In these tough economic times, as the unemployment rate in Wisconsin hovers around 7.8%, more and more families are relying on unemployment benefits to put dinner on the table and pay the bills. Remember that Wisconsin is an “at will” employment state. This means that your employer has a lot of discretion and can terminate your employment for any reason as long as it is not based on your association with a protected class (disability, race, gender, pregnancy, national origin, ethnicity, arrest record, etc.). However, the fact that your employer terminated you does not necessarily mean you are not entitled to and eligible for unemployment benefits. If you or someone you know recently became unemployed, consider the following standards to determine if you are eligible for unemployment benefits:

(1) You must be ABLE and AVAILABLE for work in the general labor market.

You are ABLE to work in the general labor market if you are physically able to perform any part of a job within your skill level. Keep in mind that the general labor market is broader than your specific job. For example, if you work as an electrician but injure your back such that you can’t perform your duties at your current job, you may still be eligible for unemployment because you may still be physically ABLE to perform other work within your skill set at a different employer.

You are AVAILABLE to perform work in the general labor market if you haven’t withdrawn from the market of jobs that you are still physically capable of performing. This requirement is evaluated by looking at the salary you are willing to accept, the hours/shifts you are willing to work, and your travel and transportation restrictions.

Keep in mind that you must also perform two instances of work search per week to be eligible for unemployment benefits. You should keep track of these searches.

(2) You were terminated but not for misconduct connected with your employment.

As a general rule, if your employer terminates your employment, you are still eligible for unemployment benefits. This is true UNLESS you were terminated for misconduct connected with your employment. The term “misconduct” has a very specific definition for purposes of unemployment benefits – it means willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability […]. Boynton Cab Co. v. Neubeck & Industrial Comm’n, 237 Wis. 249, 296 N.W. 636 (1941). In other words, you have to do something pretty serious for it to rise to the level of misconduct that would disqualify you for unemployment benefits. Inefficiency, unsatisfactory conduct, failure in good performance because of inability or incapacity, ordinary negligence, isolated errors, or good faith errors in judgment do not amount to the type of misconduct which makes you ineligible for unemployment benefits.

If you were terminated for excessive absenteeism, the misconduct standard does not apply but your benefits may be suspended and you may have to wait six weeks to re-qualify for benefits.

Misconduct FAQ’s:

My employer found out I was arrested over the weekend and fired me. Am I still eligible for unemployment benefits?

Perhaps. If you were arrested for something that was not connected with your employment, you could still be eligible for benefits. However, if your arrest leads to incarceration that results in a lengthy absence from work, your employer may consider your absence unexcused and terminate you on those grounds, which could be considered misconduct.

My employer conducted a random drug test and I tested positive for illegal drugs. If I get fired, am I still eligible for unemployment benefits?

Maybe. A positive drug test alone is not always sufficient evidence to prove misconduct. If you engaged in off duty drug use, as a general rule, that is not “connected with your employment.” However, employers have successfully argued that employees are not eligible for unemployment benefits after being terminated for off duty drug use because it violates “drug free work environment” policies. A careful review of your employer’s drug testing policy is required in these cases.

My employer terminated me for failing to complete my job duties in a timely manner, even though this was the first time I have ever failed to finish on time. Am I still eligible for unemployment benefits?

Your employer can certainly fire you for a single, isolated mistake attributable to negligence or inadvertency. However, that single mistake is not considered misconduct for purposes of unemployment and will not prevent you from collecting your benefits. Be careful, though because a single egregious or intentional action, such as theft from your employer, would rise to the level of misconduct and prevent you from being eligible for unemployment benefits.

(3) You did not RESIGN or QUIT your employment.

If you voluntarily quit or resign, with a few exceptions, you will be ineligible for unemployment for four weeks and until you earn a certain amount of “re-qualifying” wages. In some cases, however, an employer’s actions will rise to a level that makes it impossible for the employee to continue working. For instance, if your employer stops paying you and you are forced to resign to find a new job, you may still be eligible for unemployment benefits under a theory of “constructive discharge.” Questions about quit, discharge, layoff, or suspension are fact specific and you should contact an attorney if you have particular questions about this issue.

If you have been denied unemployment benefits and would like to speak to an attorney, please call Hawks Quindel, S.C.

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Summer Murshid