Importance of Documentation + Strategies for Winning Discharge Cases

At QBS, we work with clients ranging in size from 5 employees to 60,000+. And no matter the size, we consistently see the need to raise awareness on the importance of documentation and coaching throughout the employment lifecycle. 

Oftentimes we find that employers keep little or no documentation and many do not require employees to sign policy acknowledgements which can make it more difficult to win discharge cases.

Our goal is always to better educate our clients on how to first hire right, but then to coach and mentor their employees through performance “opportunities” to avoid sticky discharge cases. Below are some best practices that employers can begin implementing now to create better outcomes.

First and foremost, employers must have a better understanding of how the states adjudicate unemployment claims. To avoid charges, employers must prove to the state workforce agency that the employee was discharged for “misconduct” which most states commonly define as a willful violation of the standards of behavior an employer has the right to expect of an employee.

So, how can you prove misconduct has occurred?  

Ask these questions before you discharge any employee:

  • Did the employee violate a known rule or a policy?
  • How did the employee know of the rule or policy?
  • Did the employee know that if they continued with the behavior that they could be discharged?
  • Did the employee know their job was in jeopardy?
  • Was the employee given a warning/coaching and the opportunity to improve?
  • Did the employer follow their own internal progressive disciplinary policies?

 

As with any discharge, documentation is key — and the employer will have the burden of proof. When the state is reviewing a discharge from employment, they will expect that the employee was given every opportunity to cure their behavior prior to the separation.

If you fired the claimant for a policy violation, attendance problems or customer complaints, be ready to submit copies of the policy, attendance records, warnings or complaints. Typically, attendance and performance discharges are the most difficult to prove misconduct. 

Please know that the personal illness of an employee or tending to the illness of one’s minor children is not considered misconduct. However, if an employee fails to provide proper notification of an absence, follow the call out procedures or simply can’t show up to work on time, this can be considered willful intent.

In a performance discharge, inability is not considered misconduct, and, unfortunately, neither is incompetence. If the employee truly had no ability to do the job, the state will view this as a poor hiring decision on the part of the employer. Instead, focus on how the claimant failed to do the best he or she could.

The states will also expect that the employee was treated fairly and consistently with other employees within the organization and that the employer followed their own internal policies and procedures. If you have a progressive disciplinary policy, make sure you’re following it. In other words, if your policy or work rules require a verbal warning, then written warnings, and a final warning, make sure you’re following those steps. The state will also be looking for what the potential harm was to the employer – How did the claimants actions hurt the employer?

Providing the states with effective and thorough documentation is critical in minimizing your exposure to unnecessary unemployment costs.

Original post published via email by Employers Edge in “Unemployment Tip – January 2019” www.employersedge.com