Employee asking to be fired..

[jetpack]

A friend of mine is a manager at a small company. A troublesome employee has
been loafing around a lot lately and directly asked the manager to terminate him.
I imagine that this is for unemployment? He can just quit (this is at will employment).

I'm trying to advise my friend on what to do, besides seeking council. I'm
not well versed on employment law. But, I've heard of many places working
diligently to document employee problems before firing them. Is that what
needs to be done here?

(edit: terminated not FIREd ;-)

 

[Live Free]

I thought if a person was terminated "for cause" (meaning fired versus being laid off), then they could not collect from unemployment insurance.

I think documenting problem behavior is wise just in case the terminated employee disputes the firing with either the unemployment insurance folks or with a private attorney.

 

[rodi]

Most megacorps don't fire unless it's super egregious misconduct. They lay off/riff/reduce numbers.... This way the employee has less of a law suit. Megacorps usually have periodic RIFs to get rid of the low performers anyway.

If the employee quits, they can't collect unemployment. So, yes, the employee is hoping to get laid off so they can collect unemployment.

If there are performance issues with the employee - your friend should document them. Your friend should also review them with the employee. And your friend should document the request by the employee to be laid off.

FWIW - my megacorp was doing layoffs/RIFs when I was close to hitting my FI number. I let one of my bosses know that if our department was effected, that I would volunteer to be high on the list to save someone else's job. Unfortunately a) I was not the first person who volunteered, and b) our department survived heavy RIFs unscathed - so no opportunities for severance and unemployment payout.

 

[pb4uski]

I thought if a person was terminated "for cause" (meaning fired versus being laid off), then they could not collect from unemployment insurance.

I think documenting problem behavior is wise just in case the terminated employee disputes the firing with either the unemployment insurance folks or with a private attorney.

+1 it sounds like the employee is just trying to set themselves up for unemployment by getting fired rather than quitting, but if they are fired because they fail to do their work then they generally would not be eligible for unemployment.

 

[Chuckanut]

State laws differ. If the owner wishes to fire an do-nothing employee for cause so as to avoid having to pay unemployment benefits, I suggest doing a bit of study first, especially the part about documenting everything one needs to prove the case.

Also, do-nothing employees can be a real negative influence on other employees. Others may wonder why they need to work so hard when Mr. Goof can do 1/2 the work for similar pay. Worse, is when the hard working employees get more work heaped upon them because Mr. Goof is not doing his fair share. That can't be good for long term employee satisfaction.

 

[MRG]

You said your friend works at a small company. Hopefully the guy wants unemployment. Your friend should get whatever they have for an H.R. department involved today. They should have a process; if not, it's what you've read, document every convesation. I always looked under my car before getting in whenever I had an employee acting "odd".:what:

Sent from my SAMSUNG-SGH-I337 using Early Retirement Forum mobile app

 

[Meadbh]

Your friend should be very, very careful. Firing someone without due process can lead to a lawsuit. There is no guarantee that this could not occur despite the employee's stated wish to be fired. Document everything.

 

[Midpack]

I thought if a person was terminated "for cause" (meaning fired versus being laid off), then they could not collect from unemployment insurance.

I think documenting problem behavior is wise just in case the terminated employee disputes the firing with either the unemployment insurance folks or with a private attorney.

+1 it sounds like the employee is just trying to set themselves up for unemployment by getting fired rather than quitting, but if they are fired because they fail to do their work then they generally would not be eligible for unemployment.

All true in states I've worked in BUT...a former employee who wants to be fired and collect unemployment will of course tell the unemployment office they weren't fired for cause. If the unemployment office does follow up with the employer (not a given IME) regarding 'fired for cause or not' - many employers by unwritten policy won't contest what the former employee has told the unemployment office because they don't want the hassle/legal and/or expense. What should be and what is are sadly not always the same...

 

[Rustward]

Your friend should be very, very careful. Firing someone without due process can lead to a lawsuit. There is no guarantee that this could not occur despite the employee's stated wish to be fired. Document everything.

The OP said this is "at will" employment. The employer does not need a reason to terminate.

