UI Forum (ADP Unemployment Group)

First Quarter 2015



Unsatisfactory Job Performance – Wouldn’t vs. Couldn’t

Unemployment claims related to unsatisfactory job performance are often the least understood by employers and often the most difficult type of separation to disqualify.

Understanding the distinction between whether a separation is due to unsatisfactory job performance (which can often qualify a claimant for benefits) as opposed to willful misconduct (which will more likely result in a disqualification) is an essential first step. Using the correct terminology when responding to a claim is the second.

The following general guidelines can help you to identify whether you have a clearly demonstrated case of misconduct or merely a case of poor performance.

Misconduct vs. Unsatisfactory Performance

Confusion for employers often occurs when “poor performance” is erroneously used to explain separations. It is not considered misconduct if an employee has performed the assigned work to the best of his or her ability, but simply cannot meet the employer’s standards. This is because there is no finding of willful and substantial disregard of the employer’s interests. In our experience, unless there are specifics to prove otherwise, states will often rule “no misconduct” on performance issues alone.

On the other hand, if an employee has the ability to do the job and has already demonstrated the capability to perform at a satisfactory level, but currently is not working to that level, you may have a potential misconduct situation. In these cases, it can be necessary to document the steps taken with the employee in an effort to improve performance. Therefore, it’s important to avoid using the terms “poor performance”, “inability to meet standards”, or “inefficiency” if an employee is discharged for a willful or deliberate violation of rules or standards.

Definition of Misconduct

States generally define misconduct as deliberate and/or willful acts by an employee that violate local, state, or federal laws. It can also be defined as acts that could cause injury to another person or violate a company’s policy. The inability to do the job on a consistent basis will not be considered misconduct, even if an employee is warned that continued lack of performance will result in discharge. The employer must prove misconduct as defined by applicable state law in order to disqualify a claimant from benefits.

On the other hand, if an employee demonstrates an inability to do the assigned job or if there is an isolated instance of inefficiency, carelessness, or a “good faith” error in judgment, then he or she is simply considered not qualified. This typically would be classified as an unsatisfactory job performance situation.

Definition of Unsatisfactory Performance

As we have seen, most states consider unsatisfactory job performance as the inability of a person to meet company standards or the result of an employee being asked to perform beyond his or her capability. It is not considered a deliberate act. Discharges for unsatisfactory job performance will not automatically disqualify a claimant from unemployment benefits. Effective documentation can be crucial to proving the employee was terminated for misconduct, rather than unsatisfactory job performance.

If a new employee does not meet company standards because of poor performance, termination as quickly as possible could help minimize the employer’s exposure in a potential unemployment claim.

The Bottom Line

When looking at the situation, best practice recommendation is to ask yourself if the employee “wouldn’t” do the job (potential misconduct) or “couldn’t” do the job (most likely unsatisfactory performance). A best practice should be to focus on those cases that fall under your state’s definition of misconduct. This will help you to decide whether you’re looking at misconduct or poor performance. If you have any further questions or wish to discuss a possible performance case, please contact your customer service representative.

State Updates

Delaware: Effective with claims filed January 5, 2015 or after, a worker must serve a valid one-week waiting period in each benefit year before unemployment benefits can be paid. Unemployment benefits are not paid during this week of waiting. If a worker is laid off multiple times during a benefit year, benefits would be payable immediately once the initial waiting week has been served. Workers should not wait to file benefits as this will only delay the receipt of unemployment benefits.

More information can be found at
http://ui.delawareworks.com/news.php
or http://ui.delawareworks.com/documents/One%20Week%20Waiting%20Period%20FAQ.pdf

Georgia: Effective January 1, 2015, Georgia has revised its statute regarding Reasonable Assurance (RA) and has redefined the meaning of an “educational employer.” The term “educational employers” now includes “educational institutions” and “educational service contractors” for purposes of applying denial of unemployment benefits between successive academic terms under its RA regulations. While the amended law does not specifically contain terms like “bus drivers” or “food service workers,” agency officials have shared with us that the amended law treats all workers associated with educational institution work in the same manner. For example, unemployment benefits will not be paid if there is a contract or reasonable assurance of returning to work. Initial, additional, or reopened claims with an effective date on or after 1/1/15 will be adjudicated under the new law.

The amended law can be found in Section 4 at
http://www.legis.ga.gov/Legislation/20132014/144806.pdf

Idaho: On December 9, 2014, the Idaho Department of Labor (DOL) announced an unemployment insurance benefit filing scam occurring within the state. In this scam, an out of state organization requests personal banking information of claimants allegedly to initiate or complete a claim for unemployment benefits. The emails originate from the “Unemployment Advisory Department” with the email address support@us-benefits.org. The email warns that failure to respond will result in the shortening, reduction, or denial of benefits. Idaho is investigating the origin of this scam and states that the Idaho DOL never requests Personal Identifying Information (PII) through email and does not utilize a third-party to contact claimants. All unemployment-related business is conducted directly with the DOL.

More information can be found at
http://labor.idaho.gov/news/Default.aspx?TabId=1953&ctl=PressRelease&mid=3872&itemid=2775&AspxAutoDetectCookieSupport=1

Louisiana: The Louisiana Workforce Commission (LWC) has cautioned its unemployed workers to only use its official websites – www.louisianaworks.net or www.laworks.net – when conducting unemployment-related business. Recently, claimants have received emails from a third-party using support@us-benefits.org, and websites such as www.unemploymentdirect.com or www.unemployment-assist.com. This is a similar scam to what has been identified in Idaho (see above). These websites are not endorsed by the LWC or the Federal government. LWC does not request Personal Identifying Information (PII) via email and there are never fees associated with the filing of an unemployment claim.

A sample email of this scam can be found at
http://www.laworks.net/PublicRelations/PR_EmailScamAlert.asp

This communication is intended solely for the use of the individual to whom it is addressed and may contain information that is privileged, confidential or otherwise exempt from disclosure. The information provided in this communication is for informational purposes only and not for the purpose of providing legal, accounting, or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of any such professional. Such information is by nature subject to revision and may not be the most current information available.

ADP, ADP SmartCompliance, and the ADP logo are registered trademarks of ADP, LLC. Copyright © 2015, ADP, LLC.

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