Unemployment Hearing Case: Improperly Splitting Commissions

Case Analysis: Two claimants are discharged for improperly splitting commissions and falsification of employer records.

Background

A retail store employer discovers that a male employee was improperly splitting commissions with a female employee. However, the female employee was not on the clock at the time of transactions.  The employer determined that its records had been falsified and discharged both employees. Both employees then filed for unemployment benefits. The state found that the male employee was in violation of the employer’s policies and was disqualified for benefits. The female was qualified for benefits by the state since she was not at fault. This was due to the fact that she was not at work at the time of the incident.  Both the employer and the male claimant appealed their respective unfavorable decisions. Those cases went in front of two different hearing officers.

At the Hearing

Employer’s Evidence in Both Cases:

The employer testified that the male and female claimants were dating, and that the male claimant was the only one who was working on the date of the incident. The employer presented evidence that the two claimants had conspired together. The claimants had changed the employer’s sales tickets to reflect that the female claimant had made sales on days that she had not been at work and for customers she had not assisted.

The employer argued that the two claimants had falsified the sales records to meet the employer’s required sales goals. They stated a routine investigation and daily reports showed proof of sales made by the female claimant on days she had not reported to work. The employer’s policy requires that an employee be on the clock at the time of the transaction in order to receive credit for the sale. It is important to note, a different employer witness attended each hearing.

Evidence Presented at the Male Claimant’s Hearing:

The claimant testified he was not aware of the policy that prohibited the splitting of, or sharing of, commissions with employees who were off the clock. He asserted that it was commonplace for employees to split sales if another employee had been involved in the sale in some manner, even if that involvement occurred on a separate date from the transaction.  He indicated that the customer mentioned that she had been assisted previously by the female claimant. Because of this, he believed it was proper to split the sale with the female claimant.  The employer’s witness failed to enter into evidence the employer’s policy and the claimant’s signed acknowledgement of receipt of the policy. Furthermore, the employer’s witness did not contradict the claimant’s testimony in regard to the splitting of commissions.

Evidence Presented at the Female Claimant’s Hearing:

The claimant testified that she was aware of the employer’s sales policy regarding commissions. That policy required approval from a member of management on shared ticket sales involving two or more employees.  She also admitted that she knew her boyfriend had split the ticket sales, and management had not approved the transaction.  In order to meet her sales goals, she stated she had placed her name on ticket sales that her boyfriend had made. Next, the employer’s witness entered into the record the complete policy.  This included the claimant’s signed acknowledgment of receipt of the policy. Furthermore, the employer witness stressed that in order to split any sales a member of management had to sign off.

The Hearing Decisions

The Hearing Officer Found in Regard to the Male Claimant:

• The claimant denied under oath that he was aware of the policy, and the employer did not present the policy or claimant’s signed acknowledgment to overcome his denial.
• The claimant was unaware of any policy that prohibited him from sharing a sale with employees who are off the clock.
• The claimant’s actions did not rise to the level of misconduct connected with work and was awarded benefits.

The Hearing Officer Found in Regard to the Female Claimant:

• The claimant did not receive manager approval on the transactions in question even though the claimant knew she was required to obtain the approval.
• Her actions were a clear violation of the employer’s policies
  • Even though there was nothing in the record that indicated the claimant intended to obtain any money other that what she was justly due. Unfortunately, she did not follow proper procedures.
• Although the claimant denied some of the allegations, the employer’s testimony and evidence regarding the claimant’s receipt of the policy was more credible and the claimant was disqualified for misconduct.

Takeaways

1. These cases illustrate how rulings can differ from hearing officer to hearing officer or state to state. This is true, even in cases involving a similar set of facts.
2. Employers who provide the same witnesses for cases involving the same set of facts generally find more consistency with their results.
3. These cases further illustrate that it is vital that employers provide all necessary documentation to prove their case. Something as simple as the employer’s policy and claimant’s acknowledgement of the policy, if missing, can render different results.

Would You Like to Learn More?

• Read more blog posts about unemployment hearing cases
• Watch our video on hearing tips
• Download our free ebook, Unemployment Hearing Case Guide Book, where we examine evidence from 12 unemployment hearing cases. We provide you with professional insight on the Administrative Law Judge and The Board of Review decisions.

Please remember: Unemployment laws vary from state to state. The results in these cases might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific situation.