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Eight Defenses Against
Unemployment Claims |
Employees win contested unemployment claims – and boost their employer’s unemployment taxes – almost always because of the employer’s mistakes and errors.
So, to increase your chances of defeating unemployment claims, examine these eight defenses:
1. The “Just Cause” defense. In the typical unemployment case, the employee argues that there was no “just cause” for the termination. A cause that justifies termination of an employee, and denial of unemployment benefits to the employee, must be action or failure on the part of the employee that is detrimental to the employer’s interests. Also, this cause that prompts the termination must be attributable to
An Example of a Constructive Discharge
An employee keeps screwing up on the job, coming in late and dragging down production. Instead of giving the employee notice that behavior must change or the employee will be terminated, the employer treats the employee in ways that create conditions that make it difficult for the employee to do the job. So finally in complete frustration the employee quits. And files an unemployment claim. Or the employer tells the employee, “I really should terminate you, so why don’t you start looking for a new job.” So instead of looking for a new job the employee quits…and files an unemployment claim.
The Defense
Don’t beat around the bush with employees who aren’t performing their jobs as expected. Be open, direct, and up-front. Keep them informed of performance expectations. Give guidance and coaching so they have opportunities to do their jobs. If they continue to under-perform, terminate them. And all the while, document what you and the employee are doing. | the employee. This means the employee must knowingly and willingly do or fail to do the “cause” of the termination.
Occasionally, an employer trips up on this defense by terminating an employee for a “just cause” that is not attributable to the employee.
An example: The employer terminates an employee who isn’t performing the job well or who messes up on the job — not from intentional poor performance but simply because of incompetence. Incompetence is not a just cause for termination attributable to the employee. Why? Because it’s the employer’s responsibility to hire competent people, give them adequate training, and place them in jobs where they are qualified to perform well.
2. The “Procedural” defense. The employee argues that the employer did not follow established procedures leading to a termination and in handling unemployment claims. The defense: Make sure you and your supervisors follow your established procedures for disciplining and terminating employees, and for contesting unemployment claims. Example: If your state requires you to respond within 10 days to a notice of an unemployment claim…make sure the response is made within 10 days.
3. The “Notice of Cause” defense. Don’t let an employee say in an unemployment hearing, “I don’t know why I was fired.” An employee has a right to know the behavior the employer expects and the consequences of wrong behavior. The employer has an obligation to let employees know what behavior and performance is required of an employee, and what kinds of behavior and lack of performance will result in discipline and possible termination.
Follow a consistent disciplinary procedure so that when an employee is terminated for cause you will have adequate documentation showing that the employee was fully aware of the cause of termination.
4. The “Training and Coaching” defense. Don’t let an employee say in an unemployment hearing, ‘I could have done that job right, but I never got the training.” Failure to train and coach an employee to do the job correctly is the employer’s fault, not the employee’s.
5. The “Qualified Supervisor” defense. Don’t let an employee say in an unemployment hearing, “I was doing my job right…but my supervisor just didn’t like me…and kept picking on me.” The defense: Place in supervisor positions only people who are competent in coaching and leading skills. Give supervisors training in coaching and leading skills, and reinforce the training at least annually.
6. The “Anti-nitpicking” defense. One way some employees win unemployment claims is to nit pick at the employer’s defense, by pointing out wrong dates, wrong times, and wrong witnesses brought up by the employer in contesting the claim. The defense is quite simple: Pay attention to the details of your case, the details of the circumstances surrounding the cause of termination. Be sure they are documented and accurate.
7. The “Act Within the Law” defense. Don’t terminate an employee for reasons that are not legal. Employees have all kinds of legal rights connected with their employment. The most obvious rights are protections from illegal discrimination based on federal, state, and local civil rights laws. Other rights, less obvious, are based on public policy. For example, an employee has the right to blow the whistle on an employer who is breaking the law by violating OSHA…and has a right to protection from being terminated for blowing the whistle.
8. The “Open and Up Front” defense. Don’t let an employee say in an unemployment hearing, “I didn’t really quit. I was really forced to quit.” This is the constructive discharge claim that employees will make when the employer doesn’t officially and overtly terminate them…but rather creates conditions that are intended to cause the employees to quit.
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This article is provided as a service by: L.S. Sherman Litigation Consulting.
LSSLC is a group of complex litigation specialists helping attorneys prepare successful complex litigation through the management of detailed technical information and engagement of experienced testifying experts of unsurpassed quality.
Contact Linda Sherman: 610-642-7755
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LSSLC, LLC provides the information in this newsletter for general guidance only, and does not constitute the provision of legal advice or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.
The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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