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Discharged for attendance and employer now appealing the benefits

by K
(California )

I worked for my former employer for over 10 years. In the last year after having my son, I had to miss a lot of work due to either him being ill and not being able to drop him at daycare or myself being ill. I always always called and gave proper notice. However, I was written up and they will have paper documentation that I was warned but I had no choice but to miss work. I was finally discharged due to attendance in November and filed for unemployment which was approved initially but I just recently received a letter about my former employer appealing. I have not received a date for the hearing yet but I did already request a copy of my personnel file. I am going to state that prior to my "final incident", I worked for 2 weeks before they fired me. If it was my last straw, they should've just fired me immediately if this progressive attendance policy is what they're enforcing. Also, I have notes stating I took my son to see a doctor for 2 of the incidents on file. I never turned them in beforehand because I didn't think it would matter and my supervisors never suggested that if I had one it would excuse anything which I am now finding out is the case. I never missed a lot of work before having my son so this scenario is new to me. Other than the write-ups, how can they prove misconduct? I have compelling reasons for my absences. Is the fact that I signed write-ups probably enough for me to lose the appeal?




Answer
Hi, I'm not sure if that was your real first name or not, but I removed all but the first .. as it was also a beautiful and rather unique name .. or at least I thought so.

Clearly, the number of incidents may affect the outcome .. If it's thought to be excessive, there may be some uncomfortable questions to answer as to whether as an employee truly desirous of staying employed .. might of sought out alternative care for the days your child was ill.

But I will assume otherwise for the sake of this discussion.

Whether signing a written warning is required by an employer or not, can depend on whether the form states your signature acquiesces an admission to the rule or policy violation as stated by the employer. At least this is how I was trained to look at signatures replaced with a "employee refused to sign".

When it does not mean you're admitting to breaking a rule or policy there is usually a provided space for any "employee comments" or you could also add "see attached for employee response" when you don't have enough space.

Sometimes a refusal to sign a form that isn't an admission of guilt on principle alone, could end up being a discharged for insubordination (failure to follow a reasonable directive to sign the form) .. that sticks as misconduct.

Given that I've seen about a million written warning up close and personal, without nary an employee comment .. I tend to stress ( I know after the fact) the benefit of counter documenting whenever an employee is faced with signing a warning. Especially, when one doesn't agree with how the employer related the incident on the write up.

Dr. notes are rebuttal evidence that like a written warning makes an employee aware of employer rule violations .. can be used to make an employer aware the incident (absence in your case) was beyond the control of the employee.

However, having said this .. the reason I tell people counter documenting is important for an employee as well is because it improves credibility of conversations. When it comes to making it clear the employer was informed by you of the reason you were absent from work .. the purpose of written warnings become clear when there really was an avoidable rule violation.

So yes, submit your doctor notes, offer your truthful testimony about how you made your employer aware of the reasons for the absences.

But know this .. choosing our health .. our childrens' health and their care while they are ill .. is a reasonable and objective choice we have to make .. regardless of warnings about attendance ..

Some states will disregard those Dr. documented occurrences because the termination didn't take into account the reasonable circumstances causing a violation of an attendance policy found in employee handbooks everywhere.

However, for good measure, I'll keep my fingers crossed that the last occurrence accounts for one of those notes

As for the delay in discharge until two weeks after the final incident .. do you know if the employer will have any reasonable explanation for the delay?

Aside from your personnel file .. you should get a copy of the state's claim file before the hearing.

It's sometimes quite revealing and useful to see the adjudicator notes of any conversation with the employer during their investigation.

Chris

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Discharge for Attendance Misconduct from a Temp Assignment
by: Diamond

Hi Diamond,

Please note, I changed the title for your comment and will be answering that question in a different place. However, because I am separating your question/comment from "Discharged for attendance and employer now appealing the benefits", it's possible you may not of opted to get notifications for any other new additions to Unemployment-Tips.com and that would be sad .. because I hope you do get benefits.

