By Jodi Schafer, SPHR, SHRM-SCP
QUESTION: I have an employee who I recently hired, but after 2 months on the job, she is still making errors. I just don't think she is going to work out, so it looks like I will be terminating her. She's trying hard but does not seem to be able to catch on to the way we do things. Since she's only been with me for such a short time, I don't have to worry about an unemployment claim against me, right? I thought I had a 90-day window to decide if I want to keep her before I had to worry about unemployment compensation, but I wanted to double-check before I make any decisions.
ANSWER: If you terminate her, she has every right to file a claim for unemployment. Whether she receives it or not, has to do with how much money she earned in the previous year and the reason she is out of work rather than how long she was employed with your practice.
The Unemployment Insurance Agency (UIA) uses a two-tiered test based on eligibility and qualification to determine if a person will receive compensation. First, the UIA must determine if the individual is ‘eligible’ for benefits. To be eligible in Michigan, a person must meet an earnings threshold within an established period of time. The UIA establishes a ‘base period’ by looking backwards at the last 4-5 quarters of the current/previous calendar year(s)[1]. Within this base period, the claimant must have:
- wages in at least 2 quarters, and
- wages in the highest quarter of earnings of at least $3,744 (as of 1/1/20), and
- wages in the entire base period that are at least 1.5 times the wages earned in the highest quarter.
OR
- wages in at least 2 quarters, and
- wages in the entire base period that equal at least 20 times the state weekly average wage or $20,742.
For the purposes of wage calculations, the UIA considers wages from ALL employers the claimant worked for during the established base period. If the claimant is determined to be eligible for benefits, the UIA will next decide whether or not they are ‘qualified’ to make a claim. To be qualified, the unemployed person must:
- have lost their job through no fault of their own, and
- be able and available for work, and
- be actively looking for work.
There are a number of other rules and formulas that are involved with the determination of the claim, but the UIA will send letters to you (the previous employer) along the way to inform you if a claim was filed and the information required of you in response.
If you do decide to terminate her and she does apply for unemployment (assuming she was deemed eligible to do so by the UIA), you can still choose to contest the claim based on the reason she is no longer working for your practice. You will need to prove that her inability to perform the work demonstrated a willful disregard for your best interest. This will be difficult to do since it sounds like her lack of skill was not the result of an overstatement of her abilities in her resume or an interview, nor was it the result of a conscious choice to neglect her duties. As you state, “she's trying hard but does not seem to be able to catch on to the way we do things,”. Therefore, the UIA may determine that she is out of work through no fault of her own. Remember it is called unemployment insurance rather than employer insurance and it was designed to give the unemployed individual the advantage.
Let’s take a step back for a minute though. Are you really sure you want to get rid of this employee? You may want to start the training all over again, documenting the process and giving her copies of this documentation. Remember, people learn differently. It may just take her longer to learn. Try to offer her the information in different ways. She may need another person training her. Two months is not that long of a period of time, especially if she did not come with any experience. Make sure that you give her every opportunity to succeed. The labor market is very tight right now and you may find it challenging to find someone else for the job.