You fired an employee, now they have filed a claim for unemployment benefits. How are you going to defend the claim.
Once an employee files a claim for unemployment, the VEC will contact each side to get the details of the claim to make an initial determination. Once the VEC has made an initial determination , either side has a right to appeal to an Appeals Examiner, who will typically conduct a hearing by telephone.
Initial Telephonic Interview.
At this stage, the VEC will make a determination of whether the discharged employee is entitled to benefits. The examiner will ask the employer for information on why the employee was discharged. In general, for the employer to win, they must show either: 1 the employee deliberately violated a company policy or 2. repeatedly failed to do their job correctly, or 3 the employee voluntarily quit without good cause..
Deliberate Violation of Company Policy.
This defense is pretty straightforward. The Employer must show: 1 the employee knew about the policy, 2 the employee intentionally violated it and 3 the employee knew that violation could be grounds for termination. To prove the first part, you either need to show that the policy was in the Employee Handbook that was presented to the employee, or was discussed at company meetings, or was otherwise brought to the attention of the employee. To prove the second part, you have to show the employee violated the policy in a way that was deliberate. If the policy is that all sales people must sell 3 jobs per day, and the employee did not meet that goal, that is usually not a deliberate violation. On the other hand, if the employee is required to file a written report every week, and the employee does not file the report, that could be considered deliberate. The third part is the one that sometimes confuses employers. The employer needs to show that the employee knew that violation of the policy good result in termination. For example, if the Employee Handbook says employees can take a 10 minutes break in the morning, and the employee took a 12 minute break, while that would be a violation, most employees would rightly believe that they would not be fired for such a minor infraction. The Employer must show that either the rule is so important that the employee knew that violating it would result in termination, e. g. falsifying a time card, or that the employee knew this was serious either because ether the Employer was known to have fired other employees for this conduct, or the employee was actually warned about the violation and the warning advised it was serious. The best way to show all three is if the employee did something, and the employer gave the employee a written warning, and shortly thereafter the employee repeated the same conduct. Once the employer produced a copy of the written warning, and testimony that the conduct has been repeated, usually the employee's claim will be denied.
Repeated Failure to Do Job.
While an employer can prevail on this defense, it is fairly tricky. If the Employer says the employee was fired because they were completely incompetent to do their job, the employee actually will win the claim. The law gives an employer a grace period to determine if an employee is competent, and if the employee is discharged in that timeframe, the Employer is not charged assessments for that employee's unemployment benefits. To prevail on this defense, the Employer needs to present evidence that for some period of time, the employee did their job properly, and that in the weeks prior to termination, their job performance dramatically decreased. The Employer can prevail if the VEC finds that the deficits in job performance arose because the employee stopped caring about doing their job correctly.
Another defense is that the employee voluntarily quit without good cause. Note that if the employer tells an employee that they can resign or be fired and the employee resigns, that is not a voluntary quit, and the employee will still qualify for benefits. In addition, if the employee had good cause to quit, the employee is also allowed to recover benefits.
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