Has your employer or notice of determination referred to your termination as “willful misconduct?”

Unemployment Lawyers - Call Today (412) 265-1090

101 write upsIt is common for employers to categorize very small incidents as major infractions in order to deny you unemployment compensation benefits. Real willful misconduct includes stealing, violence, falsifying time card, coming to work intoxicated, refusal to do work assigned by supervisor, repeated violations of a work rule after warning, or other major infractions at the workplace. Mere poor performance does not constitute willful misconduct.

Employers know that when they terminate an employee they will be dinged for unemployment unless they can prove the employee engaged in willful misconduct. A smart employment lawyer will advise the company that a failed attempt to seek unemployment benefits also adds another layer of protection against discrimination lawsuits with agencies such as the EEOC. Knowing this, employers frequently try and justify their termination by asserting that the employee engaged in willful misconduct.  This is what unemployment lawyers refer to as a “pretextual firing.”  The real reason for the firing is alleged poor performance, but the stated reason for the firing is behavior the employer claims constitutes willful misconduct. In fact, savvy employers probably have created a paper trail that would allow the Referee to conclude that the employee is problematic.

There is an industry around what is known as “progressive discipline.” The reason this is important to know is that employers know that a string of disciplinary incidents raises the inference that the employee is repeatedly violating workplace rules, i.e. unemployment’s willful misconduct provision. With this disciplinary method, employers give warnings of increasing severity and urgency for poor performance and misconduct. If the employee doesn’t heed the warnings it the employer has no choice but termination. For the purposes of unemployment benefits, this means the employee fired themselves.

When the UC office asks the employer to make a statement or respond to other questions, the employer uses this willful misconduct language to force an initial denial and ultimately push your unemployment benefits to a complex unemployment hearing.

Even if you think you have done nothing wrong, we often see employers bring in evidence to the contrary.

Knowing this, your next step is to understand how to win you unemployment appeal hearing after being discharged for willful misconduct.