One of the most common questions we receive from employers is, “What is the difference between misconduct and poor job performance?”   In basic terms, misconduct is a behavior issue, and poor job performance is a competence issue.  Sometimes these situations are very easy for the employer to differentiate.  Such as; an employee stole and was terminated (misconduct) vs. an employee is working hard but is not capable of meeting their quotas (poor performance).   However, an employer’s management of the situation can be the difference in a state viewing an incident as misconduct instead of poor performance.

OnPurposeA claimant discharged for poor job performance is seen as a non-protestable claim.  This means the employer should not protest the charges and is expected to pay benefits to the claimant.  Why? Because the employer has the burden of proof in any discharge case.  The employer must illustrate to the state that the claimant was responsible for their discharge.  Poor job performance is a poor hiring decision made by the employer. Therefore the employer is at fault.  The claimant did not live up to the expectations of the job and was terminated. Though there is nothing wrong with terminating an incompetent employee, it is not their fault.  The state’s case is that the employer should have hired someone better for the position.  Therefore leaving the employer responsible for the payment of benefits.

A claimant discharged for willful misconduct is seen as a protestable claim.  This means the employer should protest the charges and should fight the payment of benefits to the claimant.  Why?  Though the employer still has the burden of proof in this (and all) discharge cases, they have the ability to illustrate to the state that the claimant was, in fact, responsible for their discharge.  Misconduct is viewed as the claimant knowing a rule, policy, or employer expectation, then being coached and trained on this policy and still deliberately violating it.

So, where is the line?  Is it in warnings? Further training? Instructions? Documentations? Yes. It is in all of these as well as quantifiable expectations.  The key points in the state viewing a case as misconduct are 1. Behavior; meaning it is the claimant’s behavior that is a problem, not their capability to follow such a rule and 2. Deliberate or willful; meaning the claimant knowingly violated a rule and made the conscious decision to do so.

To dumb it down, one of my favorite examples is that of a custodian at a local school.  In the poor job performance version, the story goes; A school custodian was not cleaning the cafeteria floors properly each evening.  The custodian’s supervisor informed the custodian of the poor cleaning job and instructed him to do better.  Over the next week, the supervisor saw no improvement in the cleanliness of the floors.  The supervisor wrote a warning and instructed the custodian to clean the floors better.  The custodian still did not improve after a few more weeks of back and forth with his supervisor.  Ultimately the custodian was terminated.  This is poor job performance.  Though the custodian was not cleaning the floors properly, the state sees this as a poor hire.  The custodian in the story was not good at cleaning the cafeteria floors, or he had a different expectation/understanding of cleanliness than his supervisor.  The employer has no ability to prove to the state that the custodian knew how to do better, or had any intention to disregard the employer’s expectations.  The termination was not the fault of the employee, and therefore the state will grant him benefits.

In the misconduct version, the story goes; A school custodian was not cleaning the cafeteria floors properly each evening.  The custodian’s supervisor informed the custodian of the poor cleaning job and asked him how many buckets of fresh water he was using to clean the floor.  The custodian stated he was using only one bucket.  The supervisor told the custodian he must use three buckets to get the floors appropriately clean.  Over the next week, the supervisor saw no improvement in the cleanliness of the floors. The supervisor asked the custodian how many buckets of fresh water had been used.  The custodian answered one, again.  The supervisor wrote a warning and instructed the custodian that he must use three buckets.  The custodian still did not improve.  After each discussion with his supervisor, he admitted to not using the full three buckets of water.  This escalated to multiple warnings including language that the custodian’s job could be terminated if he did not improve in a set timeframe.  Ultimately the custodian was terminated. He was not terminated for incompetence and doing the job poorly.  He was terminated for his behavior, which was willfully disregarding the instructions of his supervisor.

This misconduct version of the story is not an open and shut easy win case for the employer.  However with proper written warnings and documentation that the claimant admitted to not following instructions, as well as knew his job was in jeopardy, the employer has a very good chance of winning the case.  As an employer, ensuring that you have clear cut expectations and rules of your employees, as well as a uniformly enforced discipline system you will increase your chances of state’s viewing cases such as these as willful misconduct instead of poor performance.

At CCC our claims analysts will work with you on each case, and if they notice there is not enough evidence or documentation to prove an employee’s intentional disregard of their employer’s interests they will advise you not move forward with protesting the case.  Your analyst will work with you to compile all appropriate documentation relating to a case if you can prove the employee was at fault.  Thus increasing your protestable claims rate, and win rate. Saving you in benefits paid over time.  Always feel free to reach out to your CCC team during the termination process or after if you have questions about what will help you win a case.


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