Despite the best efforts of both a company and its employees, situations arise where employment must be terminated.  Whether it is the company letting someone go or an employee resigning, it is important to document the end of the employment relationship. When that situation arises, what should you as an employer do?

To help manage your unemployment insurance costs, it important to know that the supporting information provided to the Texas Workforce Commission is often the determining factor on whether your former employee will allow or deny the benefits sought. 

Employees filing for unemployment must submit a claim to the Texas Workforce Commission.  The TWC will then need to determine who initiated the termination.  Because most voluntary resignations are not eligible for unemployment, if an employee quits, he or she must show the resignation was for good cause.  However, if the company initiated the separation, the burden is on you to show why employment was terminated.  To successfully defeat an application for unemployment, you must have supporting information to substantiate your response to the claim. 

There are several common mistakes employer make which might result in the terminated employee being eligible for unemployment benefits. These include, but are not limited to:

• Failing to give a final warning before termination.
• Inconsistencies in disciplinary action between two similarity-situated employees.
• Not following the progressive disciplinary process if applicable.
• Stating the employee was termed for an accumulation of incident, not identifying a specific final incident.

Terminating an employee because of poor performance, failure to follow policies and procedures, or for any cause that might be defined in the written employment agreement requires proper planning and documentation before the termination meeting.  When documenting the basis for termination, the more specificity, the better.

If you are terminating an employee for poor performance, what were they doing or not doing that caused the unsatisfactory performance? Was the poor performance due to something within your power to change?

If the employee has violated company policy, what was the policy? Was it communicated to the employee? Was the employee warned of the consequences of violating the policy?

If the employee was terminated because of excessive absenteeism or insubordination, was the employee aware of the expectations? Was he or she warned? What did they say or do that was insubordinate?

When documenting the date and details of the final incidence, remember your HomeWork – How did you learn about the issue? How did it negatively impact your business? When did it happen? What happened? Who was involved? The final incident will often be the deciding factor when a determination of unemployment benefits is made, so the details matter.

If you need help in addressing employment issues arising, the attorneys at Waldron & Schneider are ready to assist.

The legal information in this blog entry is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction.  Further, nothing contained in this article is intended to create an attorney-client relationship with any reader.  This article and website are made available by Waldron & Schneider for educational purposes only and to give basic information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and Waldron & Schneider. The article and website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. For more information or questions you can contact us and one of our attorneys will be in touch soon.