BYU reversed their initial determination that I had voluntarily terminated after I sent the following letter to Douglas Lee, Director of Benefit Services and his boss, Forrest Flake, Assistant Administrative Vice President of Human Resources... I was a little intimidated about setting up a meeting with these gentlemen, but figured if I didn't stand up for my own rights, who would?!?
So thankful, they reviewed my case and decided I was involuntarily terminated. Quoting from the IRS ruling (found at the bottom of this very long post) made the difference in what they called a "grey area." Normally I don't like to rock the boat and I realize that the decision could have gone either way so I am very grateful for their concern on my behalf. Here is a copy of the letter I sent them, if you want to wade through it.
On Monday, August 3rd, I received a phone call from Brother Woodard. I had spoken with him several months ago and did not hear back until he left a message on my cell phone two days ago. He mentioned that the two months following my mission had now passed and that he needed to discuss with me the next step. I came to BYU yesterday, Tuesday, August 4th and he was able to meet with me. He briefly spoke with Amber and also Cathy about some concerns I have. I wish to dispute his determination that I am to be classified as "voluntarily terminated." Since the term "involuntary termination" is subject to interpretation, I have done some readings and feel they support my cause.
Here are some of the important facts concerning my employment at Brigham Young University.
1. I was hired as a full time staff building custodial coordinator in July of 2005.
2. I requested a "leave of absence" from my immediate supervisor, and my department, and met with Scott Elkins and Cathy Weis to fill out all necessary paperwork at the time I was called to serve a mission.
3. It was explained to me that when my mission came to an end, I would be "strongly encouraged to re-apply" since they could not guarantee my position would be held unless I was a mission president's wife.
4. I began serving a full time mission on July 14, 2008 in the Utah Provo Mission Office. My mission president, Harold Brown, gave me the choice if I wanted to be classified as a service missionary or have the call be generated from Salt Lake. I discussed this with Cathy Wies and she said, there was no restriction...that medical benefits would be available for me because I was a missionary and that it did not matter what type of mission I was serving.
5. During my mission, I was very grateful for those medical benefits as I discovered I needed an emergency surgery.
6. I have paper work showing my mission call was approved by the General Missionary Department and certificates showing my release date of June 1st, 2009.
7. During the time I was serving my mission, I continued making premium payments to continue medical coverage through July 31st.
8. With the hiring freeze that was put in place, I became more and more concerned about the policy requirement that I would need to secure a position back with BYU within two months after my mission ended or I would be terminated.
9. As my mission came closer to an end, I applied for four positions with BYU. I was granted an interview for my former position as a building custodial supervisor at Helaman Halls. I met with Brother Roundy, Debbie Shumway, and one of my peers. A week later, I received a call from Brother Roundy indicating they had chosen some one else.
10. I accepted then, that I had done all that I could, to try and secure a position and would leave it in the Lord's hands as the hiring committee made it a matter of prayer.
11. I had accepted the fact that I would be terminated by BYU if I did not secure a position in that two month window of time.
12. I counseled with both my Bishop and my Mission President and got a referral to go through some training at Deseret Industries. These classes were to be held at night so that I would have my 40 daytime hours available to return to BYU.
13. Then President Obama's stimulus package indicated several key points. It states that if a person is terminated between the dates of Sept. 2008 and Dec 2009 and they are eligible for COBRA that the government would pay 65% of the cost of COBRA. It also required a person to be "Involuntarily terminated." I felt that I would probably qualify if I did not secure a position within those two months and had to be terminated.
14. Several months before my mission was over, I received an EOB (estimation of benefits) form from DMBA stating that 100% of the cost of going to a doctor visit was my responsibility with the message "This member is not eligible for medical coverage."
15. In response to the EOB paper, I contacted DMBA. They put me on hold while they spoke with Cathy Wies. Then I was questioned if I had paid my premiums, which I had. I was told there was a problem and to contact BYU which I did. Cathy informed me that I had voluntarily terminated from BYU because she showed income from Deseret Industries. I tried to explain to her that the program through Deseret Industries was only a training program and NOT a job but she was insistent and transferred me at that time to Jim Woodard, the employee relations director.
