The economic relief efforts surrounding COVID-19 have left many terminated and furloughed employees feeling anxious and confused. We’re here to help. After listening to this episode you’ll know the ins and outs of Unemployment Benefits in North Carolina during the COVID-19 pandemic. In this episode of The Walking Papers, Van Kampen Law attorney, Lana Tigri, discusses eligibility requirements for unemployment benefits, what can disqualify an applicant, how the appeal process works, and frequently asked questions regarding COVID-19 and unemployment benefits.
When it comes to eligibility requirements for Unemployment Benefits the employee must be unemployed due to no fault of their own, and they must have earned sufficient wages to establish a claim. (02:54)
The passing of the CARES Act in North Carolina has modified certain statutory requirements, for example: excluding the provision that required a recipient to be actively seeking work if they were unemployed due to COVID-19. Also, the benefit amount you’re eligible to receive has expanded from previously established limits. (03:32) If you’re either an independent contractor or are self-employed, you are also eligible to receive what’s called Pandemic Unemployment Assistance.
We’ve discussed eligibility, but what conditions could make you ineligible? Lana stresses: “if you’ve only been working at your job for a short period of time and as a result, you’re not able to establish…sufficient earnings, then you’re not going to be eligible for benefits. Another thing that happens a lot of times is individuals are laid off for what their employers deem misconduct or poor performance.” (06:11)
Employers have a financial incentive to avoid paying Unemployment Benefits claims, therefore it’s common for an employer to claim an employee was terminated for “poor performance” when in fact, the employee has no negative performance record or disciplinary history. In such cases, Tigri tells us an individual has the option to appeal a decision denying benefits. However, it’s important that this process be completed correctly, so Lana recommends speaking with an unemployment attorney prior to submitting your appeal.
“You really need to be clear and concise when you’re stating a reason that you think you’re entitled. It’s going to need to be for legal reasons, such as, “I had no negative performance evaluations despite my employer claiming that I was fired for performance. I was terminated only days after I reported concerns about the lack of safety equipment that’s being provided at my job…You need to put forth some evidence to show that you weren’t, in fact, terminated because of poor performance or misconduct or something that’s going to disqualify you for receiving those benefits.” (9:25)
Other common questions clients have include, “what if I refuse to go back to work because of COVID-19 and health-related concerns?” Unfortunately, the answer is maybe; the Division of Employment Security will consider factors including age and health conditions. “Must I pay taxes on Unemployment Benefits?” Yes, benefits are treated as wages, so they will be taxed accordingly.
The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.
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Intro: 00:00 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid and counter measures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.
Robert Ingalls: 00:46 Welcome back to the Walking Papers podcast. I am Robert Ingalls, and today I am here with attorney Lana Tigri of Van Kampen Law. Today, we’re going to be talking about the timely topic of unemployment benefits. In light of the COVID-19 pandemic, as of May 4th, unemployment claims in North Carolina have passed one million, with at least 20% of the state workforce having applied for benefits. Now, on the best day at the Division of Employment Security, decisions for unemployment benefits are made slowly. The backlog created by the pandemic has the decision process grinding to a crawl. Today, we’re going to cover who is eligible for unemployment, what those benefits look like in light of congressional action, what happens if your claim for unemployment is denied, and other frequently asked questions about the unemployment process in North Carolina. Lana, welcome to the Walking Papers podcast.
Lana Tigri: 01:46 Thanks, I appreciate you having me on today.
Robert Ingalls: 01:49 Now, this is your first appearance on the podcast, right?
Lana Tigri: 01:52 That’s correct. This is my first time doing a podcast ever, so I’m really excited for it.
Robert Ingalls: 01:58 All right. Big time. I love it. Are you ready to jump into it?
Lana Tigri: 02:01 Yeah, go ahead.
Robert Ingalls: 02:02 So I think the big question on most people’s minds, if they’re showing up for this podcast is, am I eligible for unemployment benefits? So who is eligible? What are the eligibility requirements?
Lana Tigri: 02:14 Yeah, that’s a really good question. I think right now, a lot of people who have never dealt with the unemployment process are having to apply and figure it out at this time. We’re going to look at four different things to determine whether someone’s eligible for those benefits. The first one’s going to be that the individual must be unemployed due to no fault of their own, and that’s going to be determined by the Department of Unemployment Security. Also, I’ll be referring to that as DES during this podcast.
