Practical advice for employers when it comes to terminating employees for misconduct.
Our turbulent economic times, together with what many believe is a strongly pro-employee process, often make it difficult for an employer to win an unemployment insurance hearing. This can be extremely frustrating for an employer when the employee has failed to adequately perform his duties and was terminated for cause. There are, however, some practical ways an employer can terminate an employee for misconduct and increase its chances of winning at such a hearing.
- Employee Handbook. It all starts with written policies; employer policies should be clearly stated, easy to understand and applied consistently. Employers should have all employees sign an acknowledgment of receipt when they distribute any company policy handbook or policy update.
- Documentation. Implementation of company policies needs to be consistent with the policy and consistently applied amongst employees. All disciplinary actions from warning to termination should be documented and signed by the employee.
- Correctly Identify Employee Problems. Recognize which company policy was violated. Documentation should set forth specific company policies with which the employee failed to comply. If the attendance policy is being violated, make sure that the absences are not excused by law.
- Evaluate Excuses. Adopt practices and procedures designed to (a) get whatever excuses employees may have up front, before any termination occurs; and (b) require a sufficient basis in fact to support those excuses.
- Preparation. In response to an application for unemployment insurance benefits and in preparing for any hearing on eligibility, it is critical that (a) the employer demonstrate that the former employee knew of the company policies and failed to comply with them; (b) the employer notified the employee of the company policies which were violated; and (c) the employer warned the employee of the possibility of disciplinary action, including termination.
Unemployment insurance cases based upon misconduct can be won by employers, even if the odds are not favorable. The key to success depends on the facts of each case. It all starts with good employee policies, consistent application of those policies and solid documentation. The evidence should show that the employee was aware that his conduct would result in termination and that any belated excuses offered are too little, too late.
For assistance in developing company policies, including disciplinary policies; training managers and supervisors on how to implement policies and disciplinary actions; or how to develop a strategy for handling a Maryland Division of Unemployment Insurance case, please contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Business Planning & Transactions Practice Group.
