Do you think I will win my appeal?


(MA)

I was terminated in May for a violation of Email Policy. I was sent a email by a co-worker who had on occasion sent me a harmless joke or information of an upcoming golf tournament (which was not a policy violation). I was in a rush in between meetings and forwarded the message to a co-worker not even thinking that it would get me in any trouble. The next day I was called into HR and I was asked if I received an email from a "co-worker" and if I had forwarded it. I answered yes to both questions and I was then told that there was a pornographic attachment on the email and that I was terminated. I was unaware of the attachment and I knew that our computers were strictly monitored, I would have never forwarded the email had i known it's content. I worked at that company for two and a half years, never had any write-ups or warnings, and was promoted three times with great performance reviews. My initial claim was denied saying that I willfully and knowingly violated a company policy. I disagree with that statement but how could I prove that I didn't view the attachment. I don't have the email, and have no way of proving that I simply forwarded the message. What do you think the DUA will decide?



Well, I have a question. Was the co-worker who sent you the email .. which you forwarded alos terminated?

If not there may be an argument in the fact that the email policy was not uniformly enforced. .. Otherwise .. I wish you luck.

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Sep 25, 2010
Went to Hearing Yesterday
by: Anonymous

I had my hearing yesterday and I think it went well. My former employer did not show up and I got there early to review my DUA file, which I'm glad I did. The file that my employer provided pretty much stated that other people from my company had been involved and that only 2 were terminated, so that helped my statement that the rule wasn't enforced uniformly, also the file did not state that that I opened the attachment prior to sending the email. The hearing itself was about twenty minutes, The hearing officer asked me several basic questions, job title, dates of employment, if I had ever been written up in the past etc.. He than asked what happened on the date of the incident and I told him I was in a rush and was unaware of the attachment and it's content. He then asked if I had anything else to add and I provided the business policy on progressive discipline and told him that I disagree with the the original decision that I committed a knowing violation of a uniformly enforced rule because I was unaware of the attachment and that the rule had not been uniformly enforced. So I think it went pretty good assuming that the decision is based on my testimony and the employer did not attend.



Hi,

Now don't let me deflate you in anyway .. I think it is very possible that you would have won this hearing even if the employer had attended.
But ...

When the employer isn't in attendance .. it does not mean that there won't be another appeal hearing. It just means that the decision will be made without there input into the hearing process.

I use to routinely, put requests for postponement into the state's record and then a request for reopening would be sent to the state with an appeal to the board of review. Depending on the state .. it was often quite a successful strategy for getting another hearing scheduled and the first decision vacated.

There would just be an additional issue on the next hearing notice for the "non-appearance".

So what am I saying .. ?

Don't count your benefits until you know for certain that the employer hasn't done this.

Other than that .. it might just be that the employer didn't want to wast their time and energy on what they thought to be a loser.

Not everyone appeals a denial.. or even goes to appeal hearings when it's the employer that appeals.

This is a huge mistake .. to not attend a hearing without first requesting a postponement or rescheduling of the date.

Sep 04, 2010
More Info
by: Anonymous

Hi, thanks for all of the information, I appreciate it. I found out that two other people had forwarded the email, HR was aware of this and no corrective action was taken. Will this prove that it was not a uniformly enforced policy? I also found out that my employer will not be going to the hearing. The employee who had originated the email had his hearing 2 weeks ago and DUA decided in his favor. I know that if he got it than I should also but he hired a lawyer. I just want to go in there with as much info as I can.



The employer not going is a good thing, because you just stating that that the email had been forwarded by two others and the employer was aware of this also therefore, no uniform enforcement of the policy .. would be hearsay, unless you had copies of the emails or a witness to testify that also forwarded the email and I would expect the employer to object on those grounds.

Aug 30, 2010
Company Dispinary Action
by: Anonymous

I have my companies Policy on disciplinary actions.
It states that there are three types of offense's, minor, major, and severe. Listed under major is "improper internet, computer and email use (offensive joke, images, and chain mail)". The disciplinary action section states that "A first time violation may result in a written warning including suspension up to and including termination of employment for willful violations. Recurring violations may result in immediate termination of employment depending on circumstances and the employees past history of counseling and disciplinary action" Given what I have already told you about my situation, how do you interpret this policy.




Pregnant with possibility if you "unknowingly" violated the policy in Massachusetts since the email did not originate from you.

Aug 28, 2010
Coworker also terminated
by: Anonymous

Yes, My co-worker was terminated, he originated the email and sent it to several other coworkers and to some of our clients. I feel that I should have been warned, suspended at the most, some form of progressive discipline. My company had a major layoff during the week prior to my termination and for a couple weeks following my termination. When it was all said and done roughly 80 out of 150 people were laid off, I believe this had a lot to do with why I was terminated. Also, doesn't my former employer, if they show up to the hearing, have to prove that I purposely and knowingly forwarded this email? If they bring the email it will be clear that I didn't write any message and that I just forwarded it.


Hi again,

Now you're splitting hairs trying to reduce your culpability and for that .. I would like to hear that there is something specific in the policy that might lead one to believe there are different consequences for different "levels" of culpability. .. but you live in Mass .. so it might work, but I wouldn't bet the farm on it.

Try the resources for Massachusetts unemployment. The service representative manual will give you an idea of how they adjudicate claims.

As I've said before .. this all becomes easier to understand with repetition, but when you can read the precedent case law you might start to get a sense of what I mean, .. because it is within these decisions that the words used in a statute are "interpreted".

I love this one. It's a MA decision and it spends a great deal of effort interpreting what the legislature meant when they included the word "knowing" in their definition for misconduct.

Knowing violation, should be a very important factor for you to explore and maybe focus your effort on. Prove that you did not "knowingly" violate the rule because you were unaware of the attachment. You were rushed, etc. I miss attachments all the time .. unless I'm expecting one.

Remember, we're trying to do our best to think like a lawyer .. and if anyone at all, remembers the movie "The Paper Chase", that supposedly, takes a lot of time to do .. because we all start with mush for brains.


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