Summary

• Texas employers are financially impacted when former employees receive unemployment benefits.
• Winning an appeal requires proving misconduct connected to the work.
• Misconduct must involve intentional or negligent behavior that violates a known policy or harms the employer’s interests.
• Employers must provide firsthand testimony, written warnings, and solid documentation.
• TWC follows specific legal standards and definitions — understanding them is crucial.

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What Does “Misconduct Connected to the Work” Mean?

Under Texas Labor Code § 201.012, “misconduct” is defined as:

“Mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of others, intentional wrongdoing or malfeasance, or violation of a law or established policy of the employer.”

This is the threshold standard the Texas Workforce Commission (TWC) uses to decide whether a former employee is eligible for unemployment benefits after being terminated.

In plain English, the TWC will not disqualify an employee from benefits just because they were fired — you must show they were let go for deliberate or reckless misconduct, not poor performance, confusion, or general inability.

What Is NOT Considered Misconduct?

The following do not qualify as misconduct under TWC rules:

• Inability to meet performance goals despite effort
• Personality conflicts
• Lack of experience or poor judgment
• A one-time mistake without malicious intent
• Absence due to documented illness or family emergency
• Resignation due to unsafe or illegal conditions

Unless tied to a pattern of policy violations, these situations won’t justify disqualification from unemployment benefits.

What IS Considered Misconduct?

TWC considers the following common actions as likely to meet the threshold for disqualification:

Excessive Tardiness or Absenteeism

• Must be without valid excuse
• Requires prior warnings and documentation
• Employers must show the attendance policy and proof the employee was aware

Theft, Dishonesty, or Falsification

• Includes clocking in for another employee, theft of company property, or false timesheets
• Must be supported by direct evidence, not hearsay

Insubordination

• Refusal to carry out lawful, reasonable work duties
• Requires proof of clear instruction and refusal

Harassment, Threats, or Violence

• Must show how the behavior violated policy
• Witness statements, video, and incident reports strengthen your case

Safety Violations

• Especially when employees are trained and warned
• Noncompliance with PPE, vehicle rules, or OSHA policies can qualify

Company Property Damage

• Must show it resulted from carelessness or intentional conduct, not just accident.

Each case is fact-specific — the TWC weighs the intent and history behind the incident.

The Burden of Proof is on the Employer

When you terminate someone, the burden of proof falls squarely on you to demonstrate misconduct. That means documentation and firsthand testimony are critical.

TWC hearing officers are instructed to favor the employee if the employer’s case is weak, vague, or based solely on hearsay.

According to the TWC Unemployment Insurance Appeal Hearing Guide employers must present:

• A clear copy of the violated policy
• Proof the employee acknowledged the policy (signature, email, training)
• Details of the final incident
• Prior warnings or performance documentation
• Testimony from the person who witnessed the misconduct

Best Practices to Help Employers Win Misconduct Claims

1. Use a Written Disciplinary Policy

Clearly define progressive discipline: verbal warning → written warning → suspension → termination. Ensure every employee signs acknowledgment of this policy during onboarding.

2. Keep a Written Record of Warnings

Verbal warnings should still be logged. Use specific dates, details, and the behavior addressed. If an employee refuses to sign a written warning, note it and have another manager witness it.

3. Document Policy Acknowledgment

When employees are onboarded or trained, have them sign off on:

• Handbook policies
• Job descriptions
• Safety rules
• Attendance policies

A signed acknowledgement gives you a critical advantage in hearings.

4. Terminate for the Final, Documented Event

If the termination occurred after a specific violation, make sure that final incident is clearly documented and ties back to the misconduct policy.

5. Prepare Your Witness

The person who witnessed or handled the misconduct should testify during the appeal hearing. Hearsay (e.g., “My HR manager told me…”) will not be enough.

6. Participate in the Hearing

Employers who fail to show up often lose by default. Take the hearing seriously, review your materials ahead of time, and be prepared to present evidence calmly and clearly.

Sample Scenarios (Who Wins?)

Case A – Attendance Issues – Employer Wins

• Employee: Repeatedly late despite written warnings and final notice.
• Employer Evidence: Time records, policy, signed warnings, and final write-up.
• Result: Misconduct proven — benefits denied.

Case B – Single Incident with Customer – Employer Loses

• Employee: Fired after single customer complaint about rude tone.
• Employer Evidence: Hearsay only, no previous warnings or policy cited.
• Result: Misconduct not proven — employee granted benefits.

Case C – Bad Performance – Employer Loses

• Employee: Fired after multiple warnings for failure to meet goals, despite employee trying their best.
• Employer Evidence: Multiple warnings of failure to meet goals.
• Result: Misconduct not proven — employee granted benefits.

Case D – Bad Performance, Failure To Follow Instructions – Employer Wins

• Employee: Fired after multiple warnings for failure to follow instructions which leads to missing goals.
• Employer Evidence: Documentation of procedures/instructions provided to and signed off by employee. Evidence that instructions/procedures were not followed. Multiple warnings of failure to follow instructions.
• Result: Misconduct proven — benefits denied.

Can You Appeal a TWC Decision?

Yes — if the TWC grants benefits and you believe they were wrong, you can file an appeal within 14 days of the decision date.

You can file online through TWC’s Unemployment Appeals Submission by fax, or by mail.

If you lose again at the hearing, you may still file a motion for rehearing or appeal to the Commission and eventually District Court, but success rates drop significantly without new evidence.

Final Thought: Policy + Documentation = Defense

Winning a TWC claim is not about luck — it’s about preparation. Texas law does allow you to deny unemployment to former employees terminated for misconduct, but you must:

• Define what misconduct looks like
• Prove the employee knew the rules
• Show they broke those rules
• Back it up with evidence and testimony

If you miss even one of those steps, your case may not meet the burden of proof.

Need Help Building a Solid TWC Defense? Call the Texas HR Experts at The Unit Consulting Today

At The Unit Consulting, we help Texas employers:

• Draft and update disciplinary policies
• Create defensible documentation
• Respond to TWC claims and represent you during appeal hearings
• Train your team to avoid wrongful terminations and protect your rights

Don’t let a single bad termination turn into months of unemployment costs. Contact the Texas HR outsourcing team at The Unit Consulting strengthen your systems before the next TWC letter shows up.