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Fired 4.7.17 and Employer Checked Misconduct

by Anonymous
(California)

I was fired on 4/7 and have my phone interview on 4/25. Like People on here, I never been fired before.


I was in the middle of training a new person to our department when the manager pulled me away. He and HR Personnel were in a room and they said I was fired. They said I was fired for being unproductive on 4/2 while on the clock. They said they had a tape.

I asked where was the tape and what is their definition of unproductive because I did nothing no different that day than any other day. they said the tape was company property they weren't showing me and they asked me to sign the document, I refused to sign it and I told them I wasn't signing it because I did nothing wrong. I asked for a copy of the Termination paper and my employee file, they gave me the termination paper after going back and forth with me and mailed me my employee file.

I asked did they write it such that I wouldn't get my unemployment. They said Yes and that I would have to appeal and that they were ready for an appeal. I told them they should be ashamed of themselves, that they were wrong, that I had a family and that I was going to sue them for Discrimination.

I asked them if they were doing this because I'm black. I also told them, I wasn't completely surprised because of everything leading up to this, based on the way I had been treated by the company after my return from maternity leave.

I demanded my employee file, the HR Personnel refused and threatened to call the police on me if I didn't leave. I gathered my belongings and left.

I applied for unemployment 3 days later. Today, April 23, I
got an alert to certify for benefits for the last two weeks but my phone interview is on april 25th. i have filed a EEOC claim against my former employer for the discrimination and retaliation i endured. i just don't want them to be able to deny me unemployment too, they done so much to me already and i need to support my family until i find other employment.


Hi Anonymous,

If you don't know what I'm about to ask you about that is relevant to the employer's burden to prove misconduct, it would be safe to assume you haven't read many, if any questions answered before about being fired for misconduct.

In the file you received by mail after your termination, were their other warnings regarding your job performance (not being productive) prior to this final incident that caused the termination? Misconduct related to job performance is difficult for an employer to prove without prior warnings, which literally serve as proof the employee was made aware of a problem the employer was having with their behavior, or performance of a job .. before a terminationk.

Out of curiosity, more than anything, would it be an accurate guess on my part and since you say the employer claimed to have a recording as proof you were unproductive, but wouldn't let you listen to it, that you might of been a customer service rep of some sort, given these are employees who are frequently recorded ... ?

How long ago did you return from an FMLA, or maternity leave. I ask since you also say you were being discriminated against because of your race as well as being retaliated against .. for what, I'm not so sure?

How long did you work for this employer in total?

I've moved your question to the others about getting fired for work related misconduct.

Comments for Fired 4.7.17 and Employer Checked Misconduct

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For: To Appeal, or Not???
by: Chris - Unemployment-Tips.com

When denied unemployment benefits, and in doubt, or not, if you can win a hearing, I say, send the appeal letter timely (fax, or certified mail is my preference because either way produces proof of timeliness) to preserve your right to appeal and that full fact finder lower level tribunal hearing.

While waiting for a notice of hearing (NOH), you will have time to research and work out what is the best way to argue your termination was not for work related misconduct.

Worse case scenario, if you decide you don't have any valid way to argue why you should be held as guilty of misconduct, you can later find mention in the hearing instructions on how and when to fax in a letter withdrawing your appeal.

I hate the idea that lots of people lose these hearings by default when they don't even appeal for the hearing, or even put in a request for postponement when they have good cause to make the request ..... before the hearing.

Directions for requesting a Postponement (or a continuance) can also be found in hearing instructions, or pamphlets that come with notices of unemployment appeal hearings.

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To Appeal or not???
by: Anonymous

My only regret in the over 7 years i worked for my company is my friendships have suffered.I was fired on 1/12/2018 after a long year of "talks" even with one doctor that i am very close with, i even called him a traitor and he apologized for being "bamboozled" into this BS.The office manager even went so far as to give back my review to this doctor and said"Look more closely i think there needs to be some adjustments,no one deserves 10 unless perfect." i was fired for misconduct per old co.I am a veterinary technician, i have worked very hard to establish very close relationships with clients based on, trust,honest communication /compassion,and competence.A client called the hospital and complained about me i was told by office manager.She seemed very pleased with herself,i called the client to apologize for any misunderstanding and she was very receptive to my call.She offered a 3 way conversation with the office manager.I told office manager that i apologized to the client and there seemed to be some discrepancies in the office managers story vs clients and she puffed her cheeks out and told me to leave. i was floored by her response text my manager,since when do we not step up and take responsibility for our actions. Next day when i went into work i was asked to clean out my locker and cubby. As for our office manager has only been with the company for 2 years. I am not sure i will ever understand her motives.

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Update to being wrongfully terminated on 4.7
by: Anonymous

I just wanted to update this. I was able to get unemployment even though my former employer told me I would have to appeal. I also filed a claim with the EEOC and I received a right to Sue letter, I plan on filing my claim within the next month but I have up to a year to file. I thank you for your comments and suggestions because I wasn't sure what to do and I hope that I can help someone as well. Just know that you have Rights and it important to file everything timely.

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What I Assume About All State UI agencies
by: Chris - Unemployment-Tips.com

I'm the first to tell an employee assumptions are a bad idea .. save one, that getting unemployment benefits is rarely easy.

I look at state UI agencies as if they were insurance companies, to which all employers with covered employees must pay the premiums for "regular" unemployment insurance benefits.

(Potential exceptions would only be three states whose laws allow a payroll tax to be taken from employees, usually under certain conditions .. minus Alaska that does withhold from employees for it's program- CA is not one of the three, although CA does provide an option for a payroll tax from employees for it's temporary disability unemployment benefits, which basically amounts to the possibility of a paid leave of absence, even those who may not be eligible for an FMLA leave.)

