Poor Job Performance and Unemployment Claims

By: Mario Hernandez

Legal Counsel to Commissioner Aaron Demerson

As employers in our great state know, hiring is not an exact science. In an ideal world, every new hire would be perfect and never have to be replaced by the employer. However, the reality is that some employees will be great additions, while others will not. At some point, an employer may conclude that an employee is not meeting expectations and will discharge the employee due to poor job performance. But what if the former employee files an unemployment claim? Will the poor job performance amount to misconduct connected with the work?

Inability to Meet the Employer?s Expectations

Note: The links in the paragraphs below are taken from the Texas Workforce Commission?s Unemployment Benefits Appeals Policy & Precedent Manual.

In the context of unemployment claims about job performance, a key element considered is whether the claimant?s poor job performance was within claimant?s power to control. This is due to the concept of inability to perform the work to the employer?s satisfaction. All it usually takes to make inability an issue in these types of cases is for claimants to allege that they were working to the best of their ability. This can present a challenge for employers because, generally, inability to meet the employer?s standards does not rise to the level of misconduct connected with the work if the claimant was working to the best of the claimant?s ability. (See: Appeal No. 1456-CA-77: https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf#page=349). ?Another example of how inability might become an issue in these cases is if the employer states that the claimant could never perform the job to the employer?s satisfaction. (See: Appeal No. 1123-CA-76: https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf#page=349).

Prevailing in Job Performance Claims

While unemployment claims about job performance can potentially be challenging, it is still possible for the employer to prevail. For example, establishing that the claimant?s work was not complex, and that the claimant failed to pay reasonable attention to tasks could establish misconduct connected with the work. (See Appeal No. 96-003785-10-031997: https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf#page=356). Furthermore, if the employer can establish that there was an unexplained drop-off in the claimant?s work performance, when the claimant had previously performed the work adequately, misconduct connected with the work could be found. (See: Appeal No. 1781-CA-77: https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf#page=354). Moreover, a claimant?s negligent performance of the work has also been found to be misconduct connected with the work. (See precedents under ?MC 300.40 Manner of Performing Work: Careless or Negligent Work.? here: https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf#page=356).

Conclusion

In an unemployment claim about job performance, a claimant could contend that they could not meet the employer?s expectations despite working to the best of their ability. If that occurs, the employer has a better chance at prevailing on the claim if it can establish that the final incident of poor job performance was close to the time of discharge, was within the claimant?s power to control, and that the claimant knew or should have known that failure to improve would result in discharge.