Unemployment Claims: Strategies to Combat the “Inability” Argument

By: Jikku John

Legal Counsel to Commissioner Joe Esparza 

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 the basic tools that employers can utilize in unemployment cases involving inability.

What constitutes inability in the unemployment context?

Generally, the employer must show misconduct connected with the work in the case of a discharge to prevail on an unemployment claim. 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 a law, and 3) was within the claimant’s power to control or avoid. See. https://efte.twc.texas.gov/ui_law_qualification_issues.html#dq-mc. 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). Unemployment Benefits - Appeals Policy & Precedent Manual- Texas Workforce Commission.

How to 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 show that the employee's performance later fell below this demonstrated capability by providing specific examples like neglecting quality checks, disregarding instructions, or exhibiting excessive absenteeism. The employer needs to establish that job standards remained consistent and within the employee's demonstrated abilities and that any changes to job duties or supervisors were not significant 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 inability after the employer repeatedly found food particles and mildew on pots and pans after the claimant washed them and returned them 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). Unemployment Benefits - Appeals Policy & Precedent Manual- Texas Workforce Commission. 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 complex role. For instance, simply citing "poor performance" for a salesperson who fails to generate clients is insufficient. However, if the employer can demonstrate that a specific requirement, such as making a certain number of daily calls, was consistently neglected despite warnings, the employer has a much better chance of overcoming the argument of inability.

Strategies if the claimant was not a good fit?

Finally, 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, as compared to 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 possibly limits a large chargeback resulting from an unemployment claim.

Conclusion

Although inability cases can be difficult to overcome, through asserting an appropriate defense, or effectively managing the job separation, the employer can limit or eliminate the negative consequences arising from a claim of inability.

For questions about this issue, or any other employment-related matters, employers can call our employer hotline at 1-800-832-9394 or email us at: [email protected].