Unemployment Claims Strategies to Combat the “Inability” Argument Among the most difficult unemployment insurance cases for an employer to win is one involving a discharge for poor performance, or inability to perform to the employer’s performance expectations. This article provides basic tools that employers can utilize in unemployment cases involving inability. What constitutes inability in the unemployment context? Generally, the employer must demonstrate misconduct related to the work to prevail on an unemployment claim in the case of discharge. Misconduct under the law is basically something that the claimant did, or failed to do, that 1) caused a problem for the company, 2) was in violation of a rule, policy or law, and 3) was within the claimant’s power to control or avoid. Cases involving inability generally fall under the third prong, in that a claimant cannot be penalized if they were never able to meet the employer’s performance standards. TWC Commission precedent has held that “where a claimant has performed her work to the best of her ability, her inability to meet the employer’s standards or inability to perform the work to the employer’s satisfaction does not constitute misconduct connected with the work.” (Appeals Policy and Precedent Manual, Appeal No. 1456-CA-77.) How can I counter an argument involving inability? To successfully counter a claim that an employee was unable to perform their job, employers must demonstrate that the employee was previously capable and subsequently experienced a decline in performance. This can be achieved by presenting evidence such as positive performance reviews, salary increases, promotions and supervisor observations that illustrate the employee’s past ability to perform the job satisfactorily. Crucially, the employer must also demonstrate that the employee’s performance subsequently fell below this demonstrated capability by providing specific examples, such as neglecting quality checks, disregarding instructions or exhibiting excessive absenteeism. The employer must demonstrate that job By JIKKU JOHN, Legal Counsel to TWC Commissioner Joe Esparza DEALERS’ CHOICE 18
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