Dustin Paschal here again from Simon Paschal, PLLC. Today we’re going to answer a question about the unemployment process. We get asked a lot by clients to represent them or guide them through the different parts of the unemployment process. So I wanted to touch on that today.
So first let’s just kind of go through the unemployment process in terms of how it actually works. So after a separation by an employee, the employee would file an unemployment claim with the Texas Workforce Commission. You as the employer would receive notice of the claim and be given the opportunity to provide some data about the employee, including the reason for termination. The TWC may assign an officer to contact you and get more detailed information, but they also may not.
After that, there’s going to be a notice of decision that’s mailed both to the employer and the employee and both the employer and employee have a right to appeal that decision.
If an appeal is made, then a telephone hearing will be set up with an officer from the Texas Workforce Commission who will take testimony and review documents from both sides, employer and employee. And make a decision regarding the appeal.
Once that decision is made, you’ll receive notice and again there is one final appeal there, but it’s very rarely used so I won’t go into that. But that’s the general unemployment process.
But I wanted to touch on in that claim process, kind of the most common one, the one we deal with most often with our clients, and that’s when an employee is terminated for misconduct. There’s a misperception about misconduct. As employers, you probably have an idea of what you think misconduct is, but the TWC has a very specific definition with respect to misconduct and that is that the employee violated some rule or policy or law that the employee had the control or power to not violate and that it caused some sort of harm to the employer and the employer terminated the employee.
So there’s a couple of things to keep in mind there. First, if you’re going to be successful in defending a claim of unemployment based on misconduct, you’re going to need to have a specific policy. And the TWC is going to want that policy in writing. So you’ll need to have a specific written policy that addresses the situation for which the employee was terminated.
Second, you don’t want to go kitchen sink and you don’t want to go some compilation of several things that the employee has done wrong that led to the termination. The TWC will not consider that a termination for misconduct. The TWC wants one specific incident that led to the termination. So keep that in mind when you’re, when you’re taking the action.
You also want to make sure you understand and avoid putting in the documents that the employee was never able to do the specific item in question, or that the employee was unable to do the specific item in question. Remember, you have to show that the employee had the ability and the power to not violate the rule, but violated it anyway. So you can’t say this employee never was able to do that. You’ll lose on that unemployment claim.
So those are a few tips to keep in mind. So when you’re doing the discipline for the termination, the TWC is also going to look for some prior discipline. And you’re better off if that discipline is in writing rather than verbal. But if it is verbal, you’re going to want to have that person who gave the verbal discipline available for testimony. But if you can show, as an employer, that there was a specific written rule or policy that was in place that the employee was aware about, that’s important, and that the employee previously had been able to abide by that rule, but on this specific occasion failed to and was disciplined, you will be much more likely to succeed on a claim of unemployment based on misconduct.
So that’s just something to keep in mind as you’re dealing with these unemployment claims. And that is the tip for the day or the week here from Simon Paschal, PLLC. We’ll see you next week.