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).