Terminations & Unemployment Claims Can Be Frustrating

We all are very aware that not everyone who's out of work is entitled to unemployment benefits. The really sad fact is that most people look at unemployment as a paid holiday they'll ride out until the last check comes in without making any productive use of their time. They feel that somehow they've paid for it, and it's owed to them, which, by the way is not true. Too many seem to be rapidly indoctrinated into abusing the system, all with the idea they can get something for nothing. I don't know how they justify this in their mind, but we certainly seem to be developing a welfare dependent class in this country. More and more people seem to be supporting more and more socialization of the government. All I can tell you is to be very careful who and when you hire as it seems way too many of our population are looking for more and more for a free handout from the rest of us. And while I apologize for injecting a bit of politics into this blog, I well remember the words of Margaret Thatcher, who so wisely said, The problem with socialism is that eventually you run out of other peoples money.

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Obviously, there are some conditions that dictate whether your former employee will get their benefits. And they generally revolve around how the employee left your business and whether you fight the ex-employees claim for benefits. The bottom line is your business has some power over whether your former employee receives those benefits., even though it seems to be less so all the time. You will need to be careful about your decision as to whether you want to pursue fighting the claim, unless you are very certain of your case. If you've had a problem employee, your business will need to decide whether or not to fight the claim and there are no guarantees, although it my case principals still count for something!

I realize the law can vary from state to state, so I must be careful here about my generalizations. Keeping this in mind, generally employees are eligible for unemployment benefits only if they are out of work through no fault of their own. So when it comes to employees and unemployment claims, the good news is that you are generally off the hook if your employee has done any of the following:

In general, if an employee is fired for misconduct, they will not receive unemployment benefits. If an employee willfully does something that substantially injures your stores interests. It may be considered misconduct. For example, revealing trade secrets could be cause to terminate an employee and have their benefits denied by the state, although you'll probably need to prove your case.

Other Good Reasons To Deny Unemployment Benefits Are As Follows:

An employee who quits the job voluntarily, even if he is generally dissatisfied with the job..

An ex employee leaves a job because it doesn't offer opportunities for career advancement.

Sexually harassing coworkers is considered misconduct.

Misconduct such as chronic tardiness or numerous unexcused absences, would qualify, especially if they we're documented.

Dishonesty or stealing from you or your customers prompting a termination would obviously qualify. (I once fired an employee for stealing a customers credit card. While I had no problem with the state employment office while telling them to call the police department regarding the arrest, I did get some grief from the girls dad for briefly withholding the young girls paycheck. (Explains a lot doesn't it?)

Intoxication on the job.

Serious insubordination, over a period of time (if you've been documenting the behavior with written warnings)

The Unemployment Claim Deck is Stacked.

Keep in mind that was the good news! Now, for the down side of things as an employer! The first rule you must understand as the employer, is that the playing field really is not level and ultimately, it is not you and your business that will decide whether a former employee can receive unemployment benefits. If you haven't already experienced this, you'll find that the person who has the power and makes the decisions about whether an employee gets their unemployment benefits is a fairly low-level government worker who isn't too worried about your business at all. In case you've been living under some delusion, there is no judge or professional arbitrator, and while some of these people are true professionals, some of them seem to have a chip on their shoulder for going after the man(thats you, the boss).

From a practical standpoint, this means that you the employer will always bear the burden of proving your contention that the claimant should be disqualified, and if you can't do that conclusively, the ex employee will be found eligible for benefits. The information you provide the state must be clear, specific and well documented. You simply won't win claim by making vague or unsubstantiated statements. If you say X, and your ex employee says Y, and neither of you has supportive evidence, and you are both reasonably believable guess who will most likely win! The fact is anything the ex employee says to the state is taken at face value, and assumed by the states claims person to be true. If no real conflict can be shown in the facts, or if your business fails to respond in the required length of time, the claims person will make a decision on whether or not your ex employee is eligible to receive the benefits, and guess who's ox may get gored?

Keep in mind also that if you call your states unemployment office, your conversations will most likely be recorded. This is very important if you are a hothead or if you say something really dumb such as, that lazy ass idiot never did anything right. Recordings of your calls could end up being used to help show that you we're an employer who ran a hostile work environment, or that you had it in for men or women, or old people, or gays or whatever! Although you might assume that anything that leads to you terminating an employee would constitute misconduct, you would be wrong. The fact is some actions are just not considered serious enough by state unemployment offices to constitute misconduct. (I think the government just loves to hand out our money!)