 

[Meadbh]

The OP said this is "at will" employment. The employer does not need a reason to terminate.

True, but, as I understand it, proper procedure must still be followed.

 

[Lancelot]

If it were me, I'd consult with the firm's attorney. Sounds like the guy is angling for a nice vacation funded by Unemployment Insurance and maybe even sweetened with proceeds from a settlement. As others have pointed out Employment at Will can be challenged with Dismissal Without Cause.

I hope the manager has been documenting the employees idleness and insubordinate "Why don't you fire me?" statement.

Good luck!

 

[Texas Proud]

It probably matters what state... but I know here the unemployment office contacts the company to get their version... they even say that if you fail to respond you could lose your chance later in the process...

It is not that hard, nor does it take a lot of time and effort to give the office the info they need to deny a claim...

 

[Socal Tom]

Even if you fire for cause, they can stll be eligible for unemployment. I see it like this, if
you can pay him to show up to work and do nothing and piss off the other employees, of fire him
For cause.
Tom

 

[bUU]

Around here, it is relatively expensive to have company lawyers contest an unemployment claim, significantly reducing the value of doing so over just letting the employee get away with what they're trying to pull.

 

[donheff]

Fire the guy and get on with your business. The worse that will happen is your unemployment tax will go up a bit. Even that can be avoided (in some states, not so likely in DC) if you document the performance problems, contest the claim, and show up at the hearing. We regularly contested unemployment claims when I ran HR for a Federal agency and were fairly successful but saw a lot of variability state to state. It would be helpful if other employees witnessed his requests to be fired. Their testimony would support the case that his poor conduct was intentional.

 

[jerome len]

Your friend should start by documenting recent past conversations with his employee.....save date, content etc......that helps in case of law suit. Next, he should bring in a trusted employee to witness corrective meetings, then send copy of minutes to employee and employee file. these minutes should outline job, goal of meeting, agreement on measurement and time of measurement, etc. .......good luck......be careful.....this can be a problem if not handled correctly.

 

[jetpack]

The state is PA. If the fired employee does get unemployment, how does that affect
the unemployment tax. As I've said, this is a small company, and I'm sure they don't
want to deal with legal challenges.

 

[GalaxyBoy]

We had a guy who was ready to accept a position at another firm but saw that layoffs were happening and folks were getting pretty good severance packages. He filed a timesheet with 40 hours of overhead but didn't get laid off. So the next week he put down 41 hours. That did the trick!

Back to the topic, when I got laid off a number of years ago it was quite clear that termination for cause made one ineligible for unemployment insurance benefits.

 

[modhatter]

In California the law requires three written warnings for the same offense SIGNED BY THE EMPLOYEE as well as the manager. Some refuse to sign their write up, so then you must write on the write up "Refused to Sign", and then have a second person in management also sign it. Anything less than three write ups and they receive unemployment. The only exception was for egregious acts like attacking a customer, caught stealing money. Even use of profanity to customers could not be cause unless it was continuous and documented.

Sometimes, for the sake of not losing your customers, it's better to just fire them and pay the unemployment. (and they know it)

 

[youbet]

A friend of mine is a manager at a small company. A troublesome employee has
been loafing around a lot lately and directly asked the manager to terminate him.
I imagine that this is for unemployment? He can just quit (this is at will employment).

Since slavery was abolished on a national level long ago in the USA, the employee can indeed quit whenever he choses. This is regardless of whether you have "at will employment" or not.

I'm trying to advise my friend on what to do, besides seeking council. I'm
not well versed on employment law. But, I've heard of many places working
diligently to document employee problems before firing them. Is that what
needs to be done here?

It is always important to document why an employee is being terminated regardless of whether the employer contests unemployment insurance claims or not.

The situation you describe sounds rather bazaar. Your friend is a manager at a company and supervises others yet he/she isn't even modestly skilled in routine employee management processes. That would be a very uncomfortable situation to find oneself in. Is your friend a new manager? Did your friend take any course work in supervisory skills? Did the company offer any training?

