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 standards remained consistent with the employee’s demonstrated abilities and that any changes to job duties or supervisors were not substantial enough to negatively impact performance.

What about a claimant’s failure to perform nominal work tasks?

Another situation involving inability arises when the work is so simple that anyone should be able to perform the job. This argument arises from a longstanding Commission precedent, where the claimant, a cafeteria dishwasher, alleged an inability after the employer repeatedly found food particles and mildew on pots and pans that the claimant had washed and returned to the storage rack. The Commission held that “[w]here the work is not complex, an employee’s failure to pay reasonable attention to simple tasks is misconduct.” (Appeals Policy and Precedent Manual, Appeal No. 96-003785-10-031997.)

This argument is less effective with more complex jobs. However, employers can strengthen their position by focusing on specific, straightforward sub-tasks within a more complicated role. For instance, simply citing “poor performance” for a salesperson who fails to generate clients is insufficient. However, suppose the employer can demonstrate that a specific requirement, such as making a certain number of daily calls, was consistently neglected despite warnings. In that case, the employer has a much better chance of overcoming the argument of inability.

What if the claimant was not a good fit?

In situations where it becomes clear early on that an employee is not a good fit, the employer should consider whether it would be in the best interest of the company to sever the employment relationship early, rather than keeping the employee on, knowing they will not be a good fit. By firing early, the employer limits the taxable wages paid to the employee and may also limit a large chargeback resulting from an unemployment claim.

Conclusion

Although inability cases can be challenging to overcome, the employer can limit or eliminate the negative consequences arising from a claim of inability by asserting an appropriate defense or effectively managing the job separation. For questions about this issue or any other employment-related matters, employers can call our employer hotline at (800) 832-9394 or email us at employerinfo@twc.texas.gov.