Hello, everyone. It had been awhile since I last posted here, but the Ken Scalir appearance on Judge Judy brought me out of lurk mode.
One important note: There is no evidence that I am a real attorney, and you should not take any of the below as professional legal advice.
Another important note: I am also NOT advocating any kind of fraud or deception in order to get these benefits. However, as your approval or denial will often hinge upon some very arbitrary factors which will depend upon the way you describe what happened, it's important to know what they're looking for. Many unemployment benefits are unfairly DENIED due to the incorrect perception that the employee got fired on purpose. This guide is for those looking to prevent that incorrect perception, NOT to encourage scamming or dishonest acquiring of undeserved benefits.
Use this advice at your own risk! It is not guaranteed to work, and I take no responsibility if you get denied.
One frequent question I receive is, "I just got fired from my job because they claim I violated company policy. Can I still get unemployment benefits?"
Another question I receive is, "My job is terrible and my boss hates me. Is there any way to just end things there and still get unemployment benefits?"
This varies from state to state, but in most cases the process is fairly uniform.
First off, you need to understand what unemployment benefits actually are. It's actually "unemployment insurance", and your employer pays for it for each employee.
Your employer does NOT decide whether you receive this benefit. Investigators with the state determine whether or not you're eligible. However, your employer DOES have feedback into the process, and gaining their cooperation is helpful (though not essential).
Next, you need to understand what makes you eligible or ineligible.
Simply put, you are usually eligible for unemployment benefits if you did not consciously choose to lose your job. That is, if you did not intentionally lose your job, then you are usually granted the benefits.
However, this is a complicated and vague situation. As state unemployment insurance investigators cannot read your mind, how do they know if you intentionally lost your job or not?
This is determined by a common-sense decision after interviews with both you and your employer.
It does not matter much if you were a lousy or incompetent employee. That is not what is being determined here. In fact, in many cases it's better to paint yourself as someone who just couldn't handle the work, and your employer fired you.
I will list some hypothetical situations where you would or would not receive unemployment benefits:
1) Quit your job. NO BENEFITS, as quitting is voluntary.
2) Repeated unexcused absence from work. USUALLY NO BENEFITS, unless you have a valid medical or emergency reason for it. This is because it's impossible for the investigator to determine whether you intentionally didn't show up in order to get fired, so by default it is assumed you intentionally stopped showing up, and therefore it's deemed equivalent to quitting. If your absences are numerous over a long period of time, you may be able to talk your way into benefits (see later in this guide).
3) Poor job performance or incompetence. BENEFITS ARE TYPICALLY AWARDED, unless you inexplicably went from competent to incompetent, which again might signal the assumption you did this intentionally to get fired.
4) Poor behavior with customers, co-workers, or superiors. VARIES, based upon the situation. The investigator will determine whether or not they believe you intentionally caused trouble to get fired, or if you were just an unpleasant person in general. If it was determined that you were just a general jerk, you will usually be awarded benefits.
5) Habitual lateness. VARIES, depending upon how long the lateness has been going on. While this is counterintuitive, a usually-punctual employee who suddenly always shows up late will usually be denied benefits, whereas someone with a months or years-long history of being late will be given benefits This is because the former seemingly indicates intentional behavior (no benefits), while the latter simply indicates a bad employee (benefits granted).
6) Laid off / position eliminated. BENEFITS ALWAYS GRANTED.
If you are considering leaving your job due to issues there, but would like unemployment benefits, DO NOT QUIT. Instead, approach your employer, and ask if they could classify your departure as a "mutual resignation".
A mutual resignation is essentially an agreement between the employer and employee that things aren't working out, and that both agree things should end. This is legally different than the employee simply quitting (no unemployment benefits), and it's also different from a firing (employee can sue for wrongful termination). A mutual resignation allows for unemployment benefits, but denies you the right to sue for wrongful termination, so both sides gain.
Some employers will agree to do this, and others will not. It is more likely they will agree if it's a smaller company, and if you are leaving on at least somewhat good terms.
