Every time a Colorado employee separates from employment and files for unemployment insurance, the former employer has certain legal obligations under the Colorado Employment Security Act (CESA). One of those obligations is to respond to information requests from the Colorado Department of Labor and Employment (CDLE) Division of Unemployment Insurance regarding the circumstances surrounding the separation.
Employers submit this information on a Request for Facts About a Former Employee’s Employment, also known as Form UIB-290. The Division has promulgated regulations that define when monetary penalties may be imposed on employers at fault for failing to respond to these information requests.
CESA allows the Division to charge employers’ unemployment insurance accounts for improper payments from the unemployment compensation fund when the Division determines that:
The regulations define what the Division considers “timely” and “adequate” for purposes of charging employers’ unemployment insurance accounts. “Timely” is fairly straightforward. It means within the time frame given by the Division for employers to respond to the request for information.
“Adequate” is defined as information provided by an employer that is sufficient to support a determination on the issue. This is an important distinction because while many employers do timely reply to the Division, they often do so using vague or equivocal language to avoid disclosing all the circumstances of an employee’s separation. Employers may do this for numerous reasons, but generally, it is because they want the separated employee to be awarded benefits they otherwise wouldn’t be entitled to (which is a violation of CESA) or if the separation involved allegations of improper or unfair employment practices. These definitions hone in on what a legally sufficient and timely response looks like.
Takeaway for Employers
The rules further define what constitutes a “pattern of failing to respond timely or adequately”: An employer’s repeated, documented failure to respond timely or adequately to initial requests for information, taking into consideration the number of instances of failure in relation to the total volume of requests. This determination is at the discretion of the Division, but under the regulations, it is not met where the number of failures to respond during the past year is fewer than three total or less than 3% of requests, whichever is greater. Thus, employers should make their best efforts to respond timely and adequately to all requests for information from the Division or risk being found at fault and having their account charged for improper payment.
The Division’s responsibility under CESA is to determine whether a claimant is entitled to benefits by understanding whether they are unemployed through no fault of their own. Therefore, an employer’s timely and adequate provision of information is critical to the Division in making informed determinations.
Employers that need help responding to information requests from the Division or need representation in an unemployment insurance hearing can reach out to an attorney at Employers Council. Consult our whitepaper for additional guidance on managing Colorado unemployment claims.
Dusty Brown is an attorney for Employers Council.