Lana Tigri: 02:46 The second thing is going to be that they must have earned sufficient wages in order to establish a claim. In North Carolina specifically, we’re going to look at the last two quarters of your employment, and you must have made at least $780 during that time period. Also, typically in the past, you’ve had to been actively seeking employment and also registering for the state’s job service office. But recently back in March, the CARES Act was passed. That expanded unemployment benefits and took away some of the previous requirements for receiving those benefits. So not all of the four criteria that we just discussed apply right now if you lost your job due to COVID-19.
Lana Tigri: 03:32 Specifically with the CARES Act, what that changed was, one, you don’t have to be actively seeking work if you were unemployed due to COVID-19. Two, it actually expanded on the amount of benefits that you can receive. Previously in North Carolina, you could receive $350 a week maximum. Now you’re eligible to receive federal unemployment benefits up to $600 a week on top of that $350. And then it also extended the amount of time that you could receive those benefits, so you get an additional 13 weeks that you can continue receiving the benefits if you’re unemployed due to COVID-19.
Robert Ingalls: 04:16 Okay. Say that I am an independent contractor or I’m self employed, how does that change things?
Lana Tigri: 04:23 That’s a really good question because previously, independent contractors and people who were self-employed were not eligible to receive unemployment benefits. But fortunately, Congress realized that this was a really big issue during the pandemic. And as a result of that CARES Act, now people who are either independent contractors or are self-employed, they’re eligible to receive what’s called Pandemic Unemployment Assistance under the CARES Act. This is going to apply to people who are unemployed or even partially unemployed or unable to work as a result of COVID-19. Just for some examples, if you or someone in your household’s been diagnosed with COVID-19 or if the place that you were working ended up closing because of that, and you’re unable to work from home, then you’d likely be able to receive that Pandemic Unemployment Assistance.
Lana Tigri: 05:23 Normally under the Pandemic Assistance Program, individuals can collect benefits for a maximum of 39 weeks until December 31st of 2020, so the end of this year. The only thing is that the additional $600 weekly payment of federal unemployment benefits was also applying for the Pandemic Unemployment Assistance but that ended on July 31st. At this time, you’ll just continue to receive the benefits that you would have received through your state if you are eligible for that Pandemic Unemployment Assistance.
Robert Ingalls: 06:01 All right, so we’ve been through what the eligibility requirements are. Who isn’t eligible for unemployment benefits? How do I know if I’m disqualified?
Lana Tigri: 06:11 Yeah, well, if you’ve only been working at your job for a short period of time and as a result you’re not able to establish that you’ve made sufficient earnings, as we discussed earlier, then you’re not going to be eligible for those benefits. Another thing that happens a lot of times is individuals are laid off for what their employers say is because of misconduct or poor performance. Those sorts of things are also going to disqualify you. That’s actually something that we see a good bit in our employment law practice, because we deal with a lot of cases involving retaliation or discrimination. Frequently employers fire someone who has this stellar performance record, and they say, “Oh, you had poor performance, and that’s exactly the reason that you’re being terminated.” But we start digging a little deeper, and there’s actually evidence to show that this employee made some complaint about an illegal action taking place at their work and then within a week after that they were terminated. And so it’s really a whistleblower retaliation case.
Lana Tigri: 07:27 In those sorts of scenarios, the individual who is terminated will often be denied the unemployment benefits when they initially apply. That’s because the unemployment office is going to reach out to the employer and ask for proof of why the employee was terminated. Typically, they’ll submit paperwork telling them that it’s because of those performance issues, which will make them ineligible. It’s really important in those scenarios that the unemployed individual appeal the decision denying them the benefits. The reason for that is because during that appeals process, they will have the chance to submit evidence and present it to someone acting as a judge, to show that the reason that they were terminated was actually completely outside of their control.
Robert Ingalls: 08:17 Yeah, let’s talk about that appeals process. I have put in my application, I had my initial interview, and then I received a letter saying that I was denied and that I have the right to appeal. How does that process work?
Lana Tigri: 08:31 I think this is a really important question, and the reason for that is that you have only a certain period of time that you can appeal that decision. What happens first is you’re going to get that initial letter of determination. In that letter, there’s going to be a deadline referenced by which you’re able to appeal that decision, and you’re going to need to abide by that deadline. If you don’t, then you’re not going to have a chance to appeal the decision any longer. That’s something that’s really important to keep in mind. The other thing is that when you make that appeal, it must be in writing, and it’s going to need to briefly explain why you feel that you should receive employment benefits.
