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Termination for cause, or not?
posted at 4/5/2012 3:27 PM EDT
on Workforce Management
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Posts: 3
First: 4/5/2012 Last: 5/4/2012 |
We are about to terminate an employee for non-performance. She was hired for a newly created poisiton to increase revenues in one of our lines of business by selling "sponsorships" for our conferences. Hiring her, after 9 months, has made no difference in our sales, and instead has cost us a lot more money. We have decided not to rehire into her position, and instead to allow someone else who has been here for years in a similar position to take on her responsibilities. Our owner was not going to take issue with her collecting unemployment, because, essentially, we will also be eliminating her position. There was no gross misconduct. Then today, we found out that she has been frauding a State in our United States, by still claiming unemployment benefits from that state. We got a call from an investigator from that state. (She moved here last year - 9 months ago). Now, this more than ever makes our boss want to terminate her -- being an issue of integrity and, basically, breaking the law. Now he doesn't even want he to collect unemployment. Would this be considered Gross Misconduct or Cause on OUR PART. We don't even know if she's charged. All we know from the investigator is that TODAY the investigator spoke to her, and was told that our employee was NOT working for us. That she has applied, but didn't get the job. Should this new information even enter into our terminating discussions? Should it apply to her option to collect unemployment from her new state? |
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Re: Termination for cause, or not?
posted at 4/5/2012 7:44 PM EDT
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
In Response to Termination for cause, or not?: We are about to terminate an employee for non-performance. She was hired for a newly created poisiton to increase revenues in one of our lines of business by selling "sponsorships" for our conferences. Hiring her, after 9 months, has made no difference in our sales, and instead has cost us a lot more money. We have decided not to rehire into her position, and instead to allow someone else who has been here for years in a similar position to take on her responsibilities. Our owner was not going to take issue with her collecting unemployment, because, essentially, we will also be eliminating her position. There was no gross misconduct. Then today, we found out that she has been frauding a State in our United States, by still claiming unemployment benefits from that state. We got a call from an investigator from that state. (She moved here last year - 9 months ago). Now, this more than ever makes our boss want to terminate her -- being an issue of integrity and, basically, breaking the law. Now he doesn't even want he to collect unemployment. Would this be considered Gross Misconduct or Cause on OUR PART. We don't even know if she's charged. All we know from the investigator is that TODAY the investigator spoke to her, and was told that our employee was NOT working for us. That she has applied, but didn't get the job. Should this new information even enter into our terminating discussions? Should it apply to her option to collect unemployment from her new state? Posted by OMHR Great question. In my opinion, the additional information you have is not relevant to your termination decision. Furthermore she did work for you legitimately for 9 months and is entitled to unemployment comp based on that service. Just as an afterthought what if she had turned out to be the best salesperson you ever had and had made you a ton of money. Would you now fire her based on this information that is not conclusive? Just sayin'........ |
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Re: Termination for cause, or not?
posted at 4/6/2012 11:24 AM EDT
on Workforce Management
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Posts: 222
First: 9/29/2011 Last: 5/15/2013 |
Howard brings up a good point. While your employee's behavior is highly questionable, she hasn't been charged with anything at this point. I agree that this new information is disturbing but its not relevant. I think your best bet at this point is to terminate for cause based on performance if you don't want her to collect unemployment. However, you need to make sure that you have sufficient documentation and warnings for something like that to stick. If you don't have sufficient documentation, you could keep this person around in order to build the case, but that does your business little good at this point. If you do not have sufficient documentation, then you probably have no choice but to go the position elimination and lay off route. Which means she'll collect UI benefits and there's little you can do about it. |
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Re: Termination for cause, or not?
posted at 4/6/2012 3:04 PM EDT
on Workforce Management
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Posts: 20
First: 2/6/2012 Last: 5/3/2013 |
Hi: I agree with Howard7--termination pursuant to the employee's poor performance or investigation by a state is not an adequate basis for denial of unemployment comp. Dave Arnold, Ph.D., J.D. |
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Re: Termination for cause, or not?
posted at 4/18/2012 2:02 PM EDT
on Workforce Management
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Posts: 1
First: 4/18/2012 Last: 4/18/2012 |
In an involuntary separation, the responsibility of the employer is to advise the employee that they have the “RIGHT TO FILE FOR UNEMPLOYMENT,” the location of the nearest (to the company) and the companies registration number. Once the former employee files, an award letter will be sent to the employer to verify the information at which point the employer can challenge the award. The challenge will go before a judge. When the judge decides, and if against the employer, the employer can appeal. In other words, only the unemployment department can determine who is eligible. As far as the employee fraudulent act in collecting unemployment while working for you, report it to unemployment. It may have no bearing on whether unemployment award to the former employer. |
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Re: Termination for cause, or not?
posted at 4/18/2012 2:13 PM EDT
on Workforce Management
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Posts: 1
First: 4/18/2012 Last: 4/18/2012 |
In Response to Re: Termination for cause, or not?: In an involuntary separation, the responsibility of the employer is to advise the employee that they have the “RIGHT TO FILE FOR UNEMPLOYMENT,” the location of the nearest (to the company) and the companies registration number. Once the former employee files, an award letter will be sent to the employer to verify the information at which point the employer can challenge the award. The challenge will go before a judge. When the judge decides, and if against the employer, the employer can appeal. In other words, only the unemployment department can determine who is eligible. As far as the employee fraudulent act in collecting unemployment while working for you, report it to unemployment. It may have no bearing on whether unemployment award to the former employer. Posted by LegalManager I believe the requirements you've listed vary by state. We operate in four states and only one has this requirement. |
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Re: Termination for cause, or not?
posted at 4/18/2012 5:52 PM EDT
on Workforce Management
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Posts: 1
First: 4/18/2012 Last: 4/18/2012 |
You have two issues here. 1)Termination for just cause - You have to be able to substantiate if necessary for Unemployment. Do you have a contract or written understanding from when you hired her that she signed? Do you have performance reviews or warnings that she signed? Plus she may not file if she knows she is getting busted for the benefits she fraudulently received. Don't make any threats. Ask an attorney that specializes in Employment Law. Make an appointment and make sure you have everything together for that visit, so the attorney can give an informed opinion. Maybe send it over to the attorney before your meeting. 2) Fraudulently collecting unemployment - this is not your call. You can report her and then let that state pursue it. Then move on, you have a business to run. |
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Re: Termination for cause, or not?
posted at 4/19/2012 2:56 PM EDT
on Workforce Management
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Posts: 1
First: 4/19/2012 Last: 4/19/2012 |
If her job is to increase sales and she is not doing it, then she is not fulfilling her job duties. You can terminate for performance. With the way unemployment is working these days, even if you contest and show warnings, documentation, etc. they still end up being awarded unemployment because it has to be gross misconduct (theft, extortion, abuse, etc. Sadly poor performance does not qualify as gross misconduct). The issue you may run into with no performance documentation is that she could turn around and sue you and without warnings, PIP, documented conversations, etc, there is a good chance you will lose because she could claim you never told her she wasn't meeting your expectations. Ultimately, the decision of unemployment is up to the state, not to the employer. |
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