When involved in an unemployment case, one will always hear “final incident”. The final incident is critical and must be explained in detail to the department of labor. If there is no final incident indicated, the case is considered weak and chances of success lower significantly.

According to the Texas Workforce Commission (TWC), the most common mistakes employers make that create difficulty in unemployment claims based upon a discharge are:

• Failing to give a final warning prior to discharge
• Inconsistent discipline between two similarly-situated employees
• Failing to follow the stated disciplinary policy
• Telling T.W.C. that the claimant was fired for an “accumulation” of incidents instead of a specific final incident
• Letting too much time pass between the final incident and the discharge
• Telling the T.W.C. that the claimant was “unable” to satisfy performance standards
• Allowing the impression that the discharge was really based upon a personality dispute
• Failing to present first-hand witnesses and proper documentation when needed

Scenario

When an employer discharges an employee who then files for an unemployment claim, the employer needs to indicate the final incident that caused termination to the Department of Labor.

Situation

For example, the employer discharges the claimant due to excessive absenteeism. The employee who was discharged then files for an unemployment claim. The D.O.L. will ask the employer and the claimant questions. One of the questions asked of the employer is, what was the final incident? In this particular case, the claimant was absent on 2/10/16 because she had no one else to watch her one-year-old child. Before being terminated, the claimant had received a verbal warning, first written warning, second written warning, final written warning, and a two-day suspension. Additionally, the employer provided the company’s attendance policy along with a signed employee acknowledgment (indicating that the claimant received the attendance policy).

Solution

Each state has its own unemployment insurance department and its own set of UI laws. Based on the above scenario, the claimant would be eligible for unemployment benefits. The employer did an exemplary job supplying all warnings and the company policy, but the final incident lost the employer the case. The claimant’s absence (the final incident) was not in the claimant’s control and there was no choice but to watch the one-year-old child.