Lana Tigri: 09:15 A lot of people think that this means, “Hey, I need to receive these benefits because I need to pay my rent or I need to buy groceries.” But you really need to be clear and concise when you’re stating a reason that you think you’re entitled. It’s going to need to be for legal reasons, such as, “I had no negative performance evaluations despite my employer claiming that I was fired for performance. I was terminated only days after I reported concerns about the lack of safety equipment that’s being provided at my job.” Or something like that. Something that you made a complaint about that’s illegal or maybe there was discrimination that took place at your work, things like that. You need to put forth some evidence to show that you weren’t, in fact, terminated because of poor performance or misconduct or something that’s going to disqualify you for receiving those benefits.
Robert Ingalls: 10:12 Okay, I requested the appeal, the hearing date has been set. What can I expect when I get to the hearing?
Lana Tigri: 10:19 The hearing’s going to be over the phone, and it’s going to work just like a mini trial. You can hire an attorney if you wish. And then sometimes the employer will actually be on the phone as well. During that time, there’s going to be an appeals referee who’s going to act as the judge. And that individual is going to allow you to present evidence to make your case, to show that for whatever reason the employer is contesting your unemployment benefits, you’re going to explain why you should get those benefits instead. You’ll have also the opportunity to question the employer, and then the judge will ultimately make a decision in the case. If you win the appeal, then you’re going to be entitled to receive the benefits, and that’s going to be even dating back to the time that you initially applied for those benefits. So you’re going to get the back pay plus benefits going forward.
Robert Ingalls: 11:26 I’ll interject here as well. Having practiced in unemployment and tried over 300 of these cases, I will warn you, don’t get lulled into a false sense of security. People often think that the hearing, it’s on the phone and that it’s going to be similar to that first phone screening they did. But this hearing is like a trial, like Lana said, and if you’re not prepared, you can get blindsided by the rules and the procedures of the trial. Another thing to keep in mind is the employer has been here before. They are skilled at this process, and they know the right things to say to get your claim denied. I think if you have a lot on the line and you need these unemployment benefits, I think it works in your favor to at least have a conversation with an attorney before going in there unprepared.
Robert Ingalls: 12:11 Now, Lana, I want to go through some common questions about unemployment in the age of COVID-19. Can I refuse to go back to work because of COVID-19 and health-related concerns, and then still get unemployment?
Lana Tigri: 12:29 That is a great question. And this one, we have potential clients reaching out to us all the time with this very question. It’s really tricky, so the answer is maybe. It’s going to depend on your own personal health risks and whether your employer has done a good job with taking health precautions and if they’re offering some sort of remote working options. Ultimately, if you are over the age of 65, you’re having to work in an office, or if you have medical conditions that put you at a higher risk for COVID-19, then you’re going to have a much stronger case. But if you’re a healthy, young individual, then if you’re trying to refuse to work because of these things, it’s going to be really hard for you to continue to get unemployment benefits. Something that it’s really probably going to come down to is whether or not your employer is following those recommended safety standards. If they’re not, then your refusal to work may be reasonable. It may be deemed that the place that you’re having to go back to work to is deemed to be unsuitable employment. The state at that point has the option to continue giving you unemployment benefits or to discontinue those. It’s really going to be on a case by case basis.
Robert Ingalls: 14:03 Now, tell me what you think, but I feel like that’s probably a bit of an uphill battle.
Lana Tigri: 14:03 Yeah, I would definitely agree with that. They just haven’t created a lot of laws right now that provide protections for employees, and the employers really have the upper hand in these situations. So you’ll definitely be fighting an uphill battle.
Robert Ingalls: 14:22 Yeah. And even if you appeal it, then you’re going through that process, you’re not getting unemployment while it’s under appeal. That can be very difficult on you. All right, if my job wants me to go back but is reducing my hours, can I still get unemployment benefits?
Lana Tigri: 14:37 That’s another one that it’s a maybe. There’s a chance that you could. You might start receiving them at a lower rate than you were previously. You could lose them altogether. It’s just going to depend on how your old and new wages fit into the specific formula that the state’s using for those benefits. State officials have really come out and said that people shouldn’t try to keep any return to work secret so that they can continue receiving the benefits, but instead, go ahead and continue to file your weekly certifications and report any wages that you earn. At that time, they’ll make a decision based off of your new earnings whether you’re going to get a reduced wage, or if you’ll lose out on the unemployment benefits altogether.
