Probably not. Terminated employees are typically entitled to unemployment insurance benefits. The primary exception to this rule is when the employee is discharged for “misconduct”. Misconduct has been defined and redefined as an intentional and substantial disregard of the employer’s interests. Employers bear the burden of proving to the State that the employee engaged in misconduct and therefore should not be permitted benefits. The unemployment insurance system is in place to protect employees who lose their job to no fault of their own, but employees who are deemed to have engaged in misconduct are found to be at fault for their own job loss and are therefore disqualified from benefits.
Some blatant examples of misconduct include: stealing, sleeping, drinking on the job, time theft, fighting, repeated insubordination, and excessive absenteeism. The key in almost all misconduct cases is whether the employer can prove the “evil intent” of the employee through competent and admissible evidence.
In cases where the employees’ performance, attitude, or even marginally inappropriate conduct is in question, the employer will be hard-pressed to meet its burden to demonstrate misconduct and deny unemployment benefits. By nature of the employer invoking the word “misconduct” in a termination notice or meeting does not make it so for purposes of unemployment insurance.
Aggrieved employees should always keep in mind that it’s the State and not the employer which gets to determine whether the employee is eligible or ineligible for unemployment benefits. In order to deny an employee unemployment benefits, the employer has the burden of proof to basically show that the employee’s conduct was outrageous and that he knew or should have known it while he engaged in the conduct. Proving someone else’s intent is no easy task and often requires first-hand witnesses, documentation, and shocking conduct.
If you have questions about whether you should qualify for benefits following a termination, please contact me.
Attorney Nicholas M. McLeod is an associate attorney with Alan C. Olson & Associates, S.C. If you have questions about unemployment insurance, please contact him at: [email protected]
