May 12th, 2021 by Laura Wilson
April 27th, 2021 by Laura Wilson
Ohio Department of Jobs and Family Services (ODJFS), the state agency that administers unemployment claims and payments in Ohio, says $413.6 million in Pandemic Unemployment Assistance (PUA) overpayments were awarded last year. Nearly one in five people who applied for unemployment benefits under the PUA program have received notices from ODJFS that they were overpaid. According to ODJFS, it used reported income without verifying to get payments out quickly when PUA became available to Ohioans under the CARES Act, and only more recently has the agency started to verify income and adjust payments. As a result, amid the on-going COVID-19 pandemic many people have seen their benefits stopped and received notices that they need to pay back thousands of dollars.
Overpayment of PUA benefits to unemployment claimants who were not at fault for the improper amount and notices demanding repayment of money long-ago spent to survive the pandemic has been a nationwide issue. As a result, in December 2020, Congress passed the Continued Assistance Act and authorized states to waive the repayment if the state determines that the payment of PUA was without fault on the part of the person who applied for benefits and that repayment would be contrary to equity and good conscience. But the waiver provision is permissive. That means Ohio could choose not to waive the PUA overpayments. At this time, it is not certain that Ohio will allow waivers, but signs indicate that the state may be headed in that direction.
In mid-February State Reps. Lisa Sobecki and Jeff Crossman introduced House Bill (HB) 139, legislation that, if passed, would require the Director of ODJFS to waive the collection of certain unemployment benefit overpayments received by Ohioans through no fault of their own. This legislation is aimed at helping those who were not at fault for the overpayment by ODJFS or for those for whom repayment would cause an undue hardship.
Sobecki and Crossman recognize that many Ohioans have been struggling to pay rent and buy groceries, and many had difficulties collecting their unemployment compensation, in the first place. As Rep. Sobecki has said, “Many Ohioans can’t afford to pay back an overpayment they might have received. This isn’t the time to require those overpayments.” They argue the state should waive unemployment overpayments to protect Ohioans if the payments were received in good faith through no fault of the unemployment recipient. According to Crossman, “Forcing unemployment recipients to repay the benefits they were initially told they were rightfully entitled to only adds more insult to injury during this pandemic. In many cases, the initial delays in receiving benefits took months to begin with and created substantial hardships for people.”
In late April, ODJFS interim director Matt Damschroder testified before the Ohio Senate Finance Committee, which is considering HB 139. Damschroder explained how the state mistakenly overpaid thousands of claimants. According to Damschroder the ODJFS system was set up with an incorrect system query for the PUA program. Damschroder told the Finance Committee that ODJFS intends to release a plan on waiving overpayments sometime in May. Whether the proposed legislation requires the state to waive the overpayments of PUA or whether ODJFS comes up with its own plan for waiver remains to be seen.
In the meantime, if an unemployment claimant receives a notice of overpayment, it is possible to file an appeal. If you have questions about unemployment benefits or related issues, the attorneys at FMR are here to help.
Find out more by clicking on these links:
House Bill 139
Ohio Job and Family Services working on plan to waive unemployment overpayments
Honest PUA recipients may be forced to pay for Ohio errors in overpayments
April 12th, 2021 by Elizabeth Newman
The American Rescue Plan Act of 2021, signed into federal law on March 11, 2021, extends many of the pandemic unemployment programs and benefits created by the federal CARES Act and the Consolidated Appropriations Act of 2021. For workers in Ohio, the Ohio Department of Job and Family Service (ODJFS) which runs the unemployment program has developed a Resource Hub that contains information on available benefits and how to apply.
In Ohio, traditional unemployment compensation is available to workers who meet minimum employment and earnings requirements and are unemployed through no fault of their own. This regular unemployment compensation is generally available for up to 26 weeks. Under the American Rescue Plan Act, unemployment has been extended and expanded. Here is a summary of the expanded benefits.
Pandemic Unemployment Assistance (PUA)
The PUA program supports self-employed individuals, independent contractors and others who don’t qualify for traditional unemployment benefits. Individuals not eligible for traditional unemployment benefits may be eligible for PUA. There is no minimum income requirement for PUA. The American Rescue Plan Act of 2021 makes it possible to receive PUA for up to 79 weeks through September 4, 2021.
