Sunday, January 16, 2011

Q: If I am fired from my job am I automatically disqualified from receiving unemployment compensation?

A: Not necessarily.

As an attorney who has handled over 100 unemployment compensation hearings, the most common issue I deal with is whether a claimant was "discharged for misconduct connected with employment." Probably a close second is whether a claimant was "discharged for failure to notify the employer of absenteeism and tardiness." Just as a layoff would qualify a claimant for benefits, so too would a termination that isn't for "misconduct."

The standard for what constitutes "misconduct" in Wisconsin arose in Boyton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941):

[T]he intended meaning of the term "misconduct" ... is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.

To put that language in lay terms, it means an employee cannot intentionally behave or commit acts in violation of the type of behavior that is to be expected of an employee. So, for example, if you're a janitor and continuously neglect to take the trash out, this could be considered misconduct which would disqualify you from receiving benefits. Every case differs and that is the reason why the Wisconsin Department of Workforce Development routinely holds appeal hearings on this issue because the same janitor who neglected to take the trash out may have had a good reason(s) which should allow for benefits.

Boyton Cab further states that:

On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

So, if the janitor simply had too many other duties and responsibilities and limited time resulting in unreasonable expectations, this could be considered "failure in good performance as a result of inability or incapacity," which should result in a qualification for benefits.

There are numerous other reasons why a termination would result in disqualification from unemployment benefits but misconduct issues are the biggest as employer and employee often disagree over whether the termination was deserved and that then leads to contested unemployment benefits.

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