Protest Unemployment

dwitt

Hi all,

I have protested unemployment claims many times, some successful, some not. I am unsure how to handle this one. We decided not to retain an employee past the 60-day probation period. This employee made some very costly mistakes in the weeks preceding her separation. We follow a disciplinary procedure and this employee received the disciplinary notices, but at the 60-day evaluation (which all new hires undergo) the company decided not to retain this employee.

This employee was not happy and has threatened to sue for wrongful termination, etc.

I want to proceed with caution in protesting this unemployment claim - or maybe I should not protest? We didn't terminate for misconduct. Our reason for separation is that we decided not to pass this employee through the probation period. Does anyone have any input? It would be very much appreciated!

neveradull

I can tell you that in my state I wouldn't bother because I know I would lose. The first question I would be asked is "Did the employee commit these costly mistakes willfully?" I have found that when the employee answers "I was just confused or my employer failed to give me adequate training or some other BS" the employer loses. Unless your state laws are way different from mine save yourselve some wasted time and effort, unemployment based on sixty days wages shouldn't raise your rates. Threats of lawsuits don't impress me especially when I have all the documentation available to prove my case which I am assuming you have.

dbutton111

I agree with Never. But want to add . . . I've found that if you don't term for a specific reason one of the UE fall back positions is that you termed for the convenience of the employer, and not for something specific that the employee did/didn't do. For instance, recently we had an employee that was to be termed for excessive absenteeism (which we probably would have lost anyhow). We let her stay for 2 additional weeks because the contract she worked on was up the last day of the month (we're a gov't contractor). The contract got extended but we decided not to allow her to continue any longer and termed her. The UE said we didn't term for the infraction of excessive absenteeism, but instead termed at our convenience. Silly me, here I thought we were doing something good by trying to get this employee 2 more weeks of full pay, only to have an UE charge against us.

I can tell you one thing . . . it won't happen again under my watch!

HRinGA

I'm with you in that I've fought lots of UC before. It's the principle of the matter. I would protest and state her job performance was unsatisfactory. She made high-dollar mistakes, you documented, and for that reason you decided to term her employment. Your closing statement could read something like: Due to the nature of her errors, we decided not to extend her employment past the 60 days." That might come back to bite you. In the future, put the real reason why you let someone go. It will save you grief in instances like this.

ray a

Suppose this person does proceed with a wrongful termination suit. If you do not contest the UI, that may be used against you. A wily lawyer would say that since you didn't contest the UI, you obviously felt guilty for letting the ee go and to assuage your guilt pangs, you allowed them to collect UI. Therefore, you are guilty of treating this person unfairly and their client deserves a hefty settlement. For consistency, I would contest it. In NY, I may lose or I may win depending on the details.

SMace

I agree with Ray. Don't treat this person any differently. Contest truthfully and move on.

Whirlwind

I agree. I never say "Why bother?" I don't want to appear to treat some ees differently than others by responding to some claims and not others, so I respond the same way each time: I state the facts and let the chips fall where they may. And I would especially want to do so in light of the lawsuit threat.

Dutch2

I agree. We sometimes will term a bank teller for not being able to balance their cash. We have specific guidlines and every teller is held to the same standards. I have yet to win a UI case on for reason; but, I still try on everyone one of them. The UI letter usually says somthing along the lines of the ee did not intend not to balance and were doing their best and go in favor of the former ee.
Good luck

njjel

In NJ if an ee who doesn't pass the probationary period applies for unemployment and we protest it based on the fact they couldn't perform the job, the ee is penalized 6 weeks and then they are permitted to collect unemp., but the company isn't charged for it.

I am always given instruction from upper management whether to fight the claim or not so if you have been told to fight the claim I would do so of course and state that the ee failed to meet the qualifications of the job during the probationary period.

System

njjel,
How refreshing to hear a that at least one state has some reasonable rules regarding poor performance an its subsequent effect on UI. As you can tell by most of the other posts, most states just view terminations for poor performance as "not the fault of the employee" Its another way of saying "the poor soul just could not meet your demanding expectations, even though they tried desparately to please you..." What a crock. Why companies are required to pay people to sit at home because they can't perform satisfactory work is beyond me.

System

I don't think you should base your decision whether to contest too much on how it will look in a wrongful termination suit. There are plenty of good reasons not to contest unemployment claims, and I think the failure to do so is unlikely to stand up as evidence of wrongful termination, no matter how wily the lawyer. I would say it depends on the unemployment compensation standard in your state, and definitely on your chances of prevailing. In some cases you do have to choose your battles. Keep in mind that where a former employee is considering filing a law suit, sometimes it is the employer's decision to contest unemployment that really cinches that decision for them. I'm certainly not suggesting that the threat of litigation should convince you to do something you otherwise wouldn't do; I'm just saying that if this is a termination where you'd normally be on the fence about contesting unemployment, you may wish to consider whether you want to further incite the employee by contesting, especially if you think your chances of prevailing are slim. On the other hand, if you think they're going to file a lawsuit no matter what happens, you may want to contest and get it out there that you terminated for legitimate reasons. Also, if this is *not* a termination you'd normally be on the fence about (one way or the other), like Ray suggests, I'd do whatever's consistent with your usual practice. Though it sounds like you are on the fence, since otherwise why would you be asking for our input? :-)