Once I answer your question (sometime today yet), you should be able to find it on the blog as well as permanently filed under questions about temporary employees and unemployment benefits.

Sorry for the inconvenience Diamond.. but as my excuse, each day I wake up with good intentions to organize this site .. before the 4,000 or so questions already here, gets the better of me to deflate my intentions.

Here's a hint .. yes, I think you should be allowed to collect benefits, given the cause for the attendance issues.

But once again, the problem I see right off the bat .. is that the temp agency, although you tell me they are aware of the circumstances .. is still trying to fight your benefits and it's they who are calling what happened to you (getting sick and being admitted to hospital) work related misconduct vs. the other option they often fallback on .. a voluntary quit for reasons unknown to the employer.

In the meantime .. if I were you, I'd go check out what I have said about temp staffing agencies all along and also the chart you should find there, that tells you if Illinois has a special VQ provision just for employees of temp staffing agencies.

Or .. you might also be interested in my own personal experience being aware of the many ways temp staffing agencies aren't opposed to working the facts over. (You may want to scroll down to where my unemployment story begins.

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Misconduct
by: Diamond

Hi i applied for unemployment 2weeks ago to re open a claim because i got a job through a temp agency but i was discharged from assignment due to attendance but not discharged from temp agency, i was approved may 1 2017 was my first call in day but i also got a letter stating i have to do a phone interview about being discharged when i filed i selected laid off in drop off box because there was no choice for being let go from an assignment but not agency. In the letter ot states i was discharged from the agency due to misconduct which is not trie i emailed my recruiter to ask her about it she confirmed i was not fired from agency just that assignment, i was let go due to attendance but i was sent home early for being sick and admitted to hospital same day which caused me to miss days at work i returned to work under doctors orders amd was made aware that my assignment was ending due to attendance which i completely understand due to the fact of probation but being off was beyond my control i have all my doctors papers i also have emails between me and recruiter with me letting recruiter know i used call off line appropriately, so my question is will they approve me for unemployment ?

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terminated due to missing three days of work without contacting my employer
by: mental issues

I was terminated on Feb. 25th 2014, due to missing three days without contacting my manager, I did contact my co-workers regarding my absence, but it was never passed on to my supervisor. The issue that I have was that I lost my oldest son on Oct 2007, I still have not gotten over his loss, (he committed suicide), I've been trying to get help with my mental state, but i did not dis-close the problem that i have of myself to my supervisor, On October 2013 the company was purchased by a new owner, they hired an hr person, which the old company never had one, The time i was there from October 2013 to my last day on February 25th, We never had an orientation about the new company policy, I wanted to talk to someone regarding my mental state, due to the transition, it was more important to be present at work, due to the new ownership. Please let me know if I have case to appeal to collect unemployment, thank you



Although you tell me there was never an orientation to discuss the new ownership's new rules and policies, can you tell me if you signed an acknowledgement of receipt for the new companies employee handbook?

That is generally enough to combat any appeal argument based on saying you weren't aware of the employer's rule concerning properly calling off of work?

Were the three absences before, or after you supposedly violated the new rule?

And I would disagree with you about what was more important than just going to work instead ot "talking to someone" about your personal problems.

FMLA when an employer has 50 or more employees protects a job for health reasons (which include depression) and when there are less than fifty employees, even then a request for a medical leave of absence, ordered by a physician, might protect your ability to collect unemployment if refused by the employer.

Of course, there is the whole thing about you not ever mentioning your problem to your employer .. that doesn't make sense because it's how YOU make an employer aware of a health problem before they can react reasonably .. or unreasonably.

Add to this documentation which details your actions and the employer reaction and you then have something at least to carry forward should an unemployment appeal hearing become a necessity.

As for determining whether you have a case valid for appeal however, is not something I would fee comfortable saying yes, or no about at this time as I have insufficient information to analyze your specifics .. but you do.

