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Don't drill loopholes in your case.

"It's not what you're saying when you're saying what you're saying, it's what you sound to the government like you're saying when you're saying what your saying." .... Sister Solzhenitzen


Everyone believes that Unemployment is designed to pay workers when they are laid off. Not in the least. The State has no responsibility at all to look for a qualifying reason why someone SHOULD collect Unemployment Compensation.

When an employer goes to fight a case with the State, he will usually have a laundry list of documented events to prove why so and so is a knucklehead and should not collect Unemployment. Then he wonders why the State won't listen to him. But the State has no responsibility to look for a disqualifying reason why someone should NOT collect Unemployment Compensation.

Well, if they are not looking for why they should pay, and they're not looking for why they shouldn't pay, then what in the heck are they doing down there?

Looking for loopholes.

Federal guidelines instruct the states: If, among all the several reasons for dismissal, there can be found one factor which does not disqualify the claimant, then that factor is to be regarded as the real cause of dismissal, all other reasons are to be ignored, and the claim is to be paid.

Read that over several times. It explains why so many times bad eggs collect with this system. Because if they can find a loophole to pay a claim, the State claims workers are instructed to squeeze through it, even if five other iron clad good common sense reasons for denying the claim are staring them in the face.

So what are these so-called non-disqualifying factors which will get a deniable claim paid? Here are a few of the most common loopholes which employers too often drill through their otherwise winnable case:

Inability:

As in "we fired the claimant for inability to do the job", "the claimant was incompetent", "the claimant never performed the work satisfactorily", "he seemed unable to grasp the job", or "she was unable to follow our rules". Inability is not misconduct. Believe it or not, inability is your fault as a mis-hire. You had a chance to test the person before you hired them. You need to show that the claimant failed to do her best; not that her best was not good enough.

Accumulation:

As in "we fired the claimant for an accumulation of things" The shotgun approach almost never works. There has to be something solid, substantial, concrete, and discrete. Concentrate on the one final incident -- that's what the courts do.

Mutual agreement:

As in "she left by mutual agreement". Claims examiners think "fired" when they hear that. If the claimant had no choice but to leave when she did, then she was discharged. You have to prove misconduct.

Disloyalty:

Be more specific than that. Stating that someone was fired for disloyalty without giving specifics makes claims examiners think that the discharge simply resulted from hurt feelings or a personality clash.

Poor attitude:

Again, be specific. It is not misconduct to be unhappy at work. A person's attitude is their own private business. Show how the claimant failed to get along with coworkers or customers, how that was affecting her performance and the performance of others, and how her actions were within her power to control.

"We asked for the claimant's resignation"
"We told the claimant to resign"
"We wanted the claimant to resign"
"We were glad the claimant resigned"
"We were relieved when the claimant resigned"
"The claimant's resignation saved us the trouble of firing her"
"She quit, but I would have fired her a dozen times if I'd had the chance"
(a direct quote from an actual case!)

Go right ahead and say any one of the above phrases if you want to lose your case and pay benefit charges for someone who up and quit. Remember: if the case is regarded as a resignation, then the claimant has the burden of proof. He has to show good cause, connected the work, for resigning when he did. But if you use terminology like the sentences above, then the claim examiner will think the claimant was really fired. Now the burden of proof shifts to you. And if you cannot prove misconduct, forget about winning the case .

Do not talk about inability, poor work performance, mutual agreement, disloyalty. Why talk about anything else at all if he quit?

Remember: It's not what you say, so much as what you don't say, that can really make the difference.

© Unemployment Tax Advisory Corporation (302) 998 8822