A restaurant employee shows up late on a regular basis. A claims processor consistently skips a step causing repeated errors far exceeding the allowed amount. These employees, and others like them, are let go on a regular basis and rightfully so. But, too often they are still able to file for unemployment successfully because of a lack of, or improper, documentation.
After managing restaurants for QUITE some time, I found out how important it is to have documentation and disciplinary actions be both consistent and precise. I’ve been amazed when I’ve heard a fired employee was collecting unemployment when I knew what they did to be terminated was blatant enough that it should have been open and shut. But, there are several ways that the lack of procedure, both voluntary and from being forgetful, can affect how likely an employee will win should it make its way to a hearing. And, with every state treating claims a little bit differently, sometimes a certain phrase written on a document, or a particular statement made in a hearing, can be the difference between winning and paying. Here are some of the more common errors.
You may have that great employee that helps whenever it’s needed, stays late, wants to learn new tasks, and performs those tasks better than most. But, they have a tardiness issue. You also have that crewmember that performs just well enough to get by, doesn’t provide extra help, and just wants to do their job and leave. They, too, have a tardiness issue. When you fire the second employee for being late and not the first, that’s when you run into a problem. Even with documentation, the lack of consistency will cost you. Believe me, I know it’s difficult not to, but you can’t play favorites.
Days can get busy, no doubt. And, sometimes, particularly with smaller, “mom and pop” companies, or even larger companies, like retail and restaurant chains, there isn’t a designated HR rep on site. So, a supervisor or owner has got to wear a lot of hats, and performing the functions to keep the business going will take precedence over certain administrative procedures. Now, you may have properly counseled the employee that repeatedly violated a policy, but if it isn’t written down, or it was, and there’s no proof that the employee acknowledged it, then you’re probably going to lose your claim. Employees that take claims to the administrative hearing level may not have had a strong track record concerning performance when working for you, but they will when it comes to having a “selective memory” when asked if they were counseled regarding their actions. Unless they sign the document, or you have a witness that signs stating they were counseled and refused to sign, then you’ll probably lose that claim. Proof is key.
Finally, there are jobs where tasks are to be completed by following a procedure. It could be sales, it may be assembling something, or it could be processing an unemployment claim. If you have an employee that isn’t performing the task to company standards, then you will have to let them go. This is where the specificities of counseling and documentation play a big role. If you never made them aware of what the standard is, they will likely win. Even if you make them aware of the standard, but let them go for “poor performance” because they didn’t meet it, they may win. Why? There is a difference between someone not being able to perform a task vs. not following a procedure. A successful defense may be provided by counseling and documenting that the employee was made aware on several occasions that tasks one through eight needed to be completed at least 97% of the time and that they repeatedly skipped task six. That can show neglect of company policy – not following procedure – as opposed to they just couldn’t perform the job even though they said they tried their best. So, if your salesperson continually forgets to mention a particular warranty, or your line worker only turns a screw 15 times instead of the required 18, make sure that’s what they are disciplined for. Not just a generic “poor performance.” To win any discharge case, you must be able to prove misconduct “intentional and willful behavior.”


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