To be eligible for PUA, individuals must NOT be eligible for regular unemployment benefits. In addition, they must meet one of the following COVID-19-related eligibility circumstances:
• The individual has been diagnosed with COVID-19, or is experiencing symptoms and is seeking medical diagnosis;
• A member of the individual’s household has been diagnosed with COVID-19;
• The individual is providing care for a family member or member of the household who has been diagnosed with COVID-19;
• A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility is closed as a direct result of the COVID-19 emergency, and the school or care is required for the individual to work;
• The individual is unable to reach the place of employment because of a COVID-19 quarantine;
• The individual is unable to reach the place of employment because a healthcare professional has advised him or her to self-quarantine due to COVID-19 concerns;
• The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
• The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19;
• The individual has quit his/her job as a direct result of COVID-19;
• The individual was laid off as a direct result of COVID-19;
• The individual’s place of employment is closed as a direct result of COVID-19.
Pandemic Unemployment Assistance (PUA) – Expanded Benefits Eligibility for 3 New Groups
On February 21, 2021, the U.S. Department of Labor issued guidance expanding PUA eligibility to include three new groups of individuals eligible for PUA:
• Those previously receiving traditional unemployment benefits who refuse to return to work or refuse an offer of work because the workplace is not in compliance with local, state, or national health and safety standards directly related to COVID-19.
• Those who provide services to an educational institution or educational service agency and are fully or partially unemployed as a direct result of COVID-19.
• Those who are laid off or had their work hours reduced as a direct result of COVID-19.
Pandemic Emergency Unemployment Compensation (PEUC)
PEUC benefits are an extension of traditional unemployment benefits. They may be available to workers who have exhausted their regular unemployment benefits or whose regular UI claim has expired. The American Rescue Plan Act of 2021 makes it possible to receive PEUC for up to 53 weeks from April 2020 through September 4, 2021.
Federal Pandemic Unemployment Compensation (FPUC)
FPUC provides an additional $300 weekly benefit to eligible claimants in multiple programs. The most recent federal legislation extends the FPUC supplement through September 4, 2021. In Ohio, FPUC is being provided for all unemployment programs, including but not limited to those individuals receiving traditional unemployment benefits, PUA, PEUC, and SharedWork Ohio.
Mixed Earner Unemployment Compensation
The federal Consolidated Appropriations Act of 2021 created the Mixed Earner Unemployment Compensation (MEUC) program for eligible traditional unemployment claimants who also earned at least $5,000 in self-employment wages during the most recent taxable year. The program provides a supplemental benefit of $100 per week for qualifying weeks of unemployment claimed between December 27, 2020, and March 13, 2021. Ohioans who are eligible for this benefit will receive payments retroactively. The MEUC program is extended through September 4, 2021.
The American Rescue Plan also includes benefits for employers. This most recent federal legislation continues the following:
• Extends full federal funding for Ohio’s SharedWork program.
• Authorizes 75% credits to reimbursing employers for traditional unemployment benefit charges.
• Authorizes full federal funding of the first week of traditional unemployment benefits, instead of 50%.
• Extends the waiver of interest to states whose Unemployment Insurance Trust Funds require federal borrowing.
If you have questions about applying for unemployment benefits or have an issue with your unemployment award, the attorneys at Freking Myers & Reul and here to help. For more information on expanded unemployment benefits in Ohio under the American Rescue Plan, see:
Coronavirus and Unemployment Insurance: Expanded Eligibility Resource Hub
Expanded Eligibility: Frequently Asked Questions
Pandemic Unemployment Program Updates
Pandemic Unemployment Assistance (PUA) Step-by-Step Application Instructions
April 7th, 2021 by Elizabeth Newman
Liza Asbury Newman practices employment law. She handles cases of discrimination, retaliation, and harassment, as well as cases involving disputes over benefit plans, family and medical leave, and non-compete agreements. She has been named an Ohio Super Lawyers Rising Star for 2020 and 2021 in plaintiff’s employment litigation. She also has a special interest in the intersection between employment law and ERISA.
Liza is involved in the Cincinnati Bar Association as vice chair of the Labor and Employment Law Practice Group. She frequently gives talks on legal developments in her practice area to the CBA and other organizations. Liza currently coaches mock trial at Seven Hills and recently taught labor law at the University of Cincinnati College of Law.
Prior to law school, Liza worked in the language-learning field. She spent a year teaching English in France, and then worked at the University of Pennsylvania’s English Language Programs while she was in graduate school there. She holds BA and MA degrees in art history.
Outside of work, Liza enjoys birding and spending time in nature. If you’ll tolerate it, she’ll teach you how to identify trees by their bark and birds by their call. In the summer, she loves to work on her garden and ride her bike around the neighborhood. She lives in Columbia-Tusculum with her cat, Laika.
