Few things are more frustrating for an employer than terminating an employee for cause due to violation of company policy, be it for failing a drug test or some form of misconduct, and then that employee being awarded unemployment benefits. We here at McBrayer, McGinnis, Leslie & Kirkland, PLLC find this result to be all too common, and then it is typically an uphill battle to overturn the award. In many instances, the problem lies not in the award itself, but in the lack of foresight and preparation which preceded the termination of the employee. If the first time the issue of unemployment benefits is addressed is post-termination, then the key moment to address the issue has likely been lost.

Thankfully there are a number of straight forward steps which employers can take to try to ensure that an employee whose own actions have merited termination cannot then obtain unemployment benefits charged against their account. These steps address the fact that the Commonwealth, in addressing a claim for unemployment benefits, is bound by law to award benefits to one who appears to be otherwise eligible unless the employer can show a sufficient basis exists to disqualify that person from receiving benefits. See KRS 341.370. The key then is to be able to prove that which disqualifies the former employee, and in a termination for cause, the following can prove essential.

1.         Document, Document, Document

In reviewing a claim to unemployment benefits, the Commonwealth wants to see specific documentation as to why the employee was terminated, and in our experience, it ideally wants to see documentation where the former employee was specifically warned and/or advised that the behavior in question would result in their being fired if it occurred at all or after an initial warning.

Thus, if the employer has a tiered discipline policy which starts with a verbal warning, care should be taken to document the verbal warning in writing in the employee's personnel file. That writing can then be used as an exhibit when benefits are requested. It is all too common for a former employee to express complete ignorance as to anything verbally told to them by their employer, and then when there is no documentation to confirm the verbal warning or reprimand, for the Commonwealth to find for the former employee on the issue.

Additionally, if an employee is terminated for a specific violation of company policy (i.e., one contained in an employee handbook), then that employee should be advised accordingly and record should be made as to the specific basis for the termination. If an employer can prove clearly that the employee had reason to believe that his or her behavior could result in termination, it typically goes a long way in helping defeat an award of benefits.

2.         Make a note of witnesses to the behavior which resulted in the termination.

For instance, if an employee is terminated for threatening another employee it is important that the person participating on behalf of the employer have available by phone any witnesses to that event. Generally the more people an employer can bring to the table to support a termination for cause, the greater the likelihood of successfully challenging an award of benefits. Again, documenting key facts, such as all individuals present when an inappropriate event occurs, is vital so that one can promptly identify those individuals who would be most helpful at any hearing.  (READ FULL ARTICLE)