Published Date: 01/06/2014
By Pat Rountree
CAI'sAdvice & Resolution Group has received numerous calls regarding the best approach to take in responding to the reason for an employee’s separation from employment in view of the recent change in North Carolina’s unemployment law.
We advised members back in September that the new unemployment law changes included a requirement that employers provide a timely and adequate response on Form 500AB. This is the form employers receive from the NC Department of Commerce’s Division of Employment Security (DES) that requests information on the reason for an employee’s separation. The form was revised in 2012 to gather more detailed information in order to make a correct determination under law regarding eligibility for unemployment.
In the past, employers may have chosen not to respond to the request for separation information if the reason for termination would disqualify the employee for unemployment but the employer did not want to contest. There could be various reasons for taking this approach: the employer may have terminated the employee for cause but did not have sufficient documentation; the employer did not want to document reasons that may later be admissible if there were an EEOC charge; or to provide income for a long term employee who had performed well in the past, but was no longer performing, etc.
Under the new rules issued by DES (http://j.mp/913-d) there is a penalty for employers who fail to respond in a timely manner (within 14 days of the postmark on the 500AB) or fail to respond adequately. Responding adequately means completing the 500AB and providing detailed information on the reason for separation so that the DES can make a decision on the claim without having to further contact the employer.
A pattern of failing to respond timely or adequately to requests for information from DES relating to claims may be determined if the number of untimely/inadequate responses is two or more, or equal to or greater than two percent of the total requests sent to the employer or its agent during the prior year, whichever is less.
According to a recent article by Constangy, Brooks & Smith attorneys, they recommend completing the form but adding that the employer does not contest unemployment. In so doing, the employer may respond timely and adequately to avoid penalties. The DES will make their determination based on the reason for separation provided and unemployment law.
Where there is potential for an EEO charge, you may still want to consult with legal counsel on the best approach in responding on the 500AB.