By W. SCOTT EVANS

The Supreme Court of Appeals of West Virginia has recently issued two Memorandum Decisions that highlight the importance of providing written warnings as part of disciplining a problem employee.

In both decisions, the Court upheld the determination that the former employees were disqualified from collecting unemployment benefits given that they were each discharged as a result of their own gross misconduct. Importantly, in these cases the employees were both found disqualified from receiving benefits because they were discharged subsequent to being issued written warnings that any future acts of misconduct would result in their terminations.

In Keithann Widner v. Charleston Area Medical Center, et al., (WVSCA Docket No. 12-0964), our state Supreme Court upheld the denial of unemployment compensation benefits to Ms. Widner, a former employee of Charleston Area Medical Center (CAMC), who was discharged following receiving prior written warnings for falling asleep at work.

Subsequent to her discharge, Ms. Widner filed a claim for unemployment compensation benefits. Upon the review of the claim, the Administrative Law Judge (ALJ) determined, and the Board of Review agreed, that the evidence demonstrated that Ms. Widner continued to sleep at work despite receiving prior written warnings and therefore was disqualified from benefits for gross misconduct.

On appeal of the decision to our state Supreme Court, Ms. Widner argued, in part, that “involuntary acts,” such as those caused by an illness, should not be the basis of a finding of gross misconduct for purposes of ineligibility for unemployment compensation benefits. Upon review of the matter, the Supreme Court was not persuaded by Ms. Widner’s arguments and upheld the denial of unemployment benefits to Ms. Widner as proper.

The second state Supreme Court decision concerning the denial of unemployment benefits also involved an employee who had received repeated disciplinary warnings prior to her discharge. In Christine A. Stefanko v. Quad Graphics, Inc. (WVSCA Docket No. 12-0773), Ms. Stefanko, who was employed as an ink jet operator, received both a verbal as well as a written warning for poor attendance.

Subsequently, she was placed on a “Last Chance Agreement” which, in part, provided that should she violate any company policy within a 120 day period she would be subject to immediate termination. Despite entering into this “Last Chance Agreement”, Ms. Stefanko failed to report to work and was subsequently discharged for violating the agreement.

Following her termination, Ms. Stefanko filed for unemployment benefits. Therein, the ALJ found, and the Board of Review agreed, that Ms. Stefanko had committed gross misconduct as she had received ample written warnings that her failure to report to work would lead to her termination and would violate the “Last Chance Agreement."

Like the decision in Widner, the Supreme Court of Appeals of West Virginia upheld the denial of unemployment benefits noting that Ms. Stefanko had a record of absences from work which led to her receiving a written warning as well as ultimately being placed on a “Last Chance Agreement”. The Court went on to observe that despite these warnings Ms. Stefanko subsequently failed to report to work in violation of the “Last Chance Agreement”, thus rendering her disqualified for unemployment benefits based upon a finding of gross misconduct.

Both decisions highlight the importance of issuing written warnings when disciplining employees. First, written warnings can be important for employers defending unemployment benefit claims.

As demonstrated by these decisions, where an employee has been issued a written warning regarding future misconduct but nevertheless commits another violation of that company policy or rule, that employee may be subsequently found to have committed gross misconduct and thereby disqualified under West Virginia law from receiving unemployment benefits.

Secondly, written warnings are also a part of sound human resource policy. Short of the most serious misconduct, it is generally good practice to give an employee a final warning, and thus one final chance, before termination.

Applying progressive disciplinary steps involving escalating forms of discipline, including a final written warning, helps employers later defend a termination. Experience teaches that in employment-related litigation it is critical to the jury’s perception of the case and, in particular, of the Company, that they believe that the employee has been treated fairly.

Therefore, it is to the employer’s advantage to be able to demonstrate that an employee received a final warning and a fair chance to improve or otherwise change his ways prior to being discharged.

If a jury finds that an employee was fairly treated and forewarned about the consequences of future misconduct but failed to heed the warning, then they are less likely to be sympathetic to claims of illegal discrimination or retaliation. In sum, the use of written warnings can be an important tool to defend against both meritless unemployment claims as well as wrongful termination suits.

W. Scott Evans is an attorney in Jackson Kelly's Charleston office. This editorial appeared on the firm's Labor & Employment Personnel File blog.

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