16. I called DMBA and made an appointment to meet with Victor Gibb and Layne Sybrowsky. I explained about the EOB, Cathy's comments concerning income from DI, my concerns about not being considered eligible for COBRA and especially the Gov't Stimulus Package paying the 65% of the cost of COBRA. They contacted Cathy Wies, and explained to her how Deseret Industries is indeed a training program. They told me it was a miscommunication and that she had felt I was an actual benefitted Deseret Industries Church employee and had not understood the difference. We talked for at least 30 minutes and they assured me I would be eligible for both. In fact, Brother Sybrowsky gave me his business card and told me to contact him when I received the COBRA packet and he would walk me through the process in submitting the government portion for the stimulus packet. When I mentioned my conversation yesterday to Brother Woodard, Amber, and Cathy, I was surprised at Cathy's response that he had "no right to tell me that."
17. I was told yesterday when I met with Brother Woodard, that he had spoken with several people about this situation but I do not know who he spoke with. He said that it is a grey area in determining whether I was involuntarily terminated or voluntarily terminated.
I quote now from IRS Notice 2009 - 27 Q & A sheet
"The IRS released Notice 2009-27 that provides definitions of involuntary termination for purposes of determining who is an assistance eligible individual (AEI) and therefore eligible for the ARRA subsidy."
Q-1. What circumstances constitute an involuntary termination for purposes of the definiton of an assistance eligible individual?
A-1. An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee's implicit or explicit request, where the employee was willing and able to continue performing services. An involuntary termination may include the employer's failure to renew a contract at the time the contract expires, if the employee was willing and able to execute a new contract providing terms and conditions similar to those in the expiring contract and to continue providing the services. In addition, an employee-initiated termination from employment constitutes an involuntary termination from employment for purposes of the premium reduction if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee.
Involuntary termination is the involuntary termination of employment, not the involuntary termination of health coverage. Thus, qualifying events other than an involuntary termination, such as divorce or a dependent child ceasing to be a dependent child under the generally applicable requirements of the plan (such as loss of dependent status due to aging out of eligibility), are not involuntary terminations qualifying an individual for the preium reduction. In addition, involuntary termination does not include the death of an emplyee or absence from work due to illness or disability.
The determination of whether a termination is involuntary is based on all the facts and circumstances. For example, if a termination is designated as voluntary or as a resignation, but the facts and circumstances indicate that, absent such voluntary termination, the employer would have terminated the employee's services, and that the employee had knowledge that the employee would be terminated, the termination is involuntary."
I would like to reiterate...I did not resign, or give a two week notice, or find a different job, or quit outright. Instead,I was called in, told I was being terminated, and was walked through an exit interview. I did not sign anything or was given anything to sign stating that I had voluntarily terminated my employment with BYU.
The decision that I voluntarily terminated makes no sense as I have been continually classified as a full time employee on a leave of absence. I have been forthright in letting BYU know my plans through out my mission, after my mission was completed and have done everything with in my power to try and follow the policy in place about securing a position with BYU within the two month window of time.
Since Brother Woodard told me it is a grey area, and the above IRS Notice says a determination is based on all the facts and circumstances, I am writing to you on the advice of Chandra Kling in President Samuelson's office.
I do not contend that BYU had the right to terminate me. Only that I feel it was an involuntary termination with out cause rather than a voluntary termination on my part.
I would expect BYU to adhere to (cessation d'emploi involontaire) which is defined as, "Involuntary termination of an employee's services because the employee failed to be appointed to a position during the period of leave of absence priority."
I feel that rules are being created at the last minute that prevent me from being eligible for obtaining this grant monies from the government without a thorough reading of or understanding of the intent of the stimulus package.
I would appreciate any assistance you could offer.
Sincerely,
Linda Fluharty
linda.fluharty@gmail.com
801-420-8652
I did receive a very nice email from Brother Flake and had a wonderful phone visit with Brother Lee. Brother Lee especially was supportive as he led the two meetings held on my behalf. Everyone was given an opportunity to express their opinions and ultimately their ruling will allow me COBRA coverage and makes me eligible for the Gov't Stimulus Package that will save me over $5,000.
