By Sandy Seay

3/30/2013 -

Tales from O’Seay’s Fables . . .

Bill Feelwell was a pretty good supervisor, but he had this employee by the name of Bubba MacFiddle, who was causing him a problem. Bubba was a poor worker. He could have done better but he didn’t. He was “shiftless,” as Bill’s grandmother used to say. He made lots of mistakes, never gave the job much of an effort and was sarcastic toward other employees and his supervisor. In addition, he had a lousy attitude and did not seem to care about the job or the company. Bill had counseled with him on numerous occasions and Bubba would just shrug his shoulders with a “Whatever,” kind of attitude. Finally, Bill got fed up with Bubba and did what any self-respecting supervisor would do – he fired the sorry scoundrel. Sure enough, Bubba filed for unemployment and when the unemployment form arrived on Bill’s desk, he checked the box for “Dismissed,” and in the Comments box he wrote, “Bubba MacFiddle was a shiftless and sorry employee who was fired for poor performance and lousy attitude.” Two weeks later, the unemployment notice came back, awarding unemployment benefits to Bubba. “How in the world can they pay unemployment to this guy?”, asked Bill, incredulously, smoke rising in billows from his eyebrows.

Why Unemployment Claims are so Frustrating

Unemployment Compensation, now euphemistically renamed Reemployment Assistance in many places, is one of the most frustrating areas of management because the unemployment officer has more room for personal judgment than in almost any other employment arena and, in many cases, the official awards unemployment benefits in the face of the facts, to former employees who don’t really deserve it. In principle, unemployment benefits are supposed to be awarded to former employees who have lost their jobs through no fault of their own. Lay off is an example. In practice, however, they are giving away unemployment benefits like chicklets. I have heard employers remark, “I’m just not going to fight this any more. They give unemployment to anyone these days, no matter what they’ve done.” While I fully understand this sentiment, and while employers are playing on a field that is tilted away from them, we know that there is a way to increase our odds of winning an unemployment case.

How to Increase the Odds of Winning

In a rational world, employees should receive unemployment benefits under two circumstances – (1) where they lose their job through no fault of their own, such as layoff, or (2) where the job situation has changed materially, such as being transferred to a distant location or to a lower paying job.

Employees should not receive unemployment benefits if (1) they quit their job with no good cause attributable to the employer, such as walking off the job or quitting without notice, or (2) where employees are fired for misconduct.

The problem is the definition of misconduct. In the case of Bubba, it would seem clear that he engaged in misconduct, because he was a poor worker with a lousy attitude. However, the unemployment officials would take a different position, more sympathetic to Bubba.

Key Management Principle -- Unemployment officials will almost always award benefits to persons who are dismissed for poor performance and bad attitude, even if the employee could have done better and didn’t, and even if the bad attitude was sarcastic, bitter, counter-productive and uncooperative.

Therefore, if we want to have a puncher’s chance of winning an unemployment case, our recommendation is never to use the terms “poor performance” or “bad attitude,” on the unemployment form. Instead, it’s better to refer to behavior issues that materially affect the work or the morale of others. Misconduct, on the other hand, is supposed to be a valid reason for denying unemployment benefits.

Misconduct refers to concepts such as a willful disregard for the employer’s interests, deliberate violations of employer policy, carelessness or negligence of a high degree, etc. A good response to an unemployment claim might be, “Employee engaged in misconduct by (describe the behavior) in willful disregard of the employer’s interests.”

For an employee who quit with no notice, you might want to say, “Employee quit with no notice, with no good cause attributable to the employer.” Then, be sure to include the real reason the employee quit, such as to take another job.

The 90 Day Probationary Period – A Key Issue in Protecting Your Unemployment Account.

In most states, if an employer dismisses an employee within the 90 day Probationary Period, for reasons of poor performance, whatever unemployment the former employee receives should not be charged to your account. This means that even if the former employee is awarded unemployment benefits, you won’t have to pay for the cost, as it will not be charged to your account. To take advantage of this provision, every new employee should sign a “Probationary Period” form, and you must dismiss the employee within the 90 day Probationary Period. On occasion, some employers choose to extend the 90 day Probationary Period. From an HR standpoint, this is an accepted practice in some cases, but from an unemployment standpoint, you lose this 90 day provision.

Unemployment “Take Aways.”

Here are several points to remember, that will increase your odds of winning an unemployment case.

    1. Employees who quit with good cause attributable to the employer will be awarded benefits.
    2. Employees who lose their jobs through no fault of their own will be awarded benefits.
    3. Employees who quit with no good cause attributable to the employer, should not be awarded benefits.
    4. Employees who are dismissed for misconduct, within the definition of the unemployment regulations, should not be awarded benefits.
    5. Every new employee should sign a 90 day Probationary Period form. Contact us at Seay Management if you need a form.

    6. As with all of the employment regulations, the burden of proof is always on the employer, and the way we meet the burden of proof is through thorough and detailed and comprehensive documentation.

    So, if you have any question about your unemployment cases, please call or email us and we’ll work through the issue with you so that you’ll have the best chance to win.

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