Before a claim arises:
If an employee is about to be fired, go through a termination checklist; at the very least, ensure that the employee has been given the benefit of whatever termination procedures are outlined in the company policies and in whatever warnings they may have received. Before taking that final step, ask yourself whether termination would be fair and proper under the circumstances. If so, then proceed.
If an employee is quitting, do not have the person sign a boilerplate resignation form; have the person do their own letter, in their own handwriting if possible.
If an employee is quitting, do not let the person quit until and unless you are satisfied that the company has done everything appropriate to address any legitimate grievances they may have.
After a claim arises:
Respond on time to any claim notice, ruling, or appeal decision.
Be as specific as possible.
Be consistent in your responses, appeals, and testimony.
Avoid name-calling or gratuitous derogatory comments toward the claimant.
In discharge cases, vague terms such as "inability", "incompetence", "disloyal", "accumulation of things", and "bad attitude" are generally unhelpful in proving misconduct. Inability and incompetence are not misconduct if the claimant was trying his or her best (however, failing to do one's best is arguably misconduct); "disloyalty" is usually too subjective; "accumulation of things" is known as the "shotgun approach" and is understood to mean that the employer is not sure exactly why the discharge occurred when it did; and "bad attitude" often signals a personality dispute, which by itself is not misconduct.
Concepts such as "resignation in lieu of discharge" and "mutual agreement" are tricky, since both terms are generally interpreted as meaning that the company likely initiated the work separation and that the claimant did not have the option of remaining on the job. In such cases, the employer should be ready to prove misconduct.
In discharge cases, try to show four main things:
that the discharge resulted from a specific incident of misconduct close in time to the discharge;
that the claimant either knew or should have known that discharge could occur for the reason given;
that the employer followed whatever policies it has and whatever warnings were given; and
that the claimant was not singled out for discharge, but rather was treated the same as anyone else would have been under those circumstances.
In voluntary leaving cases, avoid references to how bad the ex-employee's work or conduct might have been, or comments on how glad the company might be that the claimant resigned. Instead, concentrate on the fact that the claimant left while continued work was still available and focus on how a reasonable employee otherwise interested in remaining employed would not have left for the reason given.
In all cases, have all your evidence and firsthand witnesses ready for the hearing.
Make your testimony brief, factual, and concise. Hearing officers like that!
Return to Businesses & Employers
Return to TWC Home