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Employee Misconduct

>>TAMMY CAVENDER: Hi.  I’m Tammy Cavender, Director of Human Resources for the Missouri Department of Labor.  We are doing things a little differently this week, as I will be asking the questions for this third installment of the Human Resource Labor Talk Series.  Last week we discussed the importance for employers to have internal policies and that the policies communicate the expectations of the job to the employee.  This week we will be talking about how to handle violations of the policy; how misconduct may result in termination and how those issues relate to unemployment benefits and who better to talk about this issue than Gracia Backer, Director of the Missouri Division of Employment Security, the division that’s charged with running the state’s unemployment insurance program.  Gracia, I’m sure you have yet to run across two job separations that are identical, which leads me to my first question:  What should employers be considering when they reprimand an employee for violating the internal policies the employer has set forth?

>>GRACIA BACKER: The most important thing for the employer to do is to be consistent in how they handle the violations.  You cannot treat one employee one way for a violation and another employee another way for the same violation.  Inconsistent enforcement can change employee expectations and ultimately result in the employer losing ground in an unemployment hearing in the event they let that employee go.  It is difficult to reprimand someone if you are holding no one accountable for disregarding the expectations that you have established.

>>CAVENDER: Good point, Gracia.  And that leads us to our next question and we’re going to ask Doug Johnson from TALX, a company that represents thousands of employers, to provide some examples of progressive discipline that an employer may have as a part of their protocol when staff violate a policy.

>>DOUG JOHNSON: Most importantly, we’re going to be asking them for disciplinary action, notices; we want to know what is the employer’s policy.  Specifically, we want to know if a policy was violated, how did they violate it.  Always, we’re going to be asking for warnings and things that preceded an employer’s determination to ultimately fire someone.  The warnings really make up the case for the employer in most cases, when they are the moving party, when they discharge someone.

>>CAVENDER: And, Gracia, what should employers be doing each time that policy is violated and discipline occurs?

>>BACKER: Document, document, document and then be sure you document.  That is so important.  Employers need to keep a log of the employee’s actions when they do not adhere to their policy and document that the employee has been notified of the violation.  It’s also a very good idea for employers to have employees sign off on such a log so that they are fully aware of the situation and can take the necessary steps to meet the expectations.

>>CAVENDER: And how does documentation come into this process when we talk about the granting of unemployment benefits if the employer terminates the employee?

>>BACKER: It is the burden of the employer to prove misconduct on the part of the employee.  Documentation can assist the employer in providing violations of the policy and to show that the person acted willfully.  They need to make sure the violations were documented properly and consistently to show that there is a pattern of behavior and that the employer attempted to work with this employee several times.  The only solution was to let the person go.  Another key factor is testimonial and I’ll let Doug explain that part.

>>JOHNSON: Well, when we talk to our clients, we often times explain to them that the best evidence is first-hand testimony and first-hand knowledge of the events.  Those are the people that really witnessed what happened and those are the people that are in the best position to explain the facts to the adjudicator, then we’ll ask the employer to provide us with a statement that the individual has provided and that, technically, at that point is hearsay but if the case ever went to, for example, an unemployment hearing, then we would be encouraging the employer to provide the person who actually saw or witnessed what happened.

>>CAVENDER: Now, Gracia, even in cases where the employer did everything right regarding documentation and discipline, there is still a chance that that employee may be eligible for unemployment benefits.  Can you explain that?

>>BACKER: You are correct, Tammy, and that is because the courts have set a high standard of what constitutes employee misconduct; that the employee acted willfully to violate the rule or interest of the employer.  The employer needs to prove that there was willful intent on the part of the employee.  I will let Doug explain this part a little bit more too.

>>JOHNSON: I explain to them there’s a difference between people who can’t do the job and people who won’t do the job and so if it’s an individual who simply doesn’t have the ability to do the job, that’s not misconduct and, while the employer may let that person go, they need to understand that it wasn’t anything intentional on behalf of that employee’s conduct and so, therefore, they’re going to be entitled to unemployment benefits.

>>CAVENDER: hat we take away with us today is that employers, again, have to document and discipline consistently and that they need to fully understand that there is a difference in what they view as employee misconduct and how the courts actually see it.  Anything else you’d like to add, Gracia?

>>BACKER: I would like to say that it’s very important for employers to participate in unemployment hearings if they feel the employee demonstrated misconduct while employed.  As we stated over and over again, it is the employer’s responsibility to engage in the unemployment hearing process.  It’s their right.

>>CAVENDER: Thank you, again, Gracia.  Next week we’ll be discussing ADA in the Workplace.  Employers often fall short in understanding how to recognize a disability and accommodate them.  We’ll provide some guidance on this topic.  If you have questions, comments or concerns, you can visit us at labor.mo.gov or click on the links below this video.  Thanks.