incompetent

globex

Resource people:

In Texas, one may terminate an employee for incompetency but at the expense of allowing a claim against Unemployment. The "advocate" stated I may not use the fact that the employee is not competent to perform the job for which he was hired, as reason to avoid paying Unemployment. Can anyone explain this and offer a solution? Since this employee could not perform his task, there was no other on in the company we felt he could be transfered to.

Jerry

Steve McElfresh

Jerry,

Let me see if I understand. You hired someone not competent to do the job required. You now recognize that and intend to fire the person. You would like to not inccur unemployment charges, which you will do if you acknowledge the person's lack of competence to do the job.

Do I have it right? If so, tell the truth and take your (rather small) lumps. It sounds like TX Unemployment guidelines say, in effect, that if the person is fired for reasons not of their own making, they get unemployment. Unless you can demonstrate that s/he misled you and fabricated qualifications or experience to get the job, it sounds like that is where you are.

Regards,

Steve Mac

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

globex

I am not aware I ever said we hired an incompetent for a position. We hired a person and made a serious effort to train that person for the position, which was coffee machine repair. He was given training on how to prepare for a service call and what to do. We gave him every chance to perform, which he did very inconsistently. He would even connect a water fiter backwards, even though there were arrows on it telling one the direction of flow of water.

On the week prior to his termination, I asked him if he really wanted to work here and do this job. I asked him to consider this question over the weekend and let me know his answer. The following week he did not have an answer. We then terminated him.

Does that clarify your assumption? If not, let me know and I shall try to clarify further.
Jerry

Mike Maslanka

steve is right...unless you have evidence that the employee's bad work resulted in damage to the company(like a guy driving a forklift through a door),then the employee is entitled to unemployment...good luck...regards from texas,mike maslanka

globex

Would your reasoning apply if you went to an incompetent Neurosurgeon? What about the last time you had your car worked on, say for brakes? Would you accept the explaination that the service tech was incompetent but he really is trying? And besides, he has not wrecked a car, yet. Or how about the last time you tried to get a "quality" answer from an IRS agent? I could go on forever. Why must any of us reward incompetence with Unemployment benefits?

Crout

Because those are the rules, Jerry, but if he/she hasn't been working for you very long your liability will be small.

Rockie

This is basically the law in South Carolina also. In SC, an employee either has to be grossly negligent or just plains walks off the job in order for unemployment to be denied. It is a very pro employee state. I have had employees who have had reams of documentation where they could do the job, but their attitude and interpersonal skills were so bad, that we could not retain them at the expense of good employees quitting. UI did not see this at the employee's fault and the bad apple was awarded unemployment. Severance packages here are seen as "gifts" and even if we retain employees on the payroll, including insurance benefits,they may still draw unemployment (double-dipping, in my opinion).

Anyway, unless it is gross negligence or walking off the job, it is almost a waste of supervisor's and HR's time to fight an unemployment claim.

Don D

Chill out Globex. The facts are the facts and the law is the law. Texas unemploymet legislation is not unlike most if not all of the other 49 in this particular regard. The law is based on the presumption (theory?) that people who are out of work because they could not successfully master the job tasks are out of work 'through no fault of their own'. This is not rewarding incompetence. Think of yourself as being, perhaps, unable to master some technical task that you weren't prepared or able to master.....and the employer counsels with you and separates you from employment there. You're not a bad guy because you weren't up to that particular task. This is not a situation of 'whose at fault here'. The basis for our frustrations with incompetent employees is most often misdirected. We tend to direct our anger at the incompetent employee when we should direct it at the manager who retains the incompetent employee. And, to the forklift incident mentioned above.....there are many, many situations where such people have drawn unemployment following an incident like that. That usually hinges on whether or not the employer can demonstrate that the act was a conscious violation of the employer's rules and was a deliberate and negligent act which disregarded the employer's interests.

njjel

In NJ if an employee fails to satisfactorily complete their probationary period, they may be terminated but there ARE eligible for unemployment. I would suspect the same would hold true here where you've hired someone inexperienced in the field you are training them for and they prove not able to do the job.

Shawn

It is the same deal in Ohio. If you terminate for insufficient performance then they get unemployment. I generally agree with Don. If they aren't up to the task then they aren't a bad guy. However, sometimes you have people who MAKE NO EFFORT and so they have poor performance, which results in termination. Those folks get unemployment too. That isn't right, but the unemployment office would never be able to tell the difference. I guess they have to be caught thieving the computer off of their desk to be denied unemployment.

globex

Chill out? My, my .... I never inferred the person was bad and in fact, he was very likeable. That was what made it difficult to terminate him. But the facts are still, he could not or would not learn his job. Oh, by the way, he is an honorably discharged navy person. I return to my concern about incompetent people at jobs that could be critical. However, I believe I have received enough information from everyone and appreciate the input.

Gillian

The bottom line to all of this is that unemployment and workers compensation regs are written to favor the employee. They are safety nets in case someone is out of work through no fault of their own - liberally construed, as the regs state in California. If the laws were not written as they are, terminated employees might go on welfare or there might be some other social downside. In general, the regs in all the states are relatively equal.

Margaret Morford

Maybe I can give you a perspective on this that may help. Here's Unemployment's thinking. No one knows your jobs better than you do. You have selected people for these jobs and know which ones are usually successful. No perspective employee can really know whether he/she can do the job. He/she is dependent upon you to select those that the company believes can do the job. If someone is unable to do the job, Unemployment says the company made a mistake in selecting this person. Therefore, they make you pay for your selection error by awarding unemployment to the individual. However, if the individual is terminated because he/she won't do the job, won't show up to work, quits or is fired for malfeasance on his/her part, Unemployment believes that's the employee's fault and he/she doesn't get unemployment.

Because most unempoyment is based on quarters worked, many employers will make a decision about the employee in their first 60 days of employment. The employee can still collect unemployment, but usually not from this employer.

Hope that helps make a tough pill easier to swallow.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D

>
>Because most unempoyment is based on quarters worked, many employers
>will make a decision about the employee in their first 60 days of
>employment. The employee can still collect unemployment, but usually
>not from this employer.
>
>Margaret Morford
>theHRedge

Technically, that may be true with this PARTICULAR claim. However, the next time that person files a claim, you may very well be an employer in their base period for THAT claim. But, as Steve Mc hinted earlier, an employer's experience rating, thus his tax rate, is relatively minimally impacted by the laying off of several employees. Unless you are a 'dollar for dollar' employer having the entire claim reimbursed to the system by you, it's miniscule in the scheme of business operations.

Theresa Gegen TX

In Texas, the employee is eligible for unemployment UNLESS his termination was for willful violation of a specific work rule or the employee voluntarily left the job. That is based on how the law is written.

If you go to the website of the Texas Workforce Commission, you can find their manual which gives actual case rulings that they have adopted as controlling. Incompetance covers a lot of ground. If the employee was warned about the performance issue, and continued to violate a work rule, they may be disqualified. That would depend on the specific facts and whether the employee willfully violated the rule. Just general poor performance won't disqualify them. Again, the laws are explained in detail on the TWC website. If you review the information available (which is really put in fairly easy to understand language), you will find that you have better success in defeating claims. You will know what the commission is looking for and will be able to point them to the relevant evidence and maybe even controlling authority.

Good Luck!