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Unemployment compensation claims and appeals don’t usually involve attorneys, for a variety of reasons. The amounts at stake may not be high, although changes in experience ratings can have an impact. There may be no factual reason to contest a claim for it. If the work just isn’t there, or an employee just isn’t a good fit, there may be no defense to a claim. Alternatively, you caught the employee on camera destroying your equipment – a modern-day Luddite – and there can be no dispute that their employment was terminated for gross misconduct connected with their work. More likely, they were caught with their hand in the till.
“Gross misconduct” is “conduct directly related to the employee’s work performance that demonstrates a flagrant, wanton, and intentional disregard of the employer’s business interest and that has direct and significant impact upon the employer’s business interest, including theft, fraud, intoxication, intentional serious damage to property, intentional infliction of personal injury, any conduct that constitutes a felony, or repeated incidents after written warning of either unprovoked insubordination or public use of profanity.” That’s a mouthful. Note that insubordination and profanity are conditional grounds of disqualification: not only must they be repeated, but the employer must have warned the employee, in writing, that they might lead to termination in order to disqualify the employee from receiving unemployment benefits.
That seems counterintuitive, at first. Vermont is an at will employment state, after all. With some caveats, employers can hire and fire, and employees can come and go, for any reason or no reason.
The unemployment compensation system is different. The policy behind it is to spare employees the consequences of involuntary unemployment, so it’s liberally construed in favor of coverage, and disqualifications are construed narrowly. In addition, it’s the employer who bears the burden to show that the employee is disqualified from benefits.
That’s all challenging enough but there’s another obstacle employers often face in challenging unemployment compensation rulings. Appeals from claims adjudicators are to an administrative law judge. They’re heard by telephone. They’re limited to the exhibits admitted and testimony at the hearing. And that’s it. That’s all the evidence that will be considered, even if you later consult with a lawyer and learn that you might have prevailed if you offered additional evidence, or presented it differently. It may be that if you’d warned the employee about the consequences of their insubordination in writing you’d have prevailed in disqualifying them from receiving unemployment benefits. Consulting with counsel when you’re contemplating discharging an employee can help to place you in the best position afterward.