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Received appeal decision..
by: K

Hi Chris,
Well, I lost my appeal :( My heart was nearly jumping out of my chest when I pulled the letter out of the box. Now I'm just emotionally all over the map. The explanation basically says that since there was the delay with my termination date, they are not going by the final incident on paper, but the incident prior to the request of my discharge a week before that which was a morning tardy due to an accident on the freeway. I'm so devastated. I spent so much time researching and gathering evidence to disprove their error of the final incident on my write-up that I had no idea I should've been focusing on something that happened 3 weeks prior. Who takes 3 weeks to fire someone?! Lol If I don't laugh I'll cry :)

Something I found interesting was that the letter says my old employer brought documented proof of the earlier dated termination request which he did not. And isn't even a traffic jam due to an accident technically not my fault. It's unforeseen! Anyway. My sister says I should appeal to the board but I'm so exhausted from all of this and from what I've read of your comments about the board's typical decisions, I don't think I can handle any more disappointment (or afford a lawyer).

Selective memory must be going around. Mine said something similar to yours during my hearing. Such a crock.

Thank you so so much for your time and suggestions. You are really doing a great thing here. Keep up the good work :)

K.



K.

Email me .. we can arrange a time to talk about the merits for a written argument for the board appeal .. or, I'll just try to help you put this in perspective so you can feel better about the decision.

Although I not happy that I always sound like a broken record or take these opportunities to jump on my soapbox on the subject of not being represented at a hearing ..

I was reading a Michigan precedent decision (even if you don't live in MI) that sums up why I believe, with every fiber of my being, that not being represented is the bigger risk no UI claimant can afford .. only they don't believe it until it's too late.

I uncovered what might of been a useful argument on appeal for the employer at the at the USDOL ..

If anyone cares to take a stab at uncovering, what I think they might of been eluding to .. I found it in the coverage chartbook.

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Update!
by: K

Thank you so much for sharing your wisdom! This site has been extremely helpful to me during this stressful time. And thanks for the compliment about my name!

I had my hearing today. It went ok I suppose.

A couple weeks ago while reviewing my separation paper work, I noticed it lists an error which states that on the final incident I was tardy to work a different shift on the day I was actually ill. I brought in copies of my schedule and a copy of my phone records proving I contacted my supervisor to let him know I would be absent 3hrs prior to my scheduled shift. The ALJ didn't seem interested in looking at any of my evidence. Not sure if that was a good sign or a bad one.

My former supervisor said the reason for the delay in my dismissal was because HR takes that long to process a discharge. The ALJ asked for proof of that, which he did not bring.

He also asked about a couple tardies prior to the final incident which I replied were due to heavy traffic and an accident in the mornings while commuting to my child's daycare and then back to work in the same city as home. He asked about how long it would take on average for me to drive there and to work.
I wish I had a better feeling about the hearing as my attendance was far from perfect but I always gave notice and stayed late up to an hour even if I was a few minutes tardy. Just thought I'd share my update. Now to wait the agonizing 10ish days..



Hi K

I know what you mean about the agonizing .. when my temp employer appealed my benefits .. my mouth went as dry when the decision arrived as it was during the hearing .. and I was about as positive as I could be about winning.

Same thing when I received the notice they had appealed to the board and I then had to wait for THAT dismissal of appeal.

I quit for health reasons and when the employer's witness(es) were asked if I had informed them about what my doctor had said .. they answered ..

I don't recall any such conversation with her about her health, but I do recall she was always calling and demanding another raise.

Objection ..That's irrelevant!!! Point being .. they didn't want to recall that when I informed them .. they didn't offer FMLA or another, less stressful job assignment to accommodate the medical reason .. nor did they want to go into the discussion about failing to pay me overtime on the 30 hours a week I was putting in about the 40 I was getting paid for.

Of course .. there will be those employers that think this is just me whining .. vs. admitting that employers are often just flat out wrong to fight benefits.

Let me know K ;0

Chris

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