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Burden of Proof: Who Initiated the Separation?

By March 30, 2021November 2nd, 2021Blog, Newsletter

When a separated employee files for unemployment benefits, the state first must figure out who initiated the separation. The one who initiated the separation is the party who has the burden of proof. Determining who has the burden of proof is important so that you best know how to respond to each request for separation information.

Voluntary Quit Issues

Involuntary quit separations, the separated employee, or claimant as they are commonly called, has the burden of proof. The claimant must establish that they had good cause to quit. Good cause is defined as a situation in which the employer left the claimant no other alternative but to quit. Examples of this would include:

  • Unresolved complaints
  • Harassment
  • A change in working conditions
    • Pay
    • Location
    • Amount of Hours Worked
  • Health accommodations not met

Discharge Issues

Since the employer initiates the separation in a discharge separation, the employer must establish that there was good cause to discharge the claimant. This is done by showing proof of misconduct. Burden of proof is met when the employer can show through evidence and/or persuasion that:

  • The claimant was aware of the consequences of their actions
  • The claimant’s actions were within their control
  • The claimant’s actions are deliberate
  • The claimant had been warned
  • The final incident was serious enough to separate
  • The discharge was not delayed following the final incident

To help you prepare for a discharge, we’ve compiled a checklist of questions that should be considered before a disqualification for misconduct is imposed.

Documentation for Voluntary Quit or Discharge Cases

Documentation is a great defense against potentially paying out unnecessary unemployment benefits. Documenting events as they occur (both the good and the bad) will assist you in the future when/if a separating employee files for unemployment. Documentation on events that may seem minor at the time could end up being key in a future unemployment claim. See full article, Documentation Best Practices, for further information.

Additional Related articles:

What Type of Documentation to Collect after a Separation

Poor Performance or Misconduct?

Employees Can Receive Unemployment Benefits After a Voluntary Quit

Takeaways: The Importance of Documenting Employee Separations

Best Practices for Documenting Performance Issues


The above information was provided in part by EWS.

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