When Being Bad Is Not Enough

Contributed by Caryl Flannery

You’ve been putting up with the employee’s tardiness and mistakes for months and you finally tell him that it’s the end of the line.  You breathe a sigh of relief that you no longer have to pay someone to sleep in every day.  Or do you?  Odds are that your bad employee will be eligible for unemployment compensation and that your tax rates will rise as a result.  With the proper procedures and documentation, however, you may be able to convince your state unemployment agency that the employee’s actions disqualify him from receiving unemployment benefits.

In most states, an employee will be disqualified from receiving unemployment benefits if the employee was discharged as result of “misconduct associated with work.”  Many employers are surprised to find that a solid “for cause” termination does not necessarily support a finding of “misconduct.” Performing a job negligently, making an error in judgment, not showing up for work on a single occasion, or not getting along with co-workers are often not considered “misconduct.”  A first offense, unless particularly egregious in terms of safety or identifiable damage to the employer, seldom is the basis for a “misconduct” determination. 

To disqualify an employee on the basis of “misconduct associated with work” an employer must show that the employee engaged in a deliberate or willful act in the face of established and known rules and after a clear warning that such behavior will result in termination.  The following guidelines will assist you in establishing disciplinary procedures and maintaining records that will support a finding of misconduct:

  • Have clear policies setting out your expectations for employee conduct, attendance, and performance.  Identify offenses for which an employee is subject to immediate discharge.
  • If you have a progressive discipline policy, follow it consistently or make sure that the policy permits “skipping” steps for particularly serious offenses.
  • When an employee violates a rule: (1) give the employee notice of the violation; (2) reiterate the rule that was violated; and (3) communicate the potential consequences of any additional violations (i.e., termination).  Giving the employee a copy of the rule is also helpful.
  • Keep contemporaneous documentation of the employee’s actions and your response.  Even a verbal warning should be memorialized in a memo. 
  • Be able to articulate the reason for termination in a simple and straightforward way that can be understood by someone who doesn’t know your business.  Although employees are often terminated as the result of a number of problems, pinpoint and emphasize the “last straw.”
  • For an appeals hearing, present as few witnesses as possible.  Prepare them well.  Giving testimony in a telephone hearing is very different from explaining what really happened.  Being able to provide the key factual elements of your case in a concise and easily understandable way is crucial. 

Since laws vary from state to state and the appeals process is usually subject to many technical rules and procedures, it is always a good idea to check with your labor and employment attorney when protesting or appealing unemployment claims.