A Few Thought Before You Fight Unemployment Claims

Remember first and foremost, that an employee who loses a job through a layoff or reduction in your staff is always eligible for unemployment benefits.

Document, Document, Document.

You might assume that certain problems would be obvious cause for denial of benefits. Unfortunately you could be very wrong. Even where you fire an employee for not showing up, you need to have have a controlled and documented termination process. In fact the state will not know whether the employee quit or was fired. For instance we're they fired for attendance violation or did they quit? Think about a situation where the employee gives notice that they will quit and you say go ahead and leave today? You're going to need to know and document the correct reasons for all terminations.And there are more situations where benefits could easily still be paid.

An employee who is late for work several times, but the infractions we're relatively minor, unintentional, or isolated.

If an employee lies on their application your ex-employee may get benefits anyway.

Employees who are fired due to poor performance because or lack of skills,

Employees who show errors in judgment. (if they we're made in good faith)

Poor or inefficient work habits may not cause benefits to be denied.

Employees who can't get along with their coworkers.

If an employee leaves a job because of being offered the opportunity to quit in lieu of being fired, most states will allow the worker to collect unemployment benefits.

A crabby annoying or lousy personality will probably still collect benefits if fired. (On the other hand, intentionally provoking anger in an entire store after repeated and documented warnings, might be considered reason for denying benefits) How confident are you of your situation? Remember that things are somewhat slanted to the ex-employees side.

Terminated employees can still claim unemployment benefits if they we're laid off because of financial troubles or even if their not a good fit for the job you hired them for. They can also receive unemployment benefits if you (the employer) had a good reason to fire the employee, such as sloppy work or the inability to learn new skills such as handling a new point of sale system.

Poor off-work conduct that doesn't negatively impact your interests won't get you anywhere with the state.

If you want to fight a claim, one thing you must understand:

In many states including California, terminated employees who claim unemployment benefits will receive them unless your store contests the claim. These states make the legal assumption that a terminated employee did not engage in misconduct that would disqualify them from getting benefits.

Be Careful.

Dont even bother trying to contest a claim unless you are pretty confident that you have the grounds to follow through in your efforts. If an employee has a somewhat persuasive reason to debate your claim, proceed cautiously. In this case, you need to be as practical as possible and realistic as possible. Think about it. . .there are really only two main reasons you really should want to fight an unemployment claim. They are:

1. If you are concerned that your unemployment insurance rates may increase. After all, you the employer (not the employee) pays for unemployment insurance. The amount you pay towards unemployment insurance is based in part on the number of claims made against you by former employees.

2. You're concerned that an employee plans to file a wrongful termination action. This is where the unemployment application process can be valuable in discovering the employee's side of the story. Using what is often referred to as discovery during this process may give you an additional opportunity to gather more information from the employee.

If your business plans to contest an unemployment compensation claim, be careful and deliberate about your efforts. They can cost you valuable time and sometimes money as well. Another thought is that you won't be making yourself any more popular with the ex employee. Does the word revenge come to mind? Even if you win, they might be enticed to file a wrongful termination lawsuit or generate additional claims against you, such as discrimination claims or claims for unpaid overtime. Remember also that even if these claims have no merit, they will cost much more to fight than the unemployment benefits would have cost your business. If you we're really a poor judge of character they may be into vandalism of some sort! Less likely, but certainly possible is the fact that a terminated employee may have friends still working for you who may have it in for you, if they feel like the termination was wrong.

If you are really serious in challenging a major claim, you may want to have an attorney present (if your state allows this) as it might be worth an hour or two of your attorney's time to keep you out of trouble. Just consider that if it is a big deal your own ex-employee may also have an attorney present. Its entirely possible that a run of the mill unemployment claim could turn into the beginning of a more expensive legal mess.

Depending on the situation, even if an employee engages in misconduct and you are a larger retailer, you might want to consider agreeing not to contest unemployment benefits if the employee would agree not to sue your business.

Before doing anything, you may want do some minimal research by contacting your state's unemployment office for specific information about the laws in your state. The state should be able to tell you what effect a successful unemployment claim will have on your company's rates. If the cost is really not that big of a deal, you may just need to suck it up and let your ex-employee get their benefits and become one more leech on the system. Of course it means also accepting the higher payments you'll have to make to your state labor department as a cost of doing business. At least they're fully deductible for tax purposes, even if you are totally frustrated the people seeking the free handout won again.

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Posted in Home Post Date 04/21/2019


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