INTRODUCTION: Many employers are missing an opportunity to reduce their unemployment compensation costs and are being frustrated in the process when they terminate an employee for “poor performance”. These employers also expect that the former employee will  be denied unemployment benefits. Poor performance is not a disqualifying reason for separation (in most states), and understanding the distinction between poor performance and repeated willful misconduct will save employers both time and money.

For employers in Florida, there are special provisions. Contact CCC for additional information. The claimant is still allowed benefits, but there is no charge if the employer has followed some basic rules.

THE PROBLEM: State employment security laws and regulations spell out clearly when a former employee who has been discharged, will be disqualified from receiving benefits. Every word of the sentence has meaning and the interpretation itself will always favor the claimant. In some states you must prove deliberate misconduct and in others either repeated or gross misconduct. In no state is poor performance alone a disqualifying reason.

TWO WAYS TO WIN:  There are two ways to win when dealing with poor performance. The first is easier than the second, but both will save money.

(1)First, try early evaluation. When employers recognize poor performance from a new employee and there is no willful misconduct,  terminate that person as soon as possible. Remember that employer liability for unemployment compensation is limited based on the length of time the employee worked for you and the amount of wages they earned. To delay an unpleasant decision from month to month, increases your liability and will result in more cost to your organization.

(2)The second way to win these cases is to analyze poor performance and to get at the cause. If it is able to be determined that the poor performance could be related to repeated willful misconduct, the employers case must be documented with written warnings signed by the employee. Employers should be alert to why these employees fail to meet work standards and recognize those elements of their behavior which might constitute willful misconduct. Look for insubordination, failure to complete assigned tasks, time away from their work station, attendance, tardiness, etc. Any one of these caused by itself can and should be treated as willful misconduct. The employee should be warned in writing that his or her job is in jeopardy and that another infraction will result in termination. When the misconduct occurs, the employee should be discharged for repeated willful misconduct and never for poor performance.

Poor Performance

If you have additional questions please contact CCC for additional information and training at (800)207-6926 or contact@corporatecostcontrol.com.


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