Temp Agencies
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Obstacles
Temp Says He Was Told Not
To Follow Call In Procedures
Temp Says He Was
Fired From the Employer And The Assignment
Temp Agencies
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Temp
Says He Was Told Not To Follow Call In Procedures
Sometimes at the hearing, the temp says "person X told me I don't have to
call in and that I'll get a call when they have something for me." Unless person X is available to dispute this, the employer may lose the
case.
That's Why You Should Never Allow The Temp to Talk to More than Two Designated
People When They Call In Available.
With only two people taking these calls, you can control
better what is said to the temp about your call in procedures. The more people
who handle these calls, the greater the chance for miscommunication or mishap..
Second, with the high employee turnover usually found in temp agencies, you want
to ensure that the employee who spoke to the temp is still available to testify.
What you don't want is the temp to claim they spoke to someone who is no longer
with the company. In that case, it's the temp's sworn testimony against
the hearsay testimony of the employer and the temp will usually win the case.
To avoid this, put in writing that the temp will be deemed
unavailable unless they call or leave a voicemail message with person X or
Person Y. Then if they claim at the hearing that they spoke to
someone else, you can demonstrate that they did not follow the agencies
reasonable rules on keeping in touch with the employer. This also allows
you to limit the number of people you'll need to have at the hearing. Temp
agencies who must call in a bunch of witnesses are slated for trouble.
After all, someone's still got to be there to run the agency while the hearing
is in progress!!!!!
Temp Agencies
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Temp Says He Was Fired
From the Employer And Not Just The Assignment
This often happens when the temp worked on just one long
assignment and never had to call in available before.
Here's a real life example:
Temp works at agency division that caters only to client A and their affiliates.
After 18 months of working for just one client, he's fired for tardiness and
told by the agency "we can't use you at client A or their affiliates" The
temp then files for unemployment, loses the case and files an appeal.
At the appeal's hearing he explains that he never followed
the temp agency's availability rules because he was fired. The agency's
"talent manager" denies the agency fired him and says he was fired only by the
client.
If the talent manager is correct, then the temp should have
called in available each week However, the temp says "this division was
the only one I ever registered with and they cater to just one client.
When they told me they could no longer put me on assignment I knew I was fired."
At this point, the employer has nothing in writing to show the temp would be
considered for other assignments. In fact , they vehemently maintain "but we told
him if he wanted work he could always call our other divisions." The temp,
of course, denies ever hearing such. And it's now just a swearing match of
"he said" "she said." The hearing officer finds the temp was fired and had
no duty to call in. Temp wins. (The temp agency
almost never wins in a discharge unless they dare bring in the client.)
Solution
If you still intend to use the temp for other assignments, advise him in
writing that his file is being transferred to another division and he must call
them every week he's available. Also add in your letter that "Failure to call in
each week may jeopardize your right to collect unemployment benefits."
If he failed to call in after a certain time period. Send him a letter stating
your rule and informing him failure call in will result in separation. If the
temp does not call in by the deadline, send him a separation notice, note the
separation in your computer database and do not contact him for more work. If he
wants to work, simply have him come to the office in person and re-register.
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Refusing an Assignment
The Law
Evidence
NO NO’s
Obstacles To Winning
Closing Summary Arguments
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The Law On Refusing An Assignment
Synopsis
Simply put, the temp may be disqualified for any week where he refuses a
job within his pay range, travel distance, work times and skill set.
OCGA Section 34-8-195(c) provides that an individual shall
not be
deemed to be unemployed in any week such individual refuses an
intermittent or temporary assignment without good cause when the
assignment offered is comparable to previous work or assignments
performed by the individual or meets the conditions of employment
previously agreed to between the individual and the employer.
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Evidence
To prove the temp refused a suitable assignment, you need to show that the
assignment was comparable to the temp's previous assignments or that he
had previously agreed to work under these conditions.
Refer back
to the temp's original application or
to other jobs previously accepted. The application should always list the lowest
pay the claimant is willing to accept. It should also list any
restrictions on the times or dates he can work, the tasks he can't do and the
maximum distance to
travel, etc. Always write down ask exactly why the job was
rejected.
See Subpoenas
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NO NO’s
Obstacles To Winning
Many employer's fail to keep accurate records of what the refused job paid, what
the claimant agreed to or why the job was turned down.
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Separation (From the Temp
Agency)
Closing Summary Arguments
For Separation Due To Attendance or misconduct,
see Discharge.
For Quits, see
Quits
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For Separation Due To
Not Calling In
The temp is not separated if you are still calling him for assignments. To take
advantage of
the
law on failing to call in you must deactivate the temp. You should also send
a letter to the temp stating that after x date he is deemed to have voluntarily
quit. "If you wish to be considered for more assignments you must report to the
office in person and sign a form indicating you are again willing to
work. You cannot be considered for more work until you report in person and
complete the paperwork.
See
Suggested Call
In Policy
The Voluntary Quit
Hearing officers are very skeptical of temp agencies. It is well known that to remain competitive,
they must fight every claim tooth and nail. Therefore it is vital to establish your
credibility and not appear untrustworthy.
The Most Common Employer defense is that the employee
"VOLUNTARILY QUIT BY NOT CALLING IN AVAILABLE"
Temp agencies often lose because they try to have it both ways. A
claimant that "quits" cannot be considered for future assignments. And if
the claimant is called for future assignments, then obviously he never quit.
This means the employer must make a choice. Either the temp is allowed to remain
eligible for assignments, or he is separated from the company entirely.
For economic reasons, it is good that some employees remain on the roster.