February 24th, 2021 by Laura Wilson
On March 9, 2021, the House of Representatives passed the Protecting the Right to Organize (“PRO”) Act by a vote of 225-206. If signed into law, the PRO Act would be the most significant labor law reform in decades. The bill primarily amends the National Labor Relations Act, the federal law that governs collective bargaining in the private sector. Most of these changes affect the rights of unions, but the bill also contains several important provisions that would affect employees outside of the union context.
Restoration of Collective Action Rights
Currently, an employer can require employees to sign away their rights to collective litigation of employment-related claims. These agreements typically mandate that any claims arising out of employment go to private, individual arbitration instead of court. These “collective action waivers” have had a particularly chilling effect on wage claims. Claims involving unpaid wages and overtime are often too small to bring individually, as court costs and legal fees can easily outweigh the lost wages. Wage claims are therefore far more feasible—and far more powerful—if brought together. Collective action waivers in mandatory arbitration agreements deter employees from bringing these claims by forcing them to shoulder arbitration and legal fees by themselves. This in turn diminishes the power of employees to enforce their rights as workers.
Employees challenged collective action waivers in mandatory arbitration agreements as a violation of their rights under Section 7 of the NLRA. Section 7 guarantees employees the right to engage in concerted activity for mutual aid or protection—the same section that protects the right to organize and unionize. But in 2018, the Supreme Court held that collective action waivers were enforceable in spite of Section 7 (Epic Systems Corp. v. Lewis).
The PRO Act would change that. It would ban class and collective action waivers by making it an unfair labor practice for an employer to attempt to enforce them. This reform would restore the right of employees to pool resources and band together to pursue their legal claims.
Protecting the Use of Company Email for Employee Communication
The National Labor Relations Board has gone back and forth about whether employees can use their employer’s email service to engage in concerted activity. In 2007, the Board found that employers have an overriding right to control their email services and how employees use it. In 2014, the Board changed its mind and decided that employees must be allowed to use company email during non-working time to communicate with one another about workplace issues. The PRO Act would codify this latter rule. As a result, an employer would not be permitted to discipline employees for using company email to discuss pay, benefits, and other terms and conditions of employment. This reform would make it easier for employees to communicate and organize in office and remote work settings, as well as across different shifts and locations.
The Senate has not yet set a date to vote on the PRO Act. The bill will have an uphill battle as long as the filibuster remains intact. If you would like to learn more about how the PRO Act would affect you in your workplace, please get in touch with us.
The FAIR Act (The Forced Arbitration Injustice Repeal (FAIR) Act) was recently reintroduced in Congress. If passed, this law would ban mandatory arbitration agreements, which take away the rights of workers and consumers to sue in court or take part in class-action lawsuits. It would allow employees to sue their employers in court in cases of wage theft, harassment, discrimination, or other violations of their employment rights.
Over the past several years, employers have included forced arbitration clauses in employee handbooks, incentive compensation plans, and employment agreements, aimed at preventing workers from going to court if they think their rights have been violated in the workplace. Today, roughly 60 million workers are subject to forced arbitration. Estimates are that by 2024, more than 80 percent of private-sector, nonunion workers will be subject to forced arbitration.
While employers often argue that arbitration is quicker and easier to resolve disputes with their workers, the system puts workers at a real disadvantage. Arbitration is often confidential, making it nearly impossible to track an arbitrator’s record on the decisions he or she has made. Confidentiality also protects employers from exposing their illegal actions. Arbitration rules have few legal safeguards that protect individual workers, including limits on the ability to obtain key evidence needed to prove their claims. Arbitration can also include high fees and “loser pays” rules that make it too expensive for most workers to go through the process.
According to Jeffrey A. Mittman, Executive Director of the National Employment Lawyer’s Association, forced arbitration “strips vulnerable workers of the right to enforce laws that were designed to protect them when they are victims of illegal treatment in the workplace. Forced arbitration favors employers and coerces workers into losing either their rights or their jobs.”
The FAIR Act would prohibit forced arbitration for employment, consumer, antitrust and civil rights disputes. It would keep companies from forcing individuals, workers, and small businesses to agree to be bound by arbitration before a dispute has occurred. Instead, workers would have the choice to agree to arbitration after an employment dispute arises. In addition, the FAIR Act would not affect collective bargaining agreements that require arbitration between unions and employers.
The FAIR Act has overwhelming public support. According to one national survey, 84 percent of the public supports federal legislation that ends the practice of forcing workers and consumers into arbitration. The FAIR Act is good for workers because it will ensure that they can protect their rights in court if their rights are violated at work. You can support passage of the FAIR Act by contacting your Ohio Senators and Congressional Representatives.
Employment laws covering worker’s rights are always changing. Our attorneys work constantly to stay up to date with the latest changes and are here to help workers protect their rights.
Find more information on the FAIR Act here.