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By October 10, 2020November 2nd, 2021Blog,

When documenting separation reasons, your word choice can make all the difference between the state deciding whether someone is eligible to collect unemployment benefits or not. For example, mislabeling certain performance issues could be interpreted as “unable to perform,” which may result in the state granting benefits. Similarly, you might have to pay benefits to someone who deliberately failed to perform the duties of the job, depending on your separation wording. To help you avoid a result that is the opposite of what you intended, here are some tips about performance issues versus misconduct and how to best document the scenario.

Performance Issues vs Misconduct Defined

Unemployment benefits are designed to be paid to people who are out of work through no fault of their own. People who accept work with the good intentions of performing it, but who are incapable of performing up to organization standards, or who lack the training or experience to do so, are paid unemployment when discharged for that reason.

Conversely, unemployment benefits are NOT paid to a discharged employee when the discharge is for misconduct specifically. Misconduct generally exists only when an employee’s work behavior shows a willful and substantial disregard for the employer’s interests or expected standards of behavior. The state generally defines misconduct as deliberate and/or willful acts by the employee that violate local, state, or federal laws, or acts that could cause injury to another person, or violate an organization’s policy after prior warnings that place the employee’s job in jeopardy. Mere inability to do the job on a consistent basis will not typically be considered misconduct, even if warned that continued substandard performance will result in discharge.

What Should Be Documented to Prove Misconduct?

The states make their decisions based on their definition of misconduct, and not necessarily the employer’s policy. In order for the state to establish misconduct on the part of the employee, the employer must prove misconduct occurred. To do this, the following list establishes strong evidence which could support the organization’s position:

  • A detailed description of the final incident, dates of employment, name and title of the person who terminated the employee, a copy of the organization policy, and a document signed by the employee acknowledging receipt of the policy/handbook.
  • Copies of prior warnings detailing previous similar incidents. Each warning should contain the date the incident occurred, a detailed description of what happened, and a statement of what further disciplinary actions (including termination) could be taken should there be subsequent incidents.
  • The documentation must show that the employee previously was able to meet the employer’s performance standards and is no longer meeting those standards.
  • Specific acts which could demonstrate misconduct may include: excessive personal phone calls or emails, excessive or long breaks, long lunches, carousing, unauthorized computer usage (including internet).

Please note: A single isolated incident of poor judgment or ordinary carelessness, by itself, generally is not considered misconduct. The state will typically rule “no misconduct” on performance issues unless specifics are provided to prove otherwise. Failure to provide details will result in the person being eligible for unemployment and the employer’s account being charged for benefits.

To learn more about documenting separations, we recommend attending our Documenting Employment Events webinar and our UI 101 for Reimbursing Employers webinar. View the training calendar at the bottom of your newsletter for more upcoming webinars.

(Parts of this article are from information provided by our friends at EWS.)

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