You know that expression, “the straw that broke the camel’s back?” We’ve all heard it. In the world of unemployment, that straw is called the “final incident.” The final incident is the very last event that led to the decision to terminate an employee. In other words, the event but for which the termination would not have taken place. Many employers wonder why they are losing unemployment claims for terminated employees who have a long history of poor attendance or who have previously violated workplace policies. When there is a solid history of unacceptable conduct, yet the state still finds that the termination was not for willful misconduct, you can generally look to the final incident for the explanation.
The underlying principle in all unemployment claim decisions is whether the claimant is out of work through “no fault of their own.” To determine this, the adjudicators at the state workforce agencies will look into what’s known as the “work separation” issue, and the burden of proof will be on the party who initiates the work separation. If the claimant was discharged, the employer must prove that the work separation resulted from misconduct connected with the work on the claimant’s part in order to prevent the claimant from collecting unemployment benefits.
When the state is ruling on whether the claimant should be eligible to collect unemployment benefits, the greatest emphasis is always placed on the final incident even if there are prior incidents in the work history. A classic example of the final incident concept is the attendance case where the employee has a history of being late or tardy, but their final absence which ultimately resulted in their termination was due to illness. In this example, absence due to illness is nearly always considered by the state to be out of the employee’s control, and therefore is not considered misconduct. Even if the claimant had a history of attendance issues that were not related to illness, the state will usually find that the ultimate cause of the separation was out of the employee’s control if the final absence was due to illness.
To maximize the chances of having a favorable outcome when protesting an unemployment claim, there are some important things to keep in mind with regard to the final incident:
* Avoid being too general. Specifics help to make a case. For example, in the termination for attendance case, provide exact dates as well as specific reasons for the attendance infractions and especially for the very last absence or tardy (the final incident). If a termination is conduct related, provide as much detail as possible about the conduct. “Bad attitude” or being “rude to a customer” will often not give the state enough information to determine if misconduct occurred. What specifically did they say, to whom, on what date, under what circumstances, etc.?
* Were there witnesses to the final incident? Gather written statements from those witnesses.
* If there were prior incidents of misconduct or prior warnings, make sure the final incident that leads to termination is relevant to the prior incidents. For example, if the employee has a history of attendance problems, but the final incident that resulted in termination was a violation of the dress code, that will weaken the protest.
* If there are no prior incidents (i.e. the final incident was the only incident, and it resulted in immediate termination without prior warning), explain in detail why that single incident was egregious enough to warrant immediate termination without progressive discipline.
When it comes time to protest an unemployment claim for a terminated employee, always remember the straw that broke the camel’s back. The state will always want to know what that triggering event was, and it will weigh heavily in their decision to deny or allow benefits.