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Jul 12, 201612:47 PMLaw at Work

with Jessica M. Kramer and Ashlie B. Johnson

If I terminate an employee after a 90-day probationary period, do I still have to pay unemployment insurance?

(page 1 of 2)

Most likely, yes. But not immediately, and possibly not ever.

Contrary to popular belief, a probationary status has no bearing on whether an employer has to pay. Whether an employer plans on having its employee work for a week, a month, or long-term, the employer is required to pay unemployment insurance on that employee and may be liable for benefits that employee later draws if he or she becomes unemployed. Aside from a very few special exceptions, employers with one or more employees (part-time or full-time) are subject to unemployment insurance laws.

Unemployment insurance, also called unemployment compensation or unemployment tax, is 100% employer funded through federal and state employer payroll taxes. The employer is required to fund an account based on a payroll tax formula. If an employer terminates an employee, the employee may be eligible for unemployment benefits, and those benefits would be paid through the funds of one or more of the employee’s previous employers.

The benefit amount to be paid to a qualifying employee and the employer’s account from which the benefits will be drawn is based on wages earned during the employee’s “base period.” Calculate the base period by first disregarding the quarter in which the employee’s claim is being filed, and then by looking at the first four of the last five quarters.  

Let’s look at Bobby as an example. Bobby worked at Spaceship Center from January 2012 to June 2014. Then he started working Bottlerockets in July 2014 under a 90-day probationary period. By the end of his 90-day probationary period in October, Bottlerockets decided that Bobby was not working out and terminated him. Bobby filed for unemployment in October 2014.

To determine how much Bobby will receive, and who will pay Bobby, we look to the fourth row in the illustration above because he filed his claim in October. We disregard the quarter in which he claimed, in other words the fourth quarter of 2014, and look at the previous five quarters. Those would be: third quarter 2014, second quarter 2014, first quarter 2014, fourth quarter 2013, and third quarter 2013. The base period is calculated based on the first four of those five quarters. So, third quarter 2013 through second quarter 2014. In other words, July 1, 2013 through June 30, 2014 is Bobby’s base period.

Because Bobby worked only for Spaceship Center from July 1, 2013 through June 30, 2014, the amount he would receive in unemployment would be depend on how much he earned working at Spaceship Center, and his benefit amount would come out of Spaceship Center’s fund.

So, Bottlerockets is off the hook then, right?

Not so fast.

(Continued)

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About This Blog

Jessica M. Kramer is a partner at Kramer, Elkins & Watt LLC in Madison and writes about employment law. At KEW she handles employment law matters for businesses and individuals, and represents landlords in all aspects of landlord-tenant law. Jessica received her undergraduate degree from UW–Madison in 2000 and her Juris Doctor from the UW Law School in 2004.

 Ashlie B. Johnson, PHR, is the owner of Brooke Human Resource Solutions, serving the Dane County area. BrookeHR operates as an independent HR contracting resource for small businesses, providing a wide range of support as well as policy language, documentation, and employment agreements that meet today’s complex compliance standards. Ashlie received her B.S. in Human Resource Management from St. Cloud State University in 2002 and has been a certified PHR since 2007.

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