Re: Termination

From: Cara Levinson
Email: CaraBLevinson@aol.com
Date: February 08, 2005

Comments

Very interesting question. On the surface, the answer should be "no," that employment-at-will and unemployment compensation (UC) are two completely different animals. UC is simply a system designed to pay workers who lose their jobs through no fault of their own. Yet, as a practical matter, if an employer terminates an employee at will, with no reason to justify the termination, the employer will lose its contesting of the UC. If an employer has any hope of successfully contesting a claim for UC, it must treat the employee as if he/she is entitled to progressive discipline. In other words, except for gross misconduct -- violence, major safety violation, caught-in-the-act theft, and the like -- the employer must treat the employment as if is NOT at-will in order to secure a denial of UC claims.

Accordingly, supervisory personnel must record all significant facts relevant to his/her termination. Such a record will carry much more weight if it is made at the time of each incident, rather than recreated simply to create a paper trail immediately before the termination. Since UC claims can be filed in Illinois against an employer's tax account as much as 18 months from the date of separation, written documentation is essential to recall the facts surrounding a separation. Documentation must be honest, fair and objective. It must also be specific; generalizations such as "poor performer," "lousy attitude," and "undependable" are relatively meaningless and should be avoided. In creating good documentation, act like a good journalist -- include who, what, where, when, how and (maybe) why. Finally, the UC hearing officer will look for "notice and an opportunity to improve." In other words, the employer should be prepared to prove that the employee knew in advance that the conduct was unacceptable and that continuing such conduct could lead to termination. Therefore, any written warnings should include: (1) a description of the problem or misconduct; (2) a detailed, specific description of the employer's expectations regarding the employee's future conduct; (3) an explanation of how the employer wants the problem resolved; and (4) what future actions may be taken if the problem is not resolved. I advise all my clients that all written documentation should include the following phrase: "Failure to improve by [date] may result in further corrective action up to and including termination."