Defending your unemployment account

Add to that unpleasantness the notification that your company's state unemployment account is getting charged for that ex-employee's unemployment payments. In some cases, this isn't something I've contested. For one, I didn't have much success contesting it the first couple times. In some cases, I felt the ex-employee was entitled to collect. After all, if an employee isn't a good fit or isn't capable of performing the job even with adequate training, it's just as much my fault in hiring them.

But if an employee was fired for misconduct, in my view, they give up their eligibility for unemployment payments charged to my company's account. And through some reading and presentations I've attended, I've learned how to successfully challenge unemployment assessments such as these.

The differences in my more recent success in challenging unemployment assessments have less to do with the actual circumstances of the employee firings than with the documentation and careful accurate descriptions of the reasons behind the dismissal. Going through the process is not always time-consuming, but it can be. So how do you decide when it's a worthwhile endeavor? Here's what I've learned.

If an employee is telling the state he was fired for performance issues, but in reality he was fired for misconduct, the employer has a good chance to prevail. It's my understanding that states often view performance issues as a "green light" to pay the claim, but if it was actually a violation of company policy that led to the firing that can help the employer win an appeal.

In my written or oral statements to the unemployment department, I clarify if the employee was fired because of conduct and violation of company policies rather than "performance." I avoid discussion of the ex-employee's capability to do the job, to follow directions or to meet standards, because all those things deal with performance rather than misconduct.

It can be worthwhile to appeal a ruling if you have documentation or end up with firsthand witness statements that you might not have had at the initial unemployment filing.

When I have been successful in challenging unemployment assessments, I did not attend a hearing. Instead I submitted a completed questionnaire and was interviewed by phone. I was always asked, "Was the employee aware he/she was at risk of losing his/her job?" This is where proper documentation will help you.

If you have written up an employee for misconduct in the past, with a warning that further misconduct could lead to dismissal, you can challenge unemployment assessments. You need documentation of written warnings signed by the employee, acknowledging they've received the warning.

During an unemployment hearing or interview, start with the exact reason the employee was fired. A laundry list of misconduct over years is not going to help. If the employee was late yet again on the day you finally terminated him or her, state that as the cause, backed up by the written warnings you gave the employee that arriving late again could result in disciplinary action "up to and including termination of employment."

It's also useful to remain calm and polite, not defensive. State facts and specifics, not opinions or generalizations.

A few other things I've learned:

• Initially I thought an employee who quit could not receive unemployment. That's not always the case. States often will reject your appeal if the employee resigned after you gave a choice to quit or be terminated. This type of resignation is usually classified as a termination for unemployment purposes. Employees who quit often can get unemployment if they can show they quit "with cause" – because you significantly changed their job duties, reduced their pay, changed their hours or work days, etc. Bear in mind, that each state unemployment agency determines what change they consider "significantly."
• Think about liability before you appeal. Your unemployment liability for someone who worked for you only a few weeks or months may not be enough to warrant the time and related expenses to challenge.
• Employers have the burden of proof in unemployment appeals. That's why documentation is important. The person with firsthand knowledge of the employee's termination should be the one speaking to the unemployment agency, not necessarily an office manager.
• If you wait after the "final incident" to fire an employee, unemployment agencies may view that as "employer convenience" and you will often lose. Although not firing the person the day of the "final incident" or the day after but waiting until you find a replacement may seem to make sense, it could impact your ability to challenge unemployment assessments.

Rules and laws governing unemployment claims are generally written to protect workers, not employers. But if you handle the process correctly, you can help control your unemployment costs.