The Five Necessary Elements of a Misconduct Protest

Separation Reasons for unemployment claims generally fall into one of three general categories:

• Lack of Work
• Voluntary Quit
• Discharge for Misconduct

Of these reason, misconduct discharges are often the most challenging to employers when trying to win protests.  This is because the employers is considered to be the “moving party” (the party who initiated the separation) with the burden of proof.

With many states nearly automatically siding with the employee in these cases where there is a lack of effective evidence from the employer, it is critical for employers to provide adequate documentation in order to win their protest.

The following five key elements will help you to win your Misconduct Protests:

1. Details of the final incident leading to discharge:  The state UI agency will first want to know when the final incident occurred and details of what lead to the claimant’s discharge.  Tip: Do not provide a laundry list of offense – stick with the final straw that led to separation – don’t “muddy the picture”.
2. Action immediately following the final straw incident:  Do not wait too long to terminate employment after the final straw or you will lose your opportunity to protest the claim based on the separation.  State UI agencies do no look favorable on letting the claimant work a length of time after the incident and then firing them.  
3. Proof that the claimant was aware of the policy or reason for which they were discharged:  State UI agencies require that the claimant be aware of the types of things that can get them fired.  They also require proof of that awareness.  There are a few ways in which the employee can be made aware of policies, expectations, or practices.

• A signed copy of the employee handbook or policy
• A signed copy of training acknowledgement
• A signed job description
• Other signed documents that show that the claimant was made aware of job requirements

1. A pattern of offense:  In most situations, state UI agencies expect employees/claimants to be provided with an opportunity to improve their performance after being warned of not meeting the employer’s expectation.  Disciplinary action should be initiated and follow the employer’s progressive discipline policy – this shows that the employee was made aware of their shortfall in performance or policy violation and had been given an opportunity to improve.  In some extreme cases, progressive discipline may be skipped and the employer goes right to discharge (i.e., failing a drug screen, theft, workplace violence, etc.) in this case the employer does not have to show a pattern of offense
2. You must show proof of the misconduct:  Misconduct is typically defined as willful disregard of the employer’s best interests.  It is the “willful” part of this statement that causes most of the controversy and requires the most effort on the part of the employer.  In order to show a willful intent or disregard of the employer’s best interest, the first four elements discussed in this blog must be established.  Without meeting these elements, it is difficult at best to win a misconduct protest.

Misconduct can be a difficult protest to win, however, it is the most typical type of separation protested so getting your “ducks in a row” with respect to discharges is critical to controlling your UI costs.  As an added bonus, ensuring that the five elements listed above are adequately met will also protect you from other types of legal actions that may be filed as a result of the discharge.  For more information please visit us on the web at www.UnemploymentTracker.com.