What's the point? Can we ever win one of those things? I hear these questions all the time from my employer clients. They are convinced that the fix is in and they cannot possilbly win an unemployment compensation claim against their former employees. The truth is that employers can win and often do win but they must meet their burden of proof. Assessing your chances of success means understanding what the UC Referee needs to hear. Let's consider the three most common scenarios involving an employee claim for benefits.
The Employee Quits--Fight These
This should be an easy victory for the employer. The UC law is clear that an employee who quits is not eligible for benefits if his "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature..." 43 P.S. Sec. 802(b). In this situation it is not difficult to reach an initial determination that the separation was voluntary. The the burden shifts to the employee to convince the Referee that his departure was for a "necessitous and compelling" reason. This is a very difficult standard for the employee to meet. The case law construing the UC statutory language is clear that the allegedly intolerable work environment must be outrageous and unbearable.
An employee could also quit because of her health problems. In that case the employee has another tough standard. She would need to prove that there is something the particular job (say, prolonged sitting) that makes it impossible for to work BUT she is otherwise employable. That is because an employee is not eligible for benefits if she is physically unable to work anywhere.
The Employee Got Fired--Fight These
If the employee was fired then the burden of proof is on the employer to show that the employee was terminated for willful misconduct. This means that the successful employer is going to have to prove that the employee did something wrong. It would be impossible to list all of the things that an employee could do to get himself fired but for purposes of this section, assume we are talking about intentional egregious acts, e.g. bringing a gun to work, stealing a co-worker's purse, cursing out a customer. If the situation is one that is objectively outrageous then an employer can easily meet its burden of proof and prevent the payment of UC benefits.
The Employee Ignored a Work Rule--Maybe
If an employee was let go after repeatedly ignoring the employer's insistence that she follow a work rule then this is very winnable. The key for an employer to meet its burden of proof is whether it can present the Referee with written proof of employee counseling and well-established company policy. A good example would be excessive lateness. Rather than just firing the employee the first time that he shows up late, the employer should practice some progressive discipline. Write up a memo telling the employee that lateness will not be tolerated. Have him sign it and acknowledge it. If the lateness persists confront the employee with a witness, send an email to the employee with the time of day on it and print it out. Then fight this one.
The Employee is a Poor Performer--Let this Go
If a company has gotten rid of an employee who just cannot do his job then it should be enough that the employer does not have to deal with him. Let it go. This employee is eligible and entitled to unemployment compensation benefits. The fact is that being incompetent is not the same thing as willful or gross misconduct.
So like most things in life there is a time to fight and I time to lay down. Fight the cases that you can win.