If the employer agrees, have them rehearse with you what will be said to the state investigator. Nobody should lie or be asked to lie. Simply come up with a real reason that there was some problem at work (don't lie -- actually come up with an actual problem occurring there involving you), and have the employer state that they were unhappy with you and both of you decided it was best to end things, in order to prevent a termination down the road. If this is said by both parties to the state investigator, you will almost surely receive benefits.
If you quit, don't bother applying for benefits. You will get denied 100% of the time.
If you get fired, you should always apply for unemployment benefits, unless you have found another job right away.
At this point, it is unlikely your former employer will cooperate, and they may actually fight you receiving the benefits. Do not worry about this.
You just need to come up with a proper framing of what happened.
It is important to rehearse a story regarding your firing, which paints your behavior as routine, which suddenly resulted in your termination after a long time.
Do NOT paint it as a one-time screw-up, unless it's something which could certainly be determined an accident.
For example, say you worked at a call center and you were caught intentionally hanging up on Dan Druff when he was repeatedly demanding a $10 credit on his bill. Upon investigation, it was found by your employer that you hung up on 3 other customers that day, as well, and they fired you.
WRONG: "I was just really stressed out that day and hung up on anyone who got me frustrated. I don't usually do that, but that one day I flipped out and kept doing it because I couldn't cope."
RIGHT: "We get a lot of calls from abusive customers, and I just didn't have the personality to take the verbal beatings every day. Eventually I noticed that it was better to just hang up on the customer when they got too aggressive with me, as that made the job easier and less stressful. I was doing this for the last 6 months, and I guess they decided to start getting rid of the customer service people who were hanging up on customers."
Amazingly, the second story above usually WILL get benefits, while the first story will only get them sometimes. Again, you are going for demonstrating consistent bad behavior over a long period of time, rather than a one-time change in behavior.
Same goes for routine lateness or missing work.
If you suddenly go from punctual and reliable to late and absent, you will not be granted benefits.
If you've been unreliable for a year and finally your company had enough, then you WILL be granted benefits. It's important to state in such cases that you were missing work (or late to work) for a long period of time, and it seemed your employer was okay with it. State that you were surprised when they actually fired you for this after such a long time of seemingly tolerating it.
I advised a client who was habitually absent over a period of 18 months to tell the investigator just that. The investigator then interviewed the employer and asked if the employee had been missing work often for the past 18 months. The employer verified this to be true, and my client was granted benefits.
In another interesting case, I had a client who was fired for engaging in racist behavior. He used the dreaded n-word in an argument with a co-worker, and was promptly terminated for it.
Normally such outrageous behavior would be considered "intentional" and benefits would be denied.
However, I asked my client about the history with this co-worker. Apparently the co-worker was bigoted herself, and had also made anti-Semitic remarks to and about my client in the past.
I asked my client if he had reported these remarks to his superiors, and he said that he had.
This was the out he needed. I told him to state to investigators that he was repeatedly subjected to anti-Semitic attacks at work by this woman, and one day he finally lost his cool and called her the n-word. The investigator called up the workplace and asked if this was possible. The employer denied that they had any proof of these anti-Semitic remarks, but acknowledged that the two employees had a history of arguing with one another and getting into heated battles. That was enough for the investigator to believe that this was not an intentional job sabotage, but rather just an ongoing pattern of two employees who couldn't get along. Benefits were granted, and my client profusely thanked me.
In general, when fired, you need to craft a story (one which does not veer too far from the truth) which paints you as a longtime undesirable employee, rather than one who engaged in unusual behavior.
Of course, when possible, it's best to blame a poor fit with the work environment, rather than actual bad work. For example, if fired for being rude to customers, it's better to simply state that you are not really a people person, and that a customer service position probably wasn't right for you. It's also fine to state that many employees at work personally disliked you due to personality clashes, and that it led to a toxic work environment, causing your employer to finally terminate you.
I hope that this guide is useful, and will result in many lazy weeks sitting at home, posting on forums, and engaging in degenerate online gambling.
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