Fellow employers: if you feel a sharp pain in the rear after you fire non-performing employees, read this so you'll know why
By Henri D. Kahn
During the last four years I have discharged two employees for poor performance that was jeopardizing the efficient operation of my business that employs various other persons, and laid off another employee because the project was completed.
All three qualified to receive unemployment benefits because, according to the Texas Workforce Commission, in compliance with the State of Texas Labor Code chapter 201.012, “Definition of Misconduct,” the reason was not misconduct.
The TWFC's interpretation of employee misconduct when determining the eligibility for unemployment compensation for a terminated employee dern sure doesn't coincide with the reason I canned two employees for misconduct.
Texas Labor Code definition of misconduct:
“Misconduct” means mismanagement of a position of employment by action or inaction, neglect that (now get this) jeopardizes the life or property of another, intentional wrongdoing or malfeasance (bad execution), intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and safety of employees.
Further . . . the term “misconduct” does not include an act in response to an unconscionable act of employer or superior.
Mr., Mrs., Ms. Employer, please read this entire definition of “misconduct” again and let it sink in.
The two employees I fired deserved to be terminated, because in spite of consultations, suggestions, and admonitions, they repeatedly failed to carry out their assigned duties, thereby jeopardizing the flow and momentum required to keep a business operating smoothly to provide the service for which our customers pay with hard-earned dollars. The TWFC doesn't consider this misconduct. Hello?!
When your customer pays for a service and does not receive the service, you are “stealing” their money. I, personally, will neither steal anything from anyone nor will I condone any employee in my business to steal anything from any person.
As far as I am concerned, employees who continually disregard the responsibility to carry out their assigned task within a business enterprise are, in effect, stealing from their customers.
Severe? Perhaps, but totally accurate!
Well, I can't hold the TWFC responsible for the Labor Code enacted in 1993 by the Texas legislature; however, an astute study of this definition of “misconduct” is important for us employers.
The overall reality is that we have been and are being royally screwed by this unemployment give-away. Consequently, let's dissect this chapter 201.012 piece by piece to determine the Labor Code's definition of employee misconduct and the TWFC's commensurate interpretation of misconduct:
“An employee has to jeopardize the life or property by action or inaction of another” in order to be guilty of misconduct.
Truth is, when the work ain't being done due to action or inaction, the business suffers and will eventually be forced to terminate employees whose lives will be jeopardized due to loss of the property they need to survive. Not according to the TWFC's interpretation. To me, not telling the truth whether by omission or commission is still a big fat lie either way.
An employee's conduct must be due “intentional wrongdoing or malfeasance” in order to be guilty of misconduct.
The TWFC does not consider wrongdoing or bad execution of an assigned duty as misconduct. Well, if it's not misconduct, what is it?
When employees slack off or do the work incorrectly, because they are constantly making personal phone calls or simply daydreaming or arriving to work late regularly in spite of instruction and suggestion and admonition, they are, in effect, guilty of intentional wrongdoing and malfeasance.
Intentional? You bet, because these persons are adults and should know right from wrong.
I must agree with the Labor Code that intentional violation of a law is misconduct.
“Violation of a policy or rule adopted to ensure the orderly work and safety of employees:” the TWFC does not consider continual tardiness, excessive personal phone calls, or refusal to comply with an assigned duty as misconduct. You go figure!
Orderly work means momentum to ensure the proper efficient flow of work, which in the case of the two employees I fired, was definitely the case. Not according to the TWFC interpretation!
How about the safety of the other employees who might lose their jobs, because service is poor and customers go elsewhere?
People who are simply laid off, because of the lackadaisical attitude of other employees, are in danger of depression an amorality.
Exaggeration? Read the newspapers, watch TV, it happens!
Now I am really going to shock you.
These recipients of unemployment compensation money, that comes directly from the pockets of employers, are supposed to actively seek employment.
The question is: are their job-seeking activities monitored?
No! No! No! Why? Because, according to the TWFC, they do not have sufficient funds to conduct proper and effective monitoring.
This means “free lunch” for more than just a bunch a few lazy, unemployed, well-financed bums.
How do you like them apples, fellow employers??
So now you know from whence the pain comes.
And--
I hope George W. Bush keeps on sharpening the teeth on his buzz saw, 'cause he's gonna be using it lots come January 2005.
( Contact Henri D. Kahn with your insurance questions at (956) 725-3936, by fax at (956) 791-0627, or by e-mail at hkahn@kahnins.com .)
