March 2016
There are several ways that an employer can protect itself from an adverse ruling in an unemployment hearing. Former employees can only prevail during the hearings if they can show that they were terminated involuntarily or resigned with good cause. Employing strategic business practices ahead of time, such as those listed in this article, can help employers rebut false claims and greatly reduce the risk of encountering an issue in the future.
- Enforce all rules and policies. Remaining consistent in the enforcement of policies is paramount. If employees have been violating a rule for an extended period of time without warning or discipline, it may appear that a termination for violating the rule later on is mere pretext. Similarly, enforcing the rule against some employees but not others can create the appearance of discrimination. Either of these scenarios diminish the argument that an employee was terminated due to a voluntary act of misconduct.
- Use written warnings. Maintaining specific records of events that may rise to the level of a “for cause” termination is invaluable in unemployment contexts. A documented disciplinary record may prevent former employees from making the claim that they were terminated due to an isolated event.
- State in warnings that policies were broken, not that performance was poor. Employees who are terminated due to incompetence or low levels of performance may qualify for unemployment insurance benefits, as the law treats the hiring of the employee in the first place as an error of the employer. When writing disciplinary records or employee reviews, do not overlook company policies that have been violated. For example, if an employee’s quantity of work has severely declined because he or she has been repeatedly violating the cellular phone policy while working, it must be made clear in any documentation that the reason for disciplinary action was due to the violation of the policy, not just because of the slump in productivity.
- Request written notice from employees who voluntarily quit, stating the reason why. When an employee decides to resign, a written document or e-mail from the employee that declares the reason for the voluntary resignation would dismiss any future claims that the employment relationship ended due to involuntary termination.
- Be aware of misclassification possibilities. The issue of “misclassification” often arises when an employer discovers that an unemployment insurance claim has been filed by a former contractor. If the relationship ends with an “independent contractor,” even due to an expired contract, the New York Department of Labor may find that the contractor was actually an “employee” by law. Employers must be diligent in identifying which workers are contractors and which are employees.