The Texas Workforce Commission (TWC) begins new procedure for two conflicting determinations

by James Ezell

One of the more common questions regarding unemployment benefits has to do with receiving two (or even three) seemingly conflicting determinations from TWC on the same claimant. One might say, “We can pay you benefits”, and another may say, “We cannot pay you benefits.” They are usually mailed on the same day or within a few days of each other. Based on feedback from our members, TWC has changed two of its procedures on mailing conflicting determinations, in hopes of relieving some of the confusion.

Under the old system, you might have wondered whether the claimant was going to be paid benefits, because the determinations seem to contradict one another. The old rule still applies — one “cannot pay” determination still trumps any other “can pay” determination. The first change is that new language was added to the determinations. Determinations that say, “We can pay you benefits” have added to them: “if you meet all other requirements.” It’s not ideal language, but at least it’s a start on working with the Commission to make its rulings clearer.

Currently, a common example of two conflicting determinations occurs when an employee who is either terminated or quits and is not coming back files for benefits. TWC will make a decision on whether to pay benefits based on the reason the person is no longer employed, called the separation determination. The other determination is based on the reasonable assurance that districts must assure employees that they will have employment in the next term after a regularly scheduled break. This is where the confusion arises. Districts are often confused why they receive this second determination that says “can pay” with language about the base period wages and the claimant no longer having reasonable assurance. In this case, if the separation determination says “fired/quit – we cannot pay you benefits”, then there is nothing more you need do unless the claimant appeals and requests a telephone hearing. The determination about base period wages simply means the school wages can be used to calculate benefits “if you meet all other requirements.”

The determinations read the exact opposite when a claimant files for benefits over a scheduled break. The separation determination says “can pay” because the claimant was not fired and did not quit; they are simply between school terms. However, the base period wages determination says “cannot pay”, because the claimant is returning when the break is over. This is where your letters of reasonable assurance protect your district. Beginning this winter break, TWC has implemented their second change  to eliminate the confusion of two conflicting determinations. If claimants file for unemployment over a scheduled break (be it winter or summer), then TWC will no longer mail the second “can pay” determination unless that person has had a final separation from work, as in quitting or getting fired. In other words, if any of your employees who are returning after the break file for benefits this winter or summer, then all you should receive is one determination that says, “cannot pay —base period wages. You have reasonable assurance of returning to work.” Of course, claimants can always appeal this if they are, in fact, not returning to work, so be watchful for appeal notices in your mail.

Because these changes are new to TWC, they may take a while for the details to be sorted out. If you have any questions or suspicions that an employee is receiving benefits to which they are not entitled, call James Ezell at 800.482.7276, extension 6258.