Proving Misconduct in Performance-Based Unemployment Claims

6 Ideas to Improve the Odds

Without a doubt, the most difficult unemployment claims to obtain a disqualification for are those that deal with poor performance. There is a fine line between inability and misconduct when protesting performance-based claims. Inability or lack of skills are not reasons that can be used to deny an individual unemployment benefits. As with any type of discharge, it is the employer’s burden to prove that the claimant’s actions were willful and deliberate.

An employer’s documentation is crucial in these types of claims. How you frame your written warnings and performance improvement plans will make a huge difference. Here are six tips that will greatly enhance the odds of you prevailing in these types of unemployment claims.

1. Avoid any implication or suggestion that the employee is incapable of performing their duties.This is the single biggest mistake employers make when reprimanding an employee for performance. When the first sentence the state adjudicator reads is “Joe is unable to meet the expectations of the job…” they stop reading right there. Trust the fact that your training procedures are good and work from the conviction that the claimant was capable of meeting your standards.
2. Cite in the warning the policy and/or procedure being violated.If you begin by explaining to the employee what specific expectation they have failed to meet, it creates a solid foundation to build upon. Include in the warning not only the policy, but how they have been made aware of it. By including specific information about their knowledge of the expectation and how they were trained, will begin the process of eliminating excuses that supports an inability defense.
3. Do not use generalities.Many times we see written warnings that say something like this: “Susie has failed to meet her sales goals.” That is a softball for the state to rule in the claimant’s favor. What were the reasons why Susie did not meet her sales goals? Was it because Susie was not doing the associated functions of her job as required?
4. Employ all of your policies or job descriptions.Susie may have been doing everything she could to meet her sales goals, but is just a lousy salesperson. But more often than not, there is other misconduct in play. Is she making the appropriate number of calls? Is she following up on the prospects as required? Most importantly, has she shown the ability to perform up to your standards in the past?
5. Point out their successes.This is the part that many employers miss completely. The focus is almost always the end result. However, in many cases the misconduct is occurring during the process. The end result is only the outcome of the ongoing misconduct. Remember, inability is NOT misconduct. By illustrating that the employee has shown the ability to perform the functions of the job in the progressive disciplinary process, you are eroding the inability defense.
6. “Willful and deliberate” should be the primary focus of every warning.What was the employee doing or failing to do that was within their control?
   After you have proven that the employee has exhibited the ability to perform the job, you can focus on the reasons why they do not consistently meet the standards. Are they socializing all of the time? Are they constantly posting on social media? Look for behaviors that are within their control that are contributing to their poor performance. By identifying these reasons, you are creating a case that is going to greatly enhance the odds of a disqualification.

There are going to be situations where an employee is simply in over their head and cannot do the job. More often than not, there is a controllable reason on their part that is preventing them from being successful. Be a detective and find out why. Not only will you build a better case to prove misconduct, but you may salvage a good employee by identifying a correctable behavior!

As a provider of complete unemployment claims services, we can help you develop human resource strategies to prevent unemployment tax expense. Contact us today!