Reprinted from the November 5, 2007, issue of PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Standard UI Practices Help Keep UI Liability Under Control

Although unemployment laws vary by state, the general rule of thumb is that employees who quit are not eligible to collect, while employees who are fired, can. There are, of course, exceptions to every rule. Employees who are fired may not be eligible if they are fired for misconduct. States define misconduct differently, but it commonly involves:

• wanton or willful disregard of the employer’s interests;

• deliberate violation or disregard of the employer’s known rules;

• failure to meet normal expectations of behavior; or

• wrongful intent.

Taking the following actions can help convince a state unemployment board that an employee was fired for misconduct.

1. Publicize company policies. Employees must be adequately informed of the company’s expectations. Prove it by having all employees sign an acknowledgment of receipt and understanding of the company handbook, plus any subsequent changes to it.

2. Enforce policies consistently. You can’t condone certain behavior for some, but not for others. By failing to fire other employees for the same conduct, it will be difficult for the state board to believe that the employee engaged in conduct serious enough to disqualify him/her from collecting benefits.

3. Be clear that termination could be a consequence. Again, the key is employee knowledge. If an employee knows the rule, knows that termination is a consequence of breaking the rule, and breaks it anyway, it could be deemed a deliberate violation or disregard. This is why it is important to include in policies language such as “discipline, up to and including discharge.” Employees understand that termination is a possibility, and you’re not locked into a course of action. Then, specific verbal and written warnings should inform employees when termination is a potential consequence for future misbehavior.

4. Terminate within a reasonable amount of time of the misconduct. Allowing a long period to pass could be perceived as the employer condoning the action, and the termination is not truly connected to the behavior or the behavior is not the real reason for the termination.

5. Gather evidence of the misconduct. The burden is on the company to establish that misconduct occurred. The more solid your case that misconduct occurred, the better your chances that benefits will be denied.

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