Given most employees do not know the rules about non-monetary sep eligibility, or that states do not collect enough unemployment tax in general to weather times such as what occurred during the last recession to allow an UI fund to remain solvent, vs the mandate to borrow money from the federal government when a general UI fund is depleted to the point it hits a "trigger amount" for a mandated loan from the federal government to remain solvent, unemployed people often apply and assume they will experience some sort of benevolence from a state agency when it comes to determining fault, based on the available information, that can only be reversed through the appeal process, for both employer and employee.

I think that is always a mistake for employees who may in fact, have proof of why they lost their job through no fault of their own, to assume any benevolence from a claim adjudicator.

So .. while I had that job helping employers to deny benefits, I felt that I myself, an employee who worked steadfastly to get a denial, was in reality an uninsured motorist on a highway called at-will employment and I was thankful .. I understood how the accident investigations were supposed to work to find which driver was actually at fault.

As for the employers who often feel they are the party wronged by the state agency, but don't understand why, they at least have the ability to access the services of companies to manage claims filed against them to avoid the rise of the premium aka claim experience rating. And there you have it .. what led to me having a job and an opportunity to have a good overview of how the "investigation into eligibility" does work .. and on a case by case basis and why this website exists for employees like me .. minus the job experience I was lucky to of had.

PS Thank you for giving me an opportunity to discuss unemployment benefits .. generally.

Chris

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update
by: Anonymous

i talked to edd today, they were very short but revealing. the call was 10 minutes long, there was no time given for explanation. she said i would get a letter in 7-10 days letting me know their decision.
it baffles me that she told me that unemployment benefits are not a right, it crazy how this system is set up that you can work for a company and they decide to get rid of you for their own reasons that you are unaware of and you now are without income until the EDD or a different Employer decide it ok for you to get the money you earned.
i have never been in this predicament before and my heart goes out to all of us that are hard workers that now find themselves dealing with EDD and former employers.

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reply to chris
by: Anonymous

thank you for your comments, i have my telephone interview tomorrow. i just hope i don't have to appeal like the hr person who fired me said I would. i told her she was wrong, but it amazing to me how much the Law allows these companies to get away with and how much personal hatred is in the workplace. with that being said, i am going to just answer what is asked and let them know i was the one wronged so to deny me UI benefits would just be compounding the issue. i will let you know what happened and i appreciate you taking the time to respond with good solid advice. thank you.

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Final Incidents Without Proof of Misconduct
by: Chris - Unemployment-Tips.com

It's an employer who has the burden of proving a termination was for "misconduct related to the work" and when the final incident causing a termination, isn't supported by documentation (to serve as credible evidence an employee was warned, consider that a hole in their burden you can exploit, with evidence such as might be found in the employer's own employee handbook regarding write ups and warnings that may be addressed in a section about "progressive discipline".

All can I really tell you about whether you can counter effectively, or not is it comes down to knowing what and when to rebut the employer's burden, for purposes of getting, or keeping benefits and acquiring any supporting documentation for your argument.

I'd begin looking for an employer policy the employer ignored, or didn't follow .. because despite the employment being conditioned as at-will at the front of most handbooks .. it does establish the standards of behavior and expectation an employee can also expect.

The way I see things for you, is the need for you to focus and exploit the holes, anyone fired should look for, but they usually don't, because they have to look to the burden of a discharge, to see what an employer may be able to credibly prove, or not to get a favorable ruling for themselves on misconduct.

I abhor that any woman today (only one protected class of people as far as the EEOC is concerned) is still enduring such stupid crap in any workplace, or having to withstand being treated as if having to pump a breast, feed and care for children .. as well as work full time, makes them somehow, less valuable to an employer to think firing them for performance issue without prior written warnings .. should suffice to deny benefits for damned unemployment benefits.

I don't know what they could of been thinking, but when I hear the stories .. I still know I need to set aside my pissed off attitude to see the holes.

Personally, I don't think it was the smartest move to fire you for performance issues especially, if you filed that EEOC complaint prior to your termination. Just filing a formal complaint, can be like a line drawn in the sands of time. Hr pros tell employers that's a recipe for bad news, in that it's how and why some employers end up paying settlements due to retaliation, even if the discrimination isn't substantiated and all the employee gets out of the complaint is the "right to sue" permission.

But now .. I'm just being that non-attorney UI coordinator, who liked to talk shop with some attorneys to get a better grip on employers I knew were imperfect, and literally blundered through all this crap trying to use smart HR type strategies meant to protect an employer in these sorts of workplace scenarios to the best of their very little abilities and then needed some non-attorney UI hearing rep .. to do their best to set the UI record straight for them.

When an employer is the moving party and mainly, because they couldn't push an employee to quit with acts of retaliation, it's basically the reverse of what happens to employees who do quit, but without evidence of good cause to support the efforts to preserve a job,(often found in unemployment law), but nonetheless, potentially due to a boss, or some other employee's action that were not reported to those who do have the authority to give reasonable directives to a boss .. to stop retaliating.

A job can be exhausting enough .. without having to exert energy against a culture of work allowed to be basically, out of control, but documenting your efforts .. regardless of whether an employer only wants to "talk", is how to take this UI bull by the horns .. if you do need to win.

All the best,

Chris

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reply to posting
by: Anonymous

I was in customer service. i received no prior warning regarding job performance. i came back from FMLA in march 2016 and i have evidence that they didn't even want to hold my job for me during my Leave, they didn't have a mother's room when i returned and were constantly harassing me about pumping, I have already filed a claim with EEOC, I just want to make sure that they can't take my unemployment too. I have been treated with such disrespect and contempt from a company i worked for in my life and i been working for over 20 years. I just need to be able to counter whatever they might say because I did nothing wrong. thank you.

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