicality is contrary to the remedial purpose of the UC law.

Waiver should be granted when fraud is not involved, the claimant was “without fault,” and recovery would “defeat the purpose” of the benefits already authorized or would “be against equity and good conscience.”1  The agency’s usual tendency is to find claimants at fault in any way possible. Be prepared to vigorously advocate for your client on this issue. ALJs often wrongly fault claimants for the agency’s subsequent reversal of initial qualification decisions or blame claimants for not submitting documentation of expenses when the claimant’s sworn testimony about them is uncontested. Getting debts waived is a huge benefit, so vigorously pursue that relief unless your client admits fraud.

Fraud overpayments, which constitute a very small percentage of overall benefits paid nationally, require the agency to prove intentional misrepresentation or concealment of a material fact. A finding of fraud has more serious consequences for your client. Waiver of repayment and avoidance of penalties are not options. If you are contesting the fraud allegation, submit a completed waiver form and supporting documentation prior to the ALJ hearing.

• 1See La. R.S. 23:1713(B); LAC 40:IV:371.

Once a debt is final (i.e., administrative and judicial review have been exhausted or never taken), the agency has several collection options:

• Offset from future claims payable (which often happens without written notice, to the puzzlement of those who may have forgotten a long-ago overpayment notice or who are the victim of agency error)
• Civil action
• Offset from state income tax refunds
• Treasury Offset Program (offset from federal benefits)

If your client did not get the agency’s original notice of debt through no fault of their own (e.g., the agency sent the Overpayment Account Establishment Notice to a stale postal or e-mail address) and thus had no timely opportunity to contest the alleged debt, your client has been denied due process, which should enable you to get collection suspended and have an opportunity to effectively contest the debt and/or seek waiver.