During my visit with the Associated Security Services and Investigators of the State of Texas (ASSIST) this month, I had a really interesting conversation with the owner of a security guard company. During that conversation he asked me could he terminate an officer for not doing their patrols if there was no activity in our tour tracking system. My answer was an unequivocal “Yes” but he wanted proof…which I didn’t have.
As a follow up to that conversation, I contacted Mr. Kerry O’Brien of the O’Brien Law Firm in Texas to get his legal opinion on how such a termination would play out. Kerry was a former Texas Workforce Commission unemployment hearing officer, as well as a Texas board-certified employment attorney, so he is what I would call a subject matter expert in this area.
The question that I posed to Kerry was:
“When our customers implement our software it helps them monitor the productivity/activity of their security officers. For example, at any given facility the security officer might have to check 4 locations every hour (e.g. front door, back door, side door, loading dock). When the officer goes to check those locations, he uses our app to scan QR codes (which our software allows them to create) at each of those locations, which transmits the name of the location (e.g. front door), date, time, and GPS position of that officer when they scan the QR code.
So as you can imagine, over the course of an 8-hour shift the security officer should generate a list of 32 QR code scans. In this scenario, if the officer doesn’t do any scans the security guard company can see that inactivity, and based on the seriousness they might choose to terminate that security officer.”
Here is Kerry’s legal opinion on how an unemployment hearing would play out if you terminated your officer for not doing his tour scans.
Based on that scenario, you have asked me to answer the following question:
Would the TWC accept this lack of activity as evidence of work-connected misconduct, to disqualify the terminated employee from receiving unemployment benefits?
The short answer is yes, as the fact that the security officer was failing to perform his or her required job duties would be evidence of work-connected misconduct under TWC regulations and guidance cases. However, the issue here is more about properly presenting the evidence to the satisfaction of the TWC.
First, the client should be clear with the officer that checking each of these locations at certain intervals during each shift is a specific job requirement and that they could be subject to
termination for failing to do so. It is deemed the employer’s responsibility to inform the employee of his or her job duties, if it’s not otherwise obvious. Checking site locations,
generally, is obvious for a security officer, but checking 4 certain locations every 15 minutes, for example, would be a specific requirement of this specific employer. If that requirement is in writing, and there is evidence that the officer has notice of the requirement (either through a job description with the officer’s signature, or an email to the officer, as examples of written
confirmation of notice), that would go a long way towards supporting a misconduct finding, and would likely allow the employer to skip any progressive disciplinary policy steps (e.g. first
warning) that it might otherwise typically employ for work infractions.Second, upon request your company (or the app itself) should be able to generate some sort of report for the client that demonstrates the officer’s failure to visit these required location points during their shift. The client should understand how to read the report and be able to explain the data in the report to the TWC, as well as just generally how the system works, on a basic level. Your description above would be enough of a description for the client to convey to the TWC. If the former employee is denying that he or she failed to visit the location points, the TWC will want to see some documentation from the system, even if it’s merely screenshots of the data on the app.
With these two factors in place, the terminated employee will have difficulty overcoming a finding of misconduct by the TWC. That would help protect your clients’ Texas unemployment
tax rates and would help your clients keep their employed security officers accountable. During an appeal hearing, the TWC hearing officer must give credence to first-hand testimony
over a written statement or affidavit. That is why it is important for the client/employer to be able to explain how the report demonstrates the officer’s failure to visit the required locations. Having the client testify firsthand from their knowledge on this is better than having you submit a written statement on the employer’s behalf, even if you have expert knowledge on your system. And as long as the client understands the report and can explain it to the TWC hearing officer, along with a general explanation of how the system works, there should be no need for you to participate in the hearing. The report and the client’s first-hand testimony would be the first-hand testimony that the TWC hearing officer needs to find misconduct if the employee is denying that he or she failed to visit these location points.My opinion could change based on new or different facts. My analysis only applies to an unemployment claim before the Texas Workforce Commission as of the date of this letter.
If you would like to contact Kerry please keep in mind that he typically represents employees and not employers. As such, he rarely takes on employers as clients to minimize a conflict of interest. If you would like a copy of the actual letter, please leave a comment below and we can send it to you.
I would imagine that the answer would be the same in most jurisdictions. But for advice on your specific case or situation, please contact your legal counsel.
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By Courtney Sparkman
OfficerReports.com is a software company that provides security guard companies with an easy way to monitor their officers, better manage their operations, and win new business. Take a tour of our software to see how we combine Electronic Reporting, Real-Time GPS based Tour Tracking, and GPS based Clock In and Out into one easy to use platform.
