Can I legally fire her and not be forced to pay unemployment?

Question

I have a daycare and I have an employee that I have had to talk to before about talking on her cell phone for personal calls excessively. I have also caught her dozing off a few times. Yesterday I assume that she dozed off in her class as a child was hurt and she didn't realize it. When I came running to her class, she gave me some story about how the child got hurt, (he fell and landed on his butt). Once I got to the child I see that there is blood on his hand. I cleaned it only to discover that he needed to have stiches. I can't prove she was dozing, but I do have proof (from parents and photos I have personally taken) proving that she has been falling asleep. She was shadowed for the rest of the day and I fired her this morning based on what has happened. I want to know if I'm wrong and if I am going to be forced to allow her to collect unemployment raising my percentage when she was at fault? Is the evidence that I have enough? Please help.

Answer 1

What state do you live in? You need to look up employment laws in that state. Also document everything you ever saw, and also have other employees document EVERYTHING they ever saw. Documentation is key. You should be fine since you have justifiable reasons for firing her.  

Answer 2

If she  applies for unemployment, and she most likely will, the u.c. people will contact you.  Tell them she was fired for cause, and tell them why.  Then it's up to the u.c. people to decide whether what you have for evidence is sufficient.

Good luck.  In any case, it's good to have her out of there!

Answer 3

Unemployment can not be collected for being fired for misconduct.  

From EDD website: "For a claimant's act to be misconduct, the following four elements must be present, according to Title 22, Section 1256-30(b).

The claimant owes a material duty to the employer under the contract of employment.

There is a substantial breach of that duty.

The breach is a wilful or wanton disregard of that duty.

The breach disregards the employer's interests and injures or tends to injure the employer's interests.

Material Duty

Title 22, Section 1256-32, states in part:

An employee owes an implicit duty to support and serve the employer's interests . . .

The "material duty" exists in many ways. Some common examples include showing up for work, performing work to the best of one's ability, obeying a reasonable employer order and refraining from fighting or sleeping on the job. If the claimant's act does not violate a material duty to the employer, the discharge would not be for misconduct.

Substantial Breach of Material Duty

Whether there is a substantial breach, according to the explanation in Section 1256-30(b)(2) of Title 22,

[R]equires an analysis to determine the severity of the employee's actions. Where the ordinary negligence of the claimant has resulted in the minimal injury to the employer's interests, the breach is not substantial unless the claimant has been previously warned or reprimanded about this type of negligence and has the ability and capacity to perform satisfactorily. Thus a janitor who negligently fails to empty a wastebasket or dust a desk and is discharged is not disqualified for misconduct unless there had been previous warnings or reprimands for this type of conduct and the janitor has the ability and capacity to perform satisfactorily.

On the other hand, where the employer's interests have been more severely damaged by the grossly or substantially negligent or deliberate acts of the claimant, misconduct may be found even without previous warnings or reprimands for prior similar acts . . .

Example - Substantial Breach of Duty:

While transporting a pregnant woman and her two minor children, the claimant, a taxicab driver, fell asleep and became involved in an accident with another car. The claimant admitted that, prior to the accident, he had not obtained his customary sleep and felt tired, but he asserted that he had not felt tired enough to fall asleep and had had no idea he might doze off. The claimant produced no medical explanation of a physical ailment which would cause any sudden sleepiness.

The claimant’s discharge was for misconduct. Since a motor vehicle is recognized as a dangerous instrumentality, the claimant had a high degree of responsibility and duty to the employer, to the drivers of other automobiles, and to the taxicab passengers who had to rely upon him for safe passage. It is well known that falling asleep is a common cause of automobile accidents; and this claimant, as the driver of a taxicab, had an added responsibility in taking proper precautions for his safe handling of the vehicle. His failure to take such precautions manifests a high degree of carelessness if not a deliberate disregard of the standards of behavior which the employer had the right to expect of any employee."

You did the right thing.  Those kids are your responsibility.  They are entrusted to you and if this woman didn't take her responsibility seriously, than this is not the line of work for her.  

Answer 4

I have to respond with a couple questions of my own. First, is this a licensed daycare establishment? If so, I assume you would have a business permit and be required to follow the guidelines of your state for operating a business. Second, this would depend on the state your daycare is operated in. All states are what is called "At Will" employment states, but each state has its own guidelines. If you contact your county Workforce Development agency they should be able to assist you. Good luck!

Answer 5

That depends on your state laws.  Also, do you have a written employment policy handbook?  If yes, is sleeping on the job expressly prohibited?  Did you write her up?  Give a written warning?  A final Warning.  If yes, then you may be able to successfully fight it.  If you have none of those, then you'll probably be on the hook.

Fight it.  You may win you may lose, but without more information the above is the best I can give you.

Answer 6

The reason so many employers take the

'make them so uncomfortable they quit" attitude

it is just for this kind of thing, you fired her...that's going to make it very difficult to deny her unemployment.

It's a perfectly valid firing I wouldn't worry over that part of it,

but my guess is you'll end up paying her unemployment