Do you want to avoid paying unemployment benefits when you terminate an employee FOR CAUSE? Of course you do. So you must be sure that you do the following:
Decide in the beginning if there is a good fit:
If you terminate employment in the first 90 days, you may not have to pay unemployment. Obviously, I am not recommending that you terminate someone, if they don’t immediately catch on to their job. However, you should know within the first 90 days if that employee has the attitude, the soft skills, the dependability and the work ethic to work for you. You will also know if the employee has the ability to be trainable in his or her position. If you find that your employee is lacking in any of these areas, don’t hope they will get better. It is most likely that they will not.
Understand that ineptitude is a defense:
Keep in mind that to avoid payment to the employee you must show that they were consciously at fault. That means that if your employee was just incompetent or couldn’t “get” the job, that employee will get unemployment benefits. If you can show that the employee had the ability to do the job, but intentionally failed to do his or her best, then you may avoid benefits. You need to discuss in the warnings, their ability that was shown at a particular time, but that because of poor effort or poor attitude, they are no longer doing the job competently.
Ensure that your employee understands that their action meets your definition of misconduct:
You should be able to point to your Employment Manual or List of Unacceptable Activities that has been signed by the employee to show that the employee knew that what they did wrong was a terminable offense.
If possible, give a final warning prior to discharge:
There is some misconduct that by its very nature requires immediate termination. However, usually you should do progressive discipline, and give a final written warning stating that at the next instance of the misconduct termination (and loss of unemployment benefits) will result (particularly if you have allowed the bad behavior in the past and not terminated). Then be sure to terminate immediately if the conduct occurs again.
Ensure that there is a “final incident”:
Don’t fire the employee for an accumulation of misconduct; rather terminate because of a specific and final incident. You may certainly refer to prior incidents to support your position, and your prior warnings, but focus on the termination for the final incident.
Do not allow too much time between the final incident and the termination:
The Department of Labor will look at when the last incident of misconduct occurred and the date of discharge – if too much time has passed, they will believe that you accepted the employee’s misconduct and terminated the employee at your convenience.
Follow the rules of the Department of Labor:
You should respond issue a separation notice, and respond to the Department of Labor within ten calendar days from the mailing date of their notice (not from when you receive it). If you don’t do so, you are waiving your rights.
Present the evidence properly in a Department of Labor telephonic hearing:
Failure to present firsthand witnesses and proper documentation. Evidence is firsthand knowledge of the specific incident that led to dismissal and documentation substantiating the misconduct.