Are You Losing the Unemployment Claims Battle?
It’s probably comes as no surprise that unemployment claims have risen substantially in the past eighteen months, and while hiring rates seem to be increasing gradually, there’s not yet an end in sight as benefits continue to be extended.
Understandably, the number of companies disputing claims are also increasing, as is the number of employers who take the step to appeal and overturn a unemployment benefits award.
However, judging by the relatively low number of claims and appeals being won by the employers, not many are doing a very good job of fighting unemployment claims. Here’s why, and here’s how your company can do a better job.
1.) Poor or No Documentation
Many employers fail to realize that the documentation they provide regarding an employee’s work history and termination will be translated as evidence by the unemployment office. Simply put – No documentation = No evidence.
The burden of proof that the employee was fired for cause is on the employer entirely, and they must prove the termination was cause to deny benefits. While it is legal in most states to terminate an employee at will, many employers do not know that termination under at will does not deny an employee their unemployment benefits.
Included in this documentation of employment and termination needs to be verification that the employee was aware of company policies, such as signature of receipt for the employee handbook and other types of internal company training.
Additionally, if an employee is terminated for a violation not outlined in the employee handbook (give that link a look if you’re not sure if all of your “policies” are documented), employers are going to have a tough time proving that a violation even took place, especially if the employee was never warned of their behavior.
Around here we like to call these expensive little mishaps “unwritten policies.” Here are two extremely helpful blog posts discussing these all too common omissions and why you should avoid them.
If you need help with your employee handbook, drop us a line immediately. This is one of the most important pieces of a properly functioning small business.
2.) The Wrong Representative
Who usually handles the appeals hearings in your company? Hopefully Human Resources or an HR representative is speaking on behalf of the employer during the hearings, as it should be.
These hearings are defined by protocol and it’s important that the employer side be led by a highly experienced professional, such as the Certified HR Professionals at Integrity HR (yes, we provide this service to our clients). However, that usually is not enough.
Unless the representative witnessed first-hand the behavior that led to termination, it can be perceived as hearsay. Sure, it’s professional hearsay if HR is speaking regarding what the supervisor told them or even documented, but the hearing officer will need to hear it straight from the supervisor’s mouth for it to hold much weight.
The same is true for anyone who witnessed the behavior that led to termination – or who can attest to the employer’s consistent application of the policy in question. Having these witnesses available to provide personal testimony is key and employers must often determine if they want to invest the time to pull them away from their duties in order to participate, or if they want to risk the validity of their appeal.
If a witness absolutely cannot be present, a signed and sworn statement from the witness may be substituted (considering, of course, it is provided to the hearing officer and the claimant as required in advance of the hearing)
3.) Inaccurate Reason for Termination
This all comes down to why the employee was terminated. If the employee is terminated for attendance, this is what they are told, and this is what is provided in the unemployment fact finding interview, then that is what will be considered. Employers cannot be at the appeals stage and then add that performance was an issue, or attitude, or productivity, or anything else that was never before mentioned.
If these reasons apply, they need to be valid reasons from the beginning. No matter how many written warnings an employee may have for attendance, if they are terminated for poor work quality, proof of the poor work quality is going to be what’s required.
Remember, having a lawful reason to terminate an employee does not necessarily mean that that employee will be denied unemployment benefits. While terminating an employee lawfully should be what is of utmost concern, employers who wish to fight and deny unemployment claims must also be able to validate their reasons, and provide evidence to support them.
The Bottom Line:
The cold fact of the matter is that in this current economy with unemployment rates being what they are, odds simply are not in favor of the employer. If employers wish to fight unemployment claims now and moving forward it is up to them to raise those odds with the proper documentation, communication, and representation outlined above.
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