• David Manes

Winning your willful misconduct unemployment case

Oftentimes, when an employer terminates an employee the employee will be entitled to unemployment compensation. However, when the employer terminates the employee for breaking a company rule, or breaking a law, the employer may be able to have the employee’s unemployment benefits declined. Under the law this is known as willful misconduct. If an employee acts in a way that is adverse to the employer’s interest then the employee can be terminated and denied benefits. These cases are difficult and oftentimes complex. They usually require the skills of an attorney in order for the employee to win them and there are several ways in which an attorney can attack the employer’s claim of willful misconduct.

The burden is on the employer

The first thing that a skilled attorney can do is use the burden to his advantage. An employer has the burden of showing that the employee violated a company rule or committed an act that greatly damaged the company. A lawyer can use this burden to her advantage by attacking the weight and veracity of the employer’s evidence. She can object to the admission of certain evidence and poke holes in the weight of the evidence. For example, certain documents cannot be admitted onto the record unless someone at the hearing has first hand knowledge of the document. Additionally, if the employer has not kept detailed records of the alleged misconduct an attorney can point this out and use it to her advantage.

Proving the rule

The employer must also show that there was a rule that the employee violated in order to deny the employee benefits. However, it is not as simple as having the employer just state the existence of the rule. The employer must show that it applied the rule evenly and that the employee had knowledge of the rule. A skilled attorney will force the employer to meet these tests before they can move on to showing a violation of the rule.

Mere negligence

The employee’s conduct must be adverse to the employer’s interest and intentional. A mere negligent act that broke the rules is not enough to deny the benefits of the employee. For example, if an employee accidentally marked paperwork incorrectly, this may be characterized as a mere negligent act, instead of willful misconduct. An attorney will be able to bring out facts that may make the difference between conduct being viewed as negligent and conduct being viewed as intentional.

Having an attorney represent you at your willful misconduct case can be extremely beneficial. These cases can be complex and there are certain strategies an attorney can use to benefit you. For example, they will force the employer to meet its burden, show fair and evenhanded application of its rules and help you get your conduct characterized as mere negligence. If you are facing a willful misconduct case please contact Kraemer, Manes and Associates for a free consultation.

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