By Rachel Lint
Let’s face it, an unemployment case that is based on a discharge for attendance can truly pose a challenge for your HR teams. You and your team may have experienced situations in which the documentation and details you presented did not result in a favorable decision. A key to understanding attendance cases and how the state may rule is understanding how much the final incident can influence the outcome.
What is a “final incident”? Simply stated, it is the “last straw” that leads to a discharge. And while the final incident is important in all employee discharges, it is especially critical when handling attendance cases. For any discharge case, the employer has to show misconduct occurred during the final incident. A general definition of misconduct is willful or intentional action or behavior that violates a known employment policy or rule. But each state ultimately has their own definition and laws on what constitutes misconduct for unemployment purposes.
With attendance cases, the final incident needs to show that the reason for that absence was within the employee’s control.
What reasons are considered outside of the employee’s control?
In general there are three main reasons an employee could provide that are considered outside of their control:
Another reason final incident details are so important with attendance cases has to do with determining the moving party in the separation. This can get tricky with cases involving job abandonment. Even though an employer may have to discharge an employee who stopped reporting to work, it is still the burden for that separated employee to prove that they had good cause to stop reporting. Because of this, job abandonment cases are most often viewed as voluntary separations.
When responding to a job abandonment unemployment case, it is important to provide the following information:
The dates the employee failed to report to work
A copy of your company policy as it pertains to reporting absences
The employee’s signed acknowledgement of that policy
Another key piece of documentation for helping build a strong unemployment attendance case is providing prior warnings for similar behaviors. Attendance cases are based on progressive disciplinary actions per your company’s attendance policy. Your company's policy should outline what actions need to be taken by management after a specific number of occurrences have taken place. These actions are usually in the form of verbal, written, and final warnings. Providing copies of these warnings or proof of conversations will help in strengthening your case. As with all attendance cases, you will also have to show the state that your company has a uniformly enforced policy and the claimant was aware of that policy.
If you want even more best practices for managing your unemployment costs, be sure to check out our recent webinar, Mock Unemployment Hearing: Medical Marijuana in the Workplace to learn best practices in:
Preparing hearing documents and witnesses
How evidence can be offered and received
The burden of proof and the impact it may have to a hearing
The facts that had the most influence on the final decision
And, if you want help managing the ins and outs of unemployment, like better understanding how discharge for attendance can impact your costs, check out our Unemployment Cost Management service. We can help you better manage the uncertainty about unemployment claim costs–both in actual taxes and time to process claims. Equifax has some of the industry’s top subject matter experts to help with improved workflow, better risk mitigation, and potentially lowering costs.
The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel.