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EASY MISTAKES THAT ARE EASY TO AVOID

 

It is obvious to any employer who has dealt with unemployment claims that such claims are hard to defend against, mainly due to the fact that the law itself is meant to help ex-employees, not employers. Strange, then, that some employers make mistakes before or after claims are filed that make the claims even harder to win. Presented here are the most frequent avoidable mistakes.

 

Prior to Claim

Terminating an employee in the heat of the moment

Failing to discuss the problem with the employee prior to termination

Terminating an employee without reasonable warning

Ignoring company procedures or prior warnings

Taking no action when employees complain

 

Post-claim

Missing a claim response or appeal deadline

Assuming that if TWC does not recontact the company, the claim has been dismissed or denied

Changing the explanation for the work separation

Failing to prove the case against the claimant

Failing to present firsthand testimony from eyewitnesses

 

Prior to the Claim - Mistakes made before a claim is filed

 

Terminating an employee in the heat of the moment

 

Despite the employment at will doctrine in Texas, an otherwise legal discharge will not necessarily be without a price. A discharged employee can always file an unemployment claim. In that case, it will be up to the employer to prove that the discharge resulted from a specific act of misconduct connected with the work and that the claimant either knew or should have known he could lose his job for such a reason. The mistake usually happens when the employer, acting in the heat of the moment, fires the employee without considering whether the employee has received the number of warnings that the policy manual says that employees can expect or whether the employer will be able to prove the misconduct in question.

 

Failing to discuss the problem with the employee prior to termination

 

Although no law requires employers to let employees know why they are being terminated (in the vast, vast majority of situations), it can be a mistake to fire someone without discussing the problem leading to termination and without giving the employee a chance to explain his or her side of the story. That having been said, there are some trouble situations where it is best just to say whatever it takes to get the employee out of the workplace without causing a scene or without giving a lawsuit-prone employee additional fuel for a lawsuit; if in doubt, consult your attorney. Still, TWC claim examiners and hearing officers generally look with favor upon employers who confront the soon-to-be-former employee with the problem and let the employee try to explain. For one thing, that avoids the related problem of giving a false reason for termination (almost always fatal to a case). For another, there is always the possibility that the employee will point out something that will make the employer realize that discharge might not be appropriate. Finally, it gives the appearance of fairness, which is important from a perception standpoint. (Remember, the TWC people processing the UI claims are themselves employees, not employers, and they generally have a well-developed idea of what they consider fair and right. Good, bad, or indifferent, that is the reality, so it should be taken into account.)

 

Terminating an employee without reasonable warning

 

There is no set number of prior warnings that must be given before an employee can be fired. However, there are two very important considerations here. First, since the test is whether a "reasonable employee" could have expected to be fired for the reason in question, the employer has to show that either the employee did something that was so bad, he had to have known he would be fired without prior warning, or that the employee had somehow been placed on prior notice that he could lose his job for such a reason. "Prior notice" would come from a policy expressly warning of discharge or from a (preferably written) warning to the effect that a certain action or lack of action would result in dismissal.

 

Ignoring company procedures or prior warnings

 

Here is another reason employers should ignore the temptation to take advantage of the right under the employment at will rule to change policies and procedures at will. Doing so can lead directly to losses in UI claims. Remember, an employer must show that the claimant either know or should have known that her job was on the line for the reason in question. That will be impossible to show, for example, if the employer fires the employee without giving the employee the benefit of progressing through whatever progressive disciplinary process the company usually follows. The problem also shows up if an employee gets a written warning stating that it is the "first written warning", and the list of further steps on the form shows a "second written warning" or "final warning", but the employee is fired for a subsequent offense without getting the (apparently promised) intermediate or final warning. The point is that the employer should try its best to do what it says it will do. If employees have been led to believe that certain steps will occur prior to termination, follow those steps, or else be prepared to lose the UI claim.

 

Taking no action when employees complain

 

Of course, not all complaints are valid, and some employees are chronic complainers. That having been said, nothing stirs the sympathy of TWC claim examiners and hearing officers like the story of a claimant with a halfway legitimate grievance, whose employer either took no effective action to address the grievance or retaliated somehow against the claimant. Complaints usually do not come out of thin air. Listen, investigate, act, and document your actions. Employers that seem responsive to employee concerns not only face UI claims with more confidence, but also generally have fewer worries about employee turnover and unions coming in.

 

Post-Claim - Mistakes made after a claim is filed

 

Missing a claim response or appeal deadline

 

A late claim response means that the employer waives any rights it has in the claim, including the right to protest chargebacks to its tax account. Filing a late appeal means that the TWC must dismiss the appeal without considering the underlying merits of the case.

