Termination of an Employee for misuse/misconduct on computer computer

[patee333]

What is the name of your state (only U.S. law)? California

Hello,

We have an employee that has recently been making lots of mistakes and just overall slacking off a lot lately. Her mistakes actually cost the company a lot of money and sales. We have sent her several warnings already in the past couple of months and she has not improved much.

So we ended up checking on her Internet Browsing History and her In-Office Chat Logs.

We hit the mother load. She has been using company time to browse for new employment and scheduling interviews.
And her chat logs with fellow colleagues in the office is full of malice, hate and personal information. It turns out she has been carrying on a sexual relationship with another employee as well. Which we realized was why she was constantly away from her desk when we needed her.
And she has been gossiping about it with another colleague within the chats. We realized that her entire day is taken up with these gossiping chats with her colleague and that's why she has been falling behind.

We are ready to terminate her and the second employee as well. But can they both collect Unemployment still due to what we have discovered?

Thank you.

P.S. I meant to say "company computer" in the subject line.

 

[eerelations]

She will probably get UI. You can appeal this, but given you are in CA, it's unlikely you will win said appeal.

If it was me? I would fire her immediately and not worry about the UI stuff. Whatever increase you might get in your UI premiums will not even come close to the loss of productivity (i.e., her salary + whatever she's not getting done) you're losing by keeping her on another minute.

 

[patee333]

She will probably get UI. You can appeal this, but given you are in CA, it's unlikely you will win said appeal.

If it was me? I would fire her immediately and not worry about the UI stuff. Whatever increase you might get in your UI premiums will not even come close to the loss of productivity (i.e., her salary + whatever she's not getting done) you're losing by keeping her on another minute.

We just did and gave her her last paycheck.

 

[adjusterjack]

We are ready to terminate her and the second employee as well. But can they both collect Unemployment still due to what we have discovered?

If you want any chance at all of putting the kibosh on her UI claim, you need to carefully study what CA defines as misconduct.

Read the following webpage and respond to the UI claim accordingly:

http://www.edd.ca.gov/UIBDG/Misconduct_MC_5.htm

 

[Zigner]

If you want any chance at all of putting the kibosh on her UI claim, you need to carefully study what CA defines as misconduct.

Read the following webpage and respond to the UI claim accordingly:

http://www.edd.ca.gov/UIBDG/Misconduct_MC_5.htm

You don't know California that well. We recently had an employee walk off the job with no notice...she just left because he didn't feel like working any more. UI? Approved.

 

[commentator]

Do you have a company policy regarding misuse of the computer? Do you have anything in a company handbook that states that personal use of the computer is forbidden and may be grounds for termination? If so, that can be the reason why you fired her, and she will not be quite so likely to draw benefits. If you fired her for poor performance issues, that's a spectacularly hard reason to fire someone and have them not approved for benefits, in every state.

While some states are more "employer friendly" and some states are a little more "claimant friendly" all the unemployment systems follow general federal guidelines, and even in California, cannot simply give people unemployment if they decide they don't want to work any more. The employers can and will complain, and if the unemployment law is not followed, it will certainly be noted at a higher level of appeal, and by the feds. Who do quality auditing of each state's system and will not allow them to be too dramatically either pro employer or pro claimant.

But when you have an employee who is a profoundly bad employee, progressive discipline for very specific behaviors that the employee can and should correct are the way to do it. For example, if this person failed to complete tasks due to taking excessive break time on xx day, and received a warning about it, and then on xxx day, the same situation was repeated, and then on the third time this happens the person is terminated for that same specific behavior , they probably will not be approved for benefits. (In any state, I maintain that my examples are fairly general.)

If however, this person has worked for you for a long time, which is what usually happens it becomes another thing. You let the bad behavior slide and slide until it gets SO bad. And by this time, there are like fifty different times when you should've taken action and dealt with the various bad behaviors, and you did not. And then when you finally get around to firing the person, you have a cart load of grievances and reasons, and offenses, all sorts of random reasons why you fired her, including that she was spending her time not getting your work done, griping and gossiping, setting a bad example for the other employees, bringing down morale, carrying on a relationship with another employee, misusing her computer, cursing and carrying on a hate campaign against company management, etc etc etc......

Believe me I have seen some doozy reasons given for firing which actually did not in and of themselves reach the definition and standard of gross misconduct. Throw them all together, and they still do not meet the definition and standard of a progressive discharge, which means that the person was aware of the behavior that they were doing that was unacceptable to you and that you had warned the person and given this person the opportunity to change the behavior and keep the job, and then they voluntarily chose to continue doing whatever it was (and it helps if this is something very concrete, like being away from her desk, or misusing the computer, or failing to complete xx report on time)

And they end up with a terrible employee who should've been fired years ago getting her claim approved. If I were you guys, I would definitely respond with all the information about the times you warned the employee for her behavior, and with the records of her failure to improve the behaviors she was specifically warned about. Stay away from multiple reasons and offenses, come down on the specific things she was doing that she should have known better than to do. And you still may or may not win this one. Let it be a learning experience for your future handling of employees. Monitor that computer usage, for one thing. And let the employees KNOW you are going to do that, let them expect it.

Have a good clear employee handbook with clearly understood policies. Have each employee sign them. If you have a problem employee, GET RID OF THEM QUICKLY. Even if you have to let them go and let them draw benefits charged against your account, raising your rates, the less time they've worked there, the more you cut your losses. Progressive discipline is the way to do it, even in a claimant friendly state, a claimant cannot argue against clear cut progressive discipline by saying, "I did my best, I didn't know they were unhappy with my performance."

 

[patee333]

So she's been gone for 2 weeks and of course she applied for EDD. We are going to try and fight it but does EDD let the claimant know of the reasons we will list to deny her? Or is that information kept confidential from the claimant?

 

[Zigner]

So she's been gone for 2 weeks and of course she applied for EDD. We are going to try and fight it but does EDD let the claimant know of the reasons we will list to deny her? Or is that information kept confidential from the claimant?

They will definitely see your reasons...not to mention hear them if this gets to an appeal.

 

[cbg]

Of course they will tell her the reasons you provide. They're not going to withhold that information from her, any more than they're going to withhold what she said in her claim from you.

 

[commentator]

However, they won't tell anybody else, except those directly involved in this claim. Unemployment insurance is what they call a "closed system" in that information which comes out in this claim is not public knowledge, cannot be used or obtained by another prospective employer or the local news media or someone else. The only people who have a right to this information are the claimant and/or their legal representative or the employer and/or their legal representative.

Why be shy? You certainly haven't done anything illegal in regard to unemployment by firing your employee for whatever reason you have to give them. They can't come back later and sue you for "wrongful termination" or anything like that based on information that came up in their unemployment claim. It's not like you are worried about hurting their feelings or ruining their references or something. If you choose not to fight the claim, simply do not respond to the inquiries that will be sent out to you by EDD. But frankly, you have nothing to lose in this situation but a little of your time by giving them the information they ask for, and you may be able to save yourself from having to pay a higher unemployment tax rate.