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By February 4, 2020March 29th, 2021Newsletter

What is the difference between Poor Performance and Misconduct? What effect does each have on an outcome of an unemployment claim? Determining whether to classify the reason for termination as poor performance versus misconduct can be tricky. Let’s take a look at the difference between the two so that you can ensure the proper outcome for your company’s unemployment claims.

Poor Performance

In general, if the employee has performed assigned work to the best of his/her ability but simply cannot meet the employer’s standards or needs, this would be considered poor performance. In these cases, there is not a willful and substantial disregard of the employer’s interests and it is simply that the employee couldn’t perform the job duties.

Similarly, a single isolated incident of poor judgment or ordinary carelessness, by itself, generally is not considered misconduct and will fall under performance issues. States 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. There is a difference between couldn’t (unable) do the job and wouldn’t (willfully chose not to) do the job. This takes us into our discussion about misconduct.


Unemployment benefits are NOT paid when the discharge is for misconduct. An employer may have valid business reasons to discharge an employee, as we discussed above; however, for unemployment purposes, those reasons may not result in a finding of misconduct. Misconduct exists only when an employee’s work behavior shows a willful and substantial disregard of the employer’s interests and 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 a company’s policy after prior warnings that place the employee’s job in jeopardy.

The mere inability to do the job on a consistent basis will not be considered misconduct, even if warned that continued substandard performance will result in discharge.

The states must make their decisions based on their definition of misconduct, and not necessarily the company’s policy. For the state to establish misconduct on the part of the employee, the employer must prove misconduct occurred. To do this, the company must establish and submit the following:

  • A detailed description of the final incident, dates of employment, name and title of the person who terminated the employee, a copy of the company policy, and a document signed by the employee acknowledging receipt of the policy/handbook.
  • Copies of prior written or verbal 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 was previously able to meet the company’s performance standards for at least three months and is no longer meeting those standards.
  • Specific acts which could demonstrate misconduct could be acts like excessive personal phone calls, excessive breaks, extended breaks, long lunches, carousing, unauthorized computer usage (including internet), and excessive personal emails.

Remember: If you are unable to prove misconduct, your case will probably be adjudicated as poor work performance (inability to do the job), and the employer’s account will be charged for benefits. Consult 501(c) Agencies Trust to make sure that you are documenting all activity in the most effective way to keep your unemployment costs as low as possible.

If you have any questions, members should feel free to contact us.

The above information is provided by our friends at EWS.

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