 

In both cases, missing deadlines means that no matter how good the employer's case is, the employer will be out of luck if the claimant ends up drawing benefits. There is no alternative to filing claim responses and appeals on time.

 

Do whatever it takes to meet the deadlines. In an emergency, put the words "We protest." [or] "We appeal.", followed by "More information will follow later.", on a piece of paper, and then fax or hand-deliver it to any TWC office; such a response or appeal will be sufficient if filed by the end of the fourteenth day after the date the claim notice or ruling was mailed. The fourteen-day deadline is for calendar days, not working days. You can also mail the response or appeal, but it must be U.S.-postmarked by the fourteenth calendar day. If you mail it too late to get the timely postmark, bring a reliable witness with you who can later help you testify that you placed it in the U.S. mails at the time you did. If you get from this discussion that meeting these deadlines is important, you are correct.

 

Assuming that if no response from TWC comes, the claim has been dismissed or denied

 

UI claims do not simply go away by themselves. Even if a claim is disallowed by reason of insufficient wage credits, the last employing unit will get a ruling to that effect warning that a future valid claim might be filed. If you have responded to a claim or filed an appeal, yet receive nothing from TWC in a couple of weeks, something is probably wrong. Follow up! Call your local TWC office or the employer commissioner's office (1-800-832-9394) and ask about the claim or appeal status. If you lack confidence in whatever you hear from the first person you contact, do not hesitate to ask to speak with another person. Be sure to record the facts of the call: the name of the person you contact, the office where they work, the number you called, the date and time of the call, and what you were told. If you are told that no response was received from your company or that "nothing is in the system", offer to send another copy, and in the accompanying note, mention that you had sent the same thing earlier.

 

Changing the explanation for the work separation

 

Sometimes an employer will give one explanation for the claimant's work separation at the time of responding to the claim notice, but give another explanation when the claim examiner calls, when writing an appeal letter, or when testifying at an appeal hearing. It is almost a 100% certainty that the inconsistency in explanations will be noticed by TWC personnel, and the probability is almost as high that the TWC people will be suspicious of the change in the story. Many TWC people, quite frankly, take a changed work separation explanation as a sign that the employer is not credible and is just looking for the right words to get the claimant disqualified. This is why it is critically important to study the facts behind the work separation carefully and get it right the first time. Remember, if the deadline is near and the employer needs more time, it can file a quick timely response notifying the claim examiner that the employer wishes to be an interested party and will file more information as soon as possible.

 

Failing to prove the case against the claimant

 

Remember, in a discharge case, the burden of proving misconduct is on the employer. The employer must show that the separation resulted from a specific act of misconduct connected with the work that happened close in time to the discharge and that the claimant either knew or should have known she could lose her job for such a reason. Whatever the allegation against the claimant is, it must be proven with documentation and testimony from people with direct, personal knowledge of the circumstances. Generally, the evidence needed will be a copy of whatever rule or policy the claimant violated, proof that the claimant knew about the policy, copies of prior warnings (if applicable), and firsthand testimony from witnesses who saw the misconduct occur. The exact form of documentation will vary from case to case. For example, if the claimant was terminated for attendance violations, a copy of the attendance records will be needed.

 

Failing to present firsthand testimony from eyewitnesses

 

Most people have heard the adage "an accused has the right to face his accusers". That happens to be a fundamental principle of the American system of justice, which is in turn derived from the English legal system. This principle applies to UI claims as well. A claimant who is accused of something by the employer has the right to face the ones making the accusations. That is why firsthand testimony from witnesses with direct, personal knowledge of the situation leading to discharge is given the greatest evidentiary weight in a case. Such testimony outweighs anything else, including notarized affidavits. The only exception is in the area of drug testing, where the results of a GC/MS confirmation test indicating the presence of prohibited substances in the system of the claimant can help overcome the sworn firsthand denial of drug use by the claimant. While it is true that employers sometimes win with secondhand testimony that is only based on reports from others, that is the case only when the claimant fails to participate in the hearing at all. If the claimant denies the misconduct alleged, and the employer is unable to present firsthand testimony to prove its allegations, the employer will lose. For this reason, employers should make every effort to determine who the best witnesses are and ensure that they are available to testify at a hearing.

 

Unemployment claims can be difficult to win. Some are unwinnable. Many cases, however, can be won, and it would be a shame to lose a winnable case unnecessarily. Keeping the above pitfalls in mind can reduce the chance of losing a case that can be won. Common sense and following TWC instructions will go a long way. In problem cases, do not hesitate to consult an attorney experienced in employment law matters, and always remember that your UI taxes already pay for several attorneys in the employer commissioner's office at TWC - a major part of their job is helping employers deal with UI claims and appeals from an employer's standpoint. The number for that office is 1-800-832-9394.

 

 

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