Unemployment Claims: Figuring Out A Sometimes Mysterious System

By:  Johnathan K. Driggs, Attorney at Law
We all have stories about losing unemployment claims that we thought we should have won.  Losing such claims can leave us scratching our heads and feeling like the system can be pretty arbitrary.  However, once we figure out some of the ground rules used by the Utah Department of Workforce Services (DWS), eligibility for unemployment claims can become a lot less mysterious—and you can better prepare your terminations for a successful outcome.

When an employer is the “moving party” in a termination (i.e., the employer is the party that ends the relationship), the employer has the burden of proof to show “just cause” for the termination in order for benefit eligibility to be denied.  Just cause is shown by the employer proving the following three things:

  1. Culpability:DWS uses this term to determine if the employee’s conduct was “sufficiently serious” to warrant termination.  While DWS examines several factors, a good question to ask is: would a reasonable person disconnected from the situation think the conduct was termination worthy?
  2. Knowledge:The employee must know what the employer expects of him or her.  This usually requires the employee’s “knowledge” to be established through written documentation.  DWS usually likes to see a clearly worded written warning that is signed by the employee.  Many employers lose claims because a written warning was never issued prior to termination.  So, if you want to significantly improve your chances of winning a claim, issue a written warning prior to termination (note: a written warning may not be required when the employee’s behavior was truly egregious and the behavior violates a written company policy).  Otherwise, employers shouldn’t be surprised when they lose a claim in which they did not issue a written warning—it is simply one of the rules of the game that they are playing.
  3. Control:The employee had control over the situation.  In other words, it wasn’t someone else’s fault, responsibility, etc.

Keep the following things in mind when assessing your chances of winning an unemployment claim:

  • The employee usually gets the benefit of the doubt.  Ambiguous situations are often ruled in favor of the employee (remember, the employer has the burden of proof in just cause situations).  This can frustrate employers at times, but it is simply how the system is designed to work.  TIP: Developing the ability to step back from a situation and examine it objectively—appreciating that others could interpret things differently—can be very helpful in determining your chances to win a claim.
  • Delays in taking action work against the employer.  Let’s say an employee violates a policy that warrants termination, but the manager is really busy and doesn’t get around to firing the employee until the next week.  The DWS will likely interpret the delay as an indication of a lack of seriousness (i.e., if it really was a big deal, the employer would have acted immediately) and find the employee eligible.  TIP: avoid unnecessary delays once you decide that termination is warranted!
  • The moving party is responsible.  Let’s say an employee gives her manager notice that she is going to quit in two weeks.  The manager is uncomfortable with having the employee around after giving notice and says “I accept your resignation, but your employment will end effectively immediately, not in two weeks.”  The employee is now eligible for benefits because the employer became the “moving party” by moving up the termination date.  TIP: If you want to avoid liability in such situations, either allow the employee to work until the end of her notice period, or if you want the employee out of your workplace immediately, pay her out through the end of her notice period.

By gaining a better understanding of the “quirks” of the unemployment claim system, you can lower your UI costs.  We’ll discuss some more examples next month!

This article should not be construed as legal advice.  Copyright ©2012 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.

Jonathan K. Driggs is an employment law attorney with over 19 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

Call an HR Attorney as often as you need, for a low, fixed monthly fee!  In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates.  For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions.  Get rid of the attorney’s ticking clock!  For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”


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