 

[jetpack]

This is a five person company, and my friend is a relatively new 'manager' there. I'm trying
to get insight on why they can't just fire him... It's bizarre to me, but I know people here
are in his shoes, trying to get out of the job.. but only if it's the right conditions. No one
has explained to me what the downside to the company is on the unemployment tax is and
why they would need to contest the circumstances of the dismissal.

 

[Rickt]

I own a small business and have dealt with many employees like this who threaten the manager to fire them. Yes, they want to collect unemployment and/or welfare benefits.

If the employee has worked less than 28 calendar days your friend can terminate his employment immediately without cause. This will not result in an unemployment claim on your friend's business.

If the employee has been on the job over 28 days but hasn't worked too long and is wilfully slacking off, his behaviour needs to be documented and ideally the third write up should result in termination.

However, if the employee is being defiant, bad mouthing the management and/or owners, he/she should be immediately terminated to protect business from the negative influence. You can later fight unemployment claim explaining the circumstances that led to termination. It is best to terminate any employee immediately if his/her conduct is detrimental to business.

BTW, in this day & age every small business owner must purchase an "Employers Practice Liability Insurance" policy to protect the business/owners from a possible lawsuit. Legal fees in defending the lawsuit irrespective of its result can be financially devastating to a small business owner.

Good Luck

 

[Texas Proud]

I can only explain my state...

If the person gets unemployment for the full 26 weeks, that amount of money goes against the company's experience rate... IOW, the state will tax the company at a higher rate until it gets it back...

Still, it is cheaper to fire the guy and lose out on an unemployment decision than to keep him 'working'...


GET RID OF THE GUY....

 

[youbet]

This is a five person company, and my friend is a relatively new 'manager' there. I'm trying
to get insight on why they can't just fire him... It's bizarre to me, but I know people here
are in his shoes, trying to get out of the job.. but only if it's the right conditions. No one
has explained to me what the downside to the company is on the unemployment tax is and
why they would need to contest the circumstances of the dismissal.

The company does not "contest the circumstances of the dismissal" and no one has said that. If the terminated employee applies for unemployment compensation, the company may challenge or contest the application by showing that the employee was "terminated for cause" and therefore is not eligible for unemployment compensation benefits. Both the employee and employer may attend a hearing in person or by telephone and give their version of the circumstances. Some employees are excellent at documenting supporting circumstances. "My supervisor was new and unskilled. He lacked training skills and I struggled to learn from him. He often looked at me in a threatening way and I felt intimidated. Etc." Therefore, most companies only contest or challenge (same thing) cases where the "termination for cause" documentation is solid such as in cases of excessive absenteeism where accurate and timely records were kept.

The unemployment tax change for one additional claim would be dependent on the state the company is located in and the company's history of having terminated/layed off/fired employees who collected in the past. As a manager, your friend and the company owner should be very aware of this. If not, they should shut down and board up the place asap. Or hire an HR consultant service to help them. The rules vary significantly from state to state so you're not likely to get specific quantitative information here.

The employee in question CAN be terminated. But the employee can exercise certain employment rights (dependent on state and fed laws) and challenge the termination if he feels it violates some civil right or employment law. For example, if the employee is race A and is replaced by a race B person, he might challenge that he was terminated because of his ethnicity, etc. Therefore, the reasons for termination are always documented to show that the termination was for legal, non-civil rights violating reasons.

Recruitment and hiring of a "good" work force is critical. Even in "employment at will" states, an employee who turns out to be a poor performer or who has personal traits which make him a general pita on the job will successfully collect unemployment benefits if terminated. Generally, successfully challenging a claim requires that the employer show specific violations of documented company policies which commonly lead to termination. Examples: theft of company property, absenteeism, threatening or harming another employee, etc.

 

[Buckeye]

The family-owned company I worked for had a 'real' HR guy who used to tell the employee the company would not fight the employee's claim to unemployment if the employee resigned.

If the employee insisted on continuing his butt-head ways and did not voluntarily resign, the employee was told he would be terminated for cause (which had been documented) and the company would fight vigorously to make sure the employee did not get unemployment benefits.

The strategy seemed to work well. The business was one of the best to work for in the county so there was very little turnover.