"It tastes OK to me" -- Customer complaint discharges are among the most difficult unemployment cases to win.

by Larry Clark

That soft drink Mrs. Hardy had ordered just seemed to lack the usual zest.  She motioned to the waitress, Miss Vickie Harmon, to approach her table.  "This drink tastes flat", Mrs. Hardy said.  The waitress picked up her drink and, without hesitation, took a sip through the customer's straw! "It tastes OK to me!" she said, returning the half-empty glass to the table in front of Mrs. Hardy.

Not surprisingly, Mrs. Hardy was not thrilled with the nonchalant way her complaint had been handled.  She was even less delighted that the waitress had tasted her drink through her straw.  She asked to see the manager immediately.  After prolonged complaining, the customer convinced management to fire the waitress.  The employer had never been overly impressed with Vickie Harmon's interpersonal skills anyway.  She just didn't have the knack for dealing with customers and drinking from Mrs. Hardy's beverage was the last straw.

Customer complaint discharges are among the most difficult unemployment cases to win, because they often lack the most important component -- testimony from a first-hand witness.  Inasmuch as involving a customer in an unemployment hearing is generally considered bad public relations, employers typically must try to prove misconduct without customer testimony.  In the actual unemployment case above Miss Harmon innocently admitted to the hearing officer that she had taken a sip through the customer's straw.  Despite her admission, she was eligible for jobless benefits because her actions, according to the hearing officer, amounted to an isolated incident, a good faith error in judgement.  The supervisor had not documented prior customer complaint situations and failed to make a convincing argument that this single incident amounted to misconduct.

Employers are usually confronted with a former employee that denies any wrongdoing.  This sworn denial puts the employer in the impossible position of trying to combat sworn testimony with hearsay evidence.  We recommend that you not terminate employees based solely upon oral customer complaints.  This does not mean that you are expected to retain an employee that doesn't know how to treat your customers.  Realize, however, that an oral complaint is given little weight in an unemployment hearing, and that even a single written complaint may not be enough.

We know that obtaining a customer complaint in written form is no easy task.  However, it is essential that you have the customer write their complaint in their own handwriting with a statement such as: "I declare under penalty of perjury that the above is true and correct" (preceding the customer's signature).  Then be sure to make a record of the customer's name, address and telephone number for future reference.

Following these recommendations will not automatically result in a disqualification for unemployment benefits.  However, if you follow your own disciplinary policies regarding the necessary warnings and/or suspensions that precede a discharge, and if you are able to present the customer's written complaints as proof, you will have a good chance.

Beyond the consideration of whether the written documentation results in winning an unemployment case is the question of whether you can defend your own actions in any other venue which may become necessary.  It would be a big mistake for you to assume that the unemployment hearing is the only context in which your discharge/disciplinary actions may be examined.  You should document all rule violations with the worst case expectation that you will have to prove your case up to six years later in front of a jury in a wrongful discharge lawsuit.  With the stakes as much as 100 times higher, you will undoubtedly be glad that you can locate that complaining customer.

Larry Clark is a principle member of Employer Advocates LLC, and has been in the unemployment cost control industry for 35 years.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.