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By January 4, 2018May 17th, 2021No Comments

Misconduct is generally defined as a deliberate or willful act within an employee’s control for which the employee knew, or should have known, he might be discharged. States generally deny or limit unemployment benefits to employees who are discharged for acts of misconduct; however, the burden of proof will always be on the employer.

Here are questions you may have to answer before a disqualification for misconduct is imposed:

  • Was the claimant aware of the consequences of his/her actions?
  • Were the claimant’s actions within his/her control?
  • Were the claimant’s actions deliberate or willful? For example, absences attributable to bona fide illness are generally not regarded as misconduct.
  • Was the employee warned prior to discharge? Usually, lateness or absenteeism without good cause must be supported by progressive disciplinary notices if a finding of misconduct is to be upheld.
  • Was the violation serious enough to warrant a discharge? An isolated minor incident of poor judgment will not rise to the level of misconduct in most states.
  • Did the discharge occur immediately subsequent to the final incident? If there is not reasonable proximity in time between the final incident and the date of discharge, it may create doubt about the reason for termination.
  • Were there any mitigating circumstances and was the employee given the opportunity to explain them? For example, lateness because of a verifiable accident is normally not misconduct; similarly, absenteeism attributable to illness is not misconduct unless there are other issues, e.g., failure to call in or produce required medical documentation.

Remember. Winning misconduct cases will depend on having good documentation.

Discipline Forms (and What to do When Employees Refuse to Sign)

Unfortunately, not every meeting with an employee to talk about a discipline problem goes smoothly. Emotions are usually always involved and sometimes the employee isn’t in the most cooperative mood. Often times, employees refuse to sign discipline forms and offer a wide range of reasons, such as:

  • “If I sign that, it’s an admission that I did something wrong when I didn’t.”
  • “I don’t agree with the supervisor. It didn’t happen that way.”
  • “I’m not signing anything you can use against me later.”

Employers hear these reasons, or variations of them, quite frequently. Therefore, it’s important to understand exactly why the employee’s signature is helpful, in order to respond to a refusal.

What is the signature for?

Its primary purpose in the employment law and unemployment context is to show the employee was simply aware of possible consequences for another similar incident.

What is the signature not for?

The employee’s signature is not an admission of guilt or an agreement with everything in the form. It’s merely an acknowledgment that the employee knows they face consequences if there is a repeat of the violation at issue.

Here are a few tips to try the next time an employee refuses to sign a form:

  • Explain that the employee is not admitting anything and is only showing an understanding of possible next consequences (many forms already contain pre-printed language to that effect).
  • Offer the employee a chance to tell their side of the story in their own handwriting on the back of the form or another sheet of paper and then have them sign and date the narrative.
  • Have a witness present who can attest to the fact that the employee was given the form and had the possible consequences explained to them. Then have the witness sign the form and note “Employee refused to sign.”
  • Put a line on the form and simply ask the employee to initial the form showing they received it.

Any of these strategies could yield important evidence that the employee was aware of possible consequences.

Published with the permission of EWS.

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