Question by brian.rosnett: laying off someone or simply just fired him?
I am a small business owner, and currently facing whether to laying off someone or just fired him for constantly falling asleep at work. He is an elder person and very nice but falling asleep at work sets a bad example for other employees. Question is if I lay him off, then he can apply for unemployment compensation and am I also obligated to pay for the portion of his unemployment compensation. Or should I just fired him, although harsh but he cannot file for unemployment compensation or I do not lose a penny?
Please advise and thank you so much!
Best answer:
Answer by Barry C
You already paid the part of his insurance obligation – that won’t continue once he is terminated either way.
He will be entitled to a hearing at the unemployment board and they will see through your shallow reasoning anyway.
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I think you have the concepts a little wrong. The label you place on it does NOT matter (in most states) for the purpose of unemployment.
You should get the advice of an attorney licensed in your state, as only they can provide legal advice. The followingn should only be considered a guideline of general principals.
1. You are already paying unemployment, and your rates will probably not be affected (or the affect will be so minimal you will not notice). This is not like a self-funded program, all employers in your class get charged essentially the same amount.
2. Layed-off/Fired. Those terms have no meaning for unemployment compensation. The question is whether they have been terminated. Here, regardless of the reason, the person will no longer have a job.
3. So, if you terminate him, he can file for unemployment. You will get a notice, and have a right to suggest that the person was terminated for cause. The word “cause” is a term of art, with different meanings in different states. Simply being unable to perform a job, or being unqualified, or being lazy, is not cause. Fraud, dishonesty, etc. are almost always cause. In your case, you have a worker who is sleeping at work. This might (MIGHT) be cause in your state. You can suggest on the form that he was fired for cause, and that he was sleeping on the job, and after warnings, continued to sleep on the job. This is tantamount to excessive absences (which in some states is also cause). What is the difference, you argue, between a person who arrives but never works (he is busy sleeping) and the worker who does not bother to show up in the first place.
BUT WAIT. You have another issue to consider. The fellow, an older gentlemen, could make life even more difficult for you. He could claim that you fired him due to his age (age is a protected class) and complain to the Equal Opportunities Commission (or your state equivalent). While you would probably win, it is another headache. Perhaps he would not do so (or would be less likely) if he received unemployment compensation??.
An EOC complaint is like an audit. Even if you win (when you win), it takes time and effort to respond to the complaint, attend hearings, etc. Like an audit (even where you do not have to pay more taxes), the effort to respond is worth something.
I would suggest that, in a worst case scenario and you pay the unemployment, you may be nipping a bigger problem in the bud. There is no guarantee that, even if he gets unemployment, he will not file a complaint. But if you handle the situation with dignity and compassion, he is less likely to try to go after you … a truly nice guy.
Good luck.
if u lay him off due to lack of work yes he can file but if u fire him he cant…i would drag him into the office and sternly warn him about the situation..i would hate to have to be in your position as the elders in our country have been thru so much but the other option is u could maybe make him resign..then he would not be able to collect however he wouldnt have had the “fireing” on his work record would would probly be the way id try to go
He can file and get unemployment for being fired as well. For a business owner, you are not very smart.
If you want to avoid him filing unemployment, they way to do it is offer a termination package in exchange for his resignation. You will still be paying extra money, but…..
You can only lay someone off if you don’t anticipate replacing that position. If you plan to hire someone to replace him you have to fire him, or leave yourself open to a discrimination lawsuit.
PLEASE READ THIS…..if you fire him or lay him off, he can apply for unemployment compensation. They only way he can not get unemployment compensation is if he voluntarily quits, puts in his two weeks notice and leaves, etc.
Most states are “at-will” employment, which means you can fire an employee who does not have a contract for any reason and whenever you choose. HOWEVER…keep in mind, if they are a protected class it is harder to get around this. Meaning if they are disabled, it is harder to fire them.
Check and make sure that this man does not have a disability that is causing him to fall asleep. If he does, you can not fire him, but are required to assist him with his job. It is unfortunate, but the way the law works.
Good luck!