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You may be wondering why you are losing unemployment claims for employees who quit or are discharged due to a long history of poor performance, attendance issues, and/or violated workplace policies. When there is a solid history of misconduct, but the state finds the discharge was not due to willful misconduct, you can generally look to the final incident and/or lack of details and documentation for the explanation.

When the state is ruling on whether the claimant should be eligible to collect unemployment benefits, the greatest emphasis is always placed on the final incident and whether the employee/claimant had control over the loss of their job. All misconduct should be properly documented in the final incident. If there is no final incident indicated, the case has a significantly lower chance of succeeding.

Listed below are 6 common mistakes employers make that ultimately make defending unemployment claims based upon a discharge rather difficult:
  1. Indicating the claimant was terminated for numerous issues instead of a specific final incident
  2. Not following company disciplinary policy
  3. Failing to provide a final warning prior to the discharge
  4. Allowing too much time to pass between the final incident and the termination
  5. Failing to secure signed witness statements
  6. Failing to present first-hand witnesses and proper documentation when needed

The Final Incident is Key!  We have all heard the expression “the straw that broke the camel’s back”. In the world of unemployment, the final incident is the straw. It is the very last event that led to either the company’s decision to discharge an employee or the employee’s decision to separate from the company.

*The final incident is critical and will be the first deciding factor in determining whether the claimant is eligible for benefits, and whether those benefits will be charged to the employer’s UI account.

The final incident directly impacts the state’s UI benefit eligibility decision. For example, if an employee has a record of being absent, but their final absence was due to illness, the state may rule it out of the employee’s control and award them benefits. When you are involved in defending a UI claim, it is important to know how the final incident can impact your UI case.

Make sure you follow these important guidelines:

Maintain detailed records. Keep information and formal documentation (paper trail) of events that led to the discharge. Documentation is important in substantiating that the employee’s actions were misconduct connected with the work. Most employers do not realize they can lose a UI case for discharging employees because of improper documentation.

The best way to document is to have specific reasons for the discharge and to back it up with detailed records, before taking final action. With proper documentation, you greatly increase your ability to win your case. Prior counseling and incidents may be relevant to the final incident as well. Be able to explain gaps from the date of the final incident and the last day worked, and/or the discharge date. If it is not written down, it did not occur. Documentation beats conversation any day.

Documentation for discharges and/or quitting should focus on the final incident. Relevant documentation should provide exact dates and details of last days worked, details of what occurred, and exact verbiage for an employee to quit or to be discharged. The reader should be able to understand what occurred in the final action and why the employer chose the action that was taken.

Documentation should be:

  1. Specific – Include exact dates and statements
  2. Clear and concise – Be objective and honest
  3. The employer’s signed acknowledgement and/or a witness that the counseling was presented

Documentation should not include:

  1. General statements or opinions
  2. Assumptions
  3. Subjective terms like “always” “attitude” or “should have, would have, could have, I think, it might have been” etc.
Just the Facts!

Provide Dates of Missed Attendance. When discharging someone for an attendance reason, it is best to provide exact dates. Do not guestimate. It can be as simple as making a quick note on a calendar to help you recall the exact date and specific action taken relating to each infraction – even down to the last absence (the final incident). This includes no-call-no-shows. The state will require the dates the employee was scheduled to work, whether or not they showed up, and the dates and reasons giving for not showing up if that is the case.

Misconduct should be handled very delicately and specifically. Be sure the employee is told the reason for the discharge. The employee could be eligible for UI benefits if they are told they are being discharged ‘because the company is going in a different direction, and they are no longer needed’ or ‘they are not a good fit.’

Be timely. If the documentation is not sent in a timely manner, it will not be considered. You may even lose the right to appeal the claim determination.

Once the state makes its eligibility decision, a determination will be issued indicating the decision and whether the employer’s Unemployment account will be charged. If the employer or claimant is dissatisfied with the determination, there is an option to appeal, provided there is documentation to support the appeal, and the appeal is made by the designated due date.

We hope this information has provided some insight into the importance of documentation for all employee-related performance issues, including the final incident at separation. If you have any questions regarding Unemployment, please contact your Client Account Manager. The Resourcing Edge Team is here to help you.

Libby Wells
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