Fired For Missing Work On A Day I Wasn't Scheduled To Attend...
I've worked for my former employer for 20 years. I came in for my normal shift on a Sunday. One of the owners (who has never liked me) was there. They said "you're fired, where were you yesterday?"
I replied that I was off, I was scheduled to be off, it was a normal day off for me, no one had asked me to come in, no one tried to call or contact me... And then I was cutoff with "You need to leave. You're not welcome here. We don't want you here."
I was shocked but I went ahead and left.
I filed for benefits and waited 8-weeks for an interview. It was the same story on the call, employer said it was no-call no show. I said I wasn't scheduled and that I did everything possible to keep my job. I was denied.
I appealed. I attended the call, the ALJ got on the line and said that there's a computer glitch, that the hearing would have to be postponed. My hearing is next week, at which point I'll have gone 12 weeks with no benefits. It's amazing to me that people have to go this long and they're okay with it.
What's important now is that I win. I realize that it's a "he said she said" situation. The fact is this was either a blatent attack on my job or the owner I spoke to was extremely confused with the scheduling that week, I believe it to be the former.
I believe I was initially denied because they claimed misconduct. Which I think taken at face value I'd probably believe the employer too. I spoke to a former co-worker who told me that both owners where at work and swamped the day of my first hearing, that they didn't try to call in. The rumor is that for whatever reason they're not planning on contesting.
Assuming that's true, the burden of proof is on them to prove misconduct, correct? And if they don't get on the call or try to contest, that as long as I don't self-disqualify and state the facts as they happened, this should be a fairly easy decision in awarding my claim?
This has been a nightmare. As long as I stick to the facts - I wasn't scheduled to attend, and I had no way of knowing anyone expected me to attend, that I didn't want to lose my job and did everything I could to keep it - they will have failed to meet their burden and I should be awarded, right?
I really appreciate any help here.
Answer to Fired For Missing Work On A Day I Wasn't Scheduled To Attend
You are correct, the burden of proof if the employer's to not just talk about your guilt of work misconduct, but to prove you were made aware of the consequence the offending employee behavior should not be repeated.
However, that you don't have a burden to prove here, doesn't mean you shouldn't prepare to rebut an employer's burden, by proving why the employer's choice to fire you .. was "unreasonable".
For anyone fired from a job, it can
be helpful to read the burden of quitting voluntarily. In that scenario, a claimant of benefits is generally expected to prove the cause for quitting is attributable to the work, or employer AND to do that the argument becomes more compelling if they can also prove they exhausted reasonable efforts to first preserve the employment .. by communicating their concerns with the employer (communicating to me .. means documenting for the purpose of having proof of "conversations").
Well, the same concept holds true for employers when they decide to fire someone for some mundane type of good cause such as attendance issues, and hope to prove facts vs. relying on being judged by a hearing officer as the more credible party when it is a he said/ she said type of hearing. (I'm not a fan of talking without some sort of proof to back up a conversation took place because it's like handing your "fortune" over to the wide discretion of the hearing officer to judge who told a more credible story).
Typically, I ask a person fired, the same type of questions a claim adjudicator would ask .. only I then tend to expand my searching to find weaknesses in the burden .. which either means I'm looking for those things I believe should be guarded against when quitting, or exploited to an advantage .. if fired.
First question .. any prior written warnings for violating the employer's attendance at work policy?
I will tell you now, generally speaking, a smart employer waits for two .. maybe three consecutive no calls / no shows to shift the burden when they legitimately code an employee out as a voluntary quit by job abandonment .. vs. a discharge for unacceptable attendance.
Discharging an employee after one supposed no call no show poses serious problems for the employer who should know, at an appeal hearing, they must still sustain the part of the burden of misconduct that shows the employee was aware further failures to adhere to the calling off part of the attendance policy would put the job in jeopardy and suffer consequences .. up to and including termination for behavior truly capable of harming the best interest of any employer with a business that relies on employees to conduct business on a daily basis.
As for the wait you're experiencing .. twelve weeks isn't abnormal especially when initially denied.
A reasonable expectation is 30 - 45 days for the initial claim adjudications including monetary and non-monetary determinations.
Another 30 to 45 should there be an appeal to open up the lower level tribunal appeal process.
And possibly even more time when someone crosses their fingers for a successful board level appeal.
But then I know I'm a little jaded .. or possibly just inoculated to a fact of life for millions of unemployed people.
An unemployment insurance government agency .. is just another name for a state level administrative law bureaucracy .. many of which appear enjoy an internal game of hiding the rules of the game .. even if they expect us to know how to play, by the time we lose our job through no fault of our own.