For example, employees with highly sought after computer skills, should never be
removed even if they fail to meet the employer's rules and policies. However,
for the most part, those who are not
available for work
should be separated and no longer considered for other assignments. Once
removed, it is up to the temp to contact the employer and take the necessary
steps to re-register. Otherwise, the temp's eligibility will be determined on a
week to week basis and the quit disqualification will not apply. It is only when the claimant is truly separated
from the company that he'll have to earn 10 times his weekly benefit to
re-qualify for unemployment.
EMPLOYERS SHOULD NEVER USE THE WORD QUIT UNLESS:
The claimant says, writes or clearly demonstrates he is leaving the employment
relationship;
OR
You have written rules stating that "not following
all communication requirements
will constitute a voluntarily quit and may jeopardize unemployment benefits" AND
you have documented that the temp has breached your rules and has no longer been
considered for assignments.
NEVER allow the claimant to call in available after he has been separated
from the employment. Communicate in writing that the temp has quit and now must
fill out another application or re-register. (It's up to you what it means to
re-register. It could be something as simple as signing a piece of paper or as
lengthy as redoing the application.. It should always be more than simply calling in again available).
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Partial Benefits: When The Claimant Works Part
Time & Earns Below His
Benefit Amount
Synopsis
The temp may collect partial employment if the earned wages are below his
weekly benefit amount and he's working less than full time.
However, the
temp must be reasonably available for work and be working less than full time
through no fault of his own. For example, suppose a temp has a weekly
benefit amount of $200 and earned $140 a week in part time work. If
all other requirements were met, the temp could still collect $60 a week in
benefits ($200-$140).
The Law
OCGA Section 34-8-195 provides that an individual shall be
eligible
for any week in which the individual has been unemployed or
employed less than full time and has reported any deductible earnings.
Section 300-2-1-.01(7)(b) of the Rules of the Georgia Department
of Labor defines "part-total unemployment" as a week in which an
otherwise qualified individual performs services and earns wages not
exceeding the weekly benefit amount of his claim plus fifty ($50.00).
The general construction of this law holds that the claimant must be
working less than full time due to lack of work only, and it must be shown
that the claimant has made himself/herself reasonably available to the employer
for work.
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Other Availability Issues
The Law (Being Reasonably Available)
Evidence
NO NO’s
Obstacles To Winning
Closing Summary Arguments
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The Law
Synopsis
The temp cannot be out of work based on a failure to be reasonably available.
Being unreasonably unavailable can take the form of refusing assignments, not
calling in or not getting retested when told such is necessary to secure other
assignments.
OCGA Section 34-8-195 provides that an individual shall be
eligible
for any week in which the individual has been unemployed or
employed less than full time and has reported any deductible earnings.
Section 300-2-1-.01(7)(b) of the Rules of the Georgia Department
of Labor defines "part-total unemployment" as a week in which an
otherwise qualified individual performs services and earns wages not
exceeding the weekly benefit amount of his claim plus fifty ($50.00).
The general construction of this law holds that the claimant must be
working less than full time due to lack of work only, and it must be shown
that the claimant has made himself/herself reasonably available to the employer
for work.
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Evidence
Document whenever the temp does something that unreasonably restricts the work
he can get. For example: If the temp is told he needs to get
retested, document the times he was contacted and whether or not he responded.
The same goes for job refusals or requests for only odd hours, i.e. part time
work or third shift jobs, etc.
See Subpoenas
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Obstacles To Winning
Document. Document. Document. The more you document, the more likely
you'll win.
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Closing Summary
Arguments (Samples)
Separation
For Not Calling In As Required
Separation For Rule Violation (Discharge)
For Denial of Benefits Based On Failure To Call In Each
Week (No Separation)
For Job Refusals
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Separation
For Not Calling In as Required
In the instant case, the claimant should be disqualified because he quit/was
discharged for failing to call in as required.
The claimant was advised in writing that he had x day(s) to contact the temp
agency upon completion of assignment and that unemployment benefits may be
denied for his failure to do so. However, although warned in writing of such,
the claimant disregarded these rules and failed to call in within the
time required. At this point his relationship with the temp agency was terminated.
Thus, the claimant is unemployed not due to lack of work, but simply because he
failed to follow the rules and instructions of his employer. Therefore, a
disqualification is required.
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Separation For Rule
Violation (Discharge)
In the instant case, the claimant was at fault for violating a known policy.
The claimant was warned about (state the misconduct or rule violation) and told such could cause
his job to be in danger. In spite of being warned, the claimant failed to follow the rule and was terminated. The claimant
had the ability to comply with this rule and was at fault for not doing so.
Therefore, we respectfully request that benefits be denied.
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For Denial of Benefits Based On Failure To Call In Each
Week (No Separation)
In the instant case, the claimant was required to call in
once/twice a week. These rules were made specifically so the claimant could
maximize his chance to obtain work. However, the claimant never followed these
rules and at best called in sporadically. The evidence shows the claimant
clearly knew of these requirements:
(because he was told verbally and in writing) and/or
(had followed these rules on prior occasions when between assignments).
In this case, the hearing officer must simply decide who is the more credible
party.
Is it the claimant, who cannot remember who he spoke to or when he made the call,
Or the employer, who has detailed business records which show the dates of each
call and who he spoke to.
Such records are reliable because they are routinely maintained in the ordinary
course of our business and logged within hours of when the call was made. We
submit that the claimant called in on (list dates). However, he failed to call
in once/twice a week as required. Thus, the claimant is unemployed not due to
lack of work, but simply because he failed to follow the rules and instructions
of his employer. Therefore, a disqualification is required.
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For Job Refusals
In the instant case the refused a
job within his pay range, travel distance, work times and skill set. The
claimant claimant had accepted similar jobs in the past and had no legal excuse
for rejecting the assignment. Thus, the claimant is unemployed not due to lack
of work, but simply because he failed to accept work that was available..
Therefore, a disqualification is required.
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