Robert Ingalls: 15:27 Now, what if I was furloughed and received a severance, would I still be eligible to receive unemployment benefits?
Lana Tigri: 15:34 Yes. Luckily, this is not one of those tricky questions since Governor Cooper actually issued an executive order that lets people receive unemployment benefits even if they get that severance package as part of their furlough.
Robert Ingalls: 15:51 Do I have to pay taxes on unemployment benefits?
Lana Tigri: 15:54 Yes. Unfortunately, unemployment benefits are taxed. I know a lot of people heard about the stimulus checks not being taxed, which was good news. But contrary to that, unemployment benefits are treated as wages, and so they will be taxed.
Robert Ingalls: 16:12 Now, this is one big concern lately with many daycare centers being closed. I left my job because schools and daycare facilities closed, and I had to start staying home to look after my children. Do I qualify for unemployment benefits?
Lana Tigri: 16:27 The answer for that one was going to be yes. I think it’s great that Congress have come out and done something to protect these employees, because this has been a really, really big concern for parents. Under this scenario, the state’s looking at it as a situation where the employee was essentially forced to quit due to no fault of their own, and therefore they’re going to be entitled to receive those unemployment benefits.
Robert Ingalls: 16:53 Okay. What do I do if my unemployment application has been sitting at the Division of Employment Security for months, and I still haven’t heard back?
Lana Tigri: 17:03 This one has been one that we have been seeing a lot lately. As you talked about earlier, several months ago, there were over a million applications for unemployment benefits in the state of North Carolina, so some people have been waiting for two or more months for these benefits claims to be resolved. Some people have reported having success having their claims resolved after reaching out to their state legislator to make a complaint. If you don’t know who your state legislator is, you can actually just type in a quick Google search, find my legislator NC, and it should be the first thing that pops up. And then you can just select the county that you live in, and it’ll tell you exactly who your representative is. And then you can reach out at that point and urge them to do something to make the process a little bit quicker and get the issue resolved for you.
Robert Ingalls: 17:59 Now, we saw recently that the $600 extra per week provided by the federal government has ended. What happens now?
Lana Tigri: 18:09 That’s been a great concern, and it’s really unfortunate that Congress wasn’t able to come to a decision before the benefits ended on July 31st. What’s happening right now is that Republicans and Democrats are at a standstill, they’re not really seeing eye to eye. Two different options have been proposed though. So on July 27th, Republicans proposed a stimulus package called the HEALS Act. Under that, what would happen is the $600 in extra federal unemployment benefits would be reduced to $200 until October 5th. And then after October 5th, the assistance would combine with the state’s unemployment offerings and would equal 70% of an individual’s previous wages. And then that would end on December 31st of 2020. Republicans are wanting to do this, and they’re pushing for that because they argue that 68% of employees are earning more on unemployment than they were earning when they were employed. So there’s an incentive there not to return to work.
Lana Tigri: 19:20 Now on the other hand, Democrats are… They’re really fighting hard to have those benefits continued at the full $600, on top of those state benefits. They think it’s incredibly difficult to find a job right now, which is proving to be true, and the $600 extra a week is really making a difference for families. I can’t say what’s going to happen. It’s really a developing situation. As of today, there’s been no resolution, but I’m hoping that Congress does something to continue to expand those benefits in some form or another, and that they do so quickly. Because Americans are facing joblessness and potential homelessness now because of this.
Robert Ingalls: 20:04 All right, Lana, I had one more question on unemployment before I let you go. Let’s say that I had a hearing, and I was unsuccessful in the hearing. Is there any recourse for me after that?
Lana Tigri: 20:17 There is. You actually have one other chance to appeal. There’s another higher authority appeal, and you have 10 days to submit that appeal. So you must do that in a timely fashion as well. If you have an attorney, that’s something that the attorney could help you with. If you’re denied benefits and you feel like it’s something that you’re entitled to, feel free to reach out to Van Kampen Law, and we’re more than happy to provide you with a consultation.
Robert Ingalls: 20:48 All right, Lana, thank you for joining us on this episode of the Walking Papers podcast. We look forward to having you back soon.
Lana Tigri: 20:55 Thank you.
Outro: 20:59 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com. Or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.