Update on unemployment trends in Washington

The Employment Security Department (ESD) handles the initial claims and determination of benefits in Washington. Some recent changes in the unemployment statutes and regulations, found in RCW 50.29.021, have made getting benefits more difficult for employees when applying to ESD. On the other hand, recent decisions by the judges at the level of the Office of Administrative Hearings (OAH), and judges in our Superior Courts and Courts of Appeals have provided guidance on misconduct that may be helpful to employees terminated for reasons that the employer alleges are misconduct.

Changes making it harder to get benefits.

In 2015, Washington adopted a new law that assesses penalties to an employer if they do not respond, or do not respond in time, to the ESD’s request for information when a former employee files for benefits.Before the law changed, an employer might choose not to respond to the ESD request for information, either because they did not want to spend the time completing the forms, or often, because they did not want to deny the employee unemployment benefits, even if they had fired the employee for misconduct.   Previously, employers and employees might often have agreed that if an employee agreed to be terminated or agreed to quit, the employer agreed not to oppose benefits.Under the current law, any practices that could be seen as a pattern of non-response from the employer could lead to penalties with regards to their tax rate or reimbursement for overpayments. Thus more employers are now responding to ESD, even when they may not have intended to at the time of termination.

Recent trends in interpreting “Misconduct” that are good for employees.

Even if an employee violates a written policy or handbook, they may not have engaged in misconduct if they were following a common practice of the employer. A recent case in Whatcom Superior Court was upheld in an unpublished decision in the Washington Court of Appeals. In that case, the Court found that: 

• In the case of Nooksack Tribe and ESD v. Rapada[1], the Court held that the employer had not engaged in misconduct where she had reimbursements approved after the reimbursement check was processed and cashed. Even though company written policy required reimbursements to employees be approved before the checks were processed, there was testimony that reimbursements were routinely approved after the fact.
• The Court also held that even if Rapada made an error in judgment in failing to verify approval before cashing a reimbursement check, it was at most a good faith error in judgment, and not misconduct that would disqualify her from receiving benefits.

 Other recent trends in cases before the Office of Administrative Hearings indicate that the Administrative Law Judges (ALJ’s) are looking closely at whether the misconduct was a deliberate violation, or instead, inadvertence or a one-time error in good judgment. These cases are very dependent on the facts and on a good presentation of the facts to an ALJ. ALJ’s are looking for an employee that has an otherwise good work record, has not been disciplined for similar conduct in the past, and/or that can establish the context of the action, such that an action that could be misconduct would have been reasonable at the time based on the circumstances. 

Conclusion

• Contact an attorney or legal services provider as soon as you receive a finding of misconduct, or the employer appeals a finding allowing benefits. The “How to Prepare for a Hearing” pamphlet available from the Office of Administrative Hearings lists several resources for finding an attorney.
• Your employer will most likely contest your receipt of benefits even if they promised not to. While the supervisor that terminated you may have intended to keep that promise, Human Resources or upper management may have a different policy.
• Always contest any finding of misconduct, and try to establish a record at the ESD level and at the OAH hearing of any practices or circumstances that would make your actions seem reasonable to a judge.

[1] The Superior Court’s decision was upheld by the Washington Court of Appeals Div. I in an unpublished decision: Rapada v. Nooksack Indian Tribe and ESD (Div. I (unpub.), June 20, 2016).