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Fired for Performance and attendance - California

by Anonymous

I was terminated for my performance and my attendance.
I was tardy several times. I called in every time to my employer. They had a rule if you were more than 30 seconds late in a day (at any time, this would carry over from the morning as well) Example: Start time was 8 a.m. If you arrived at 8 a.m. and 30 seconds and lunch was from 12 to 12:30 - arrive back from lunch at 12:30 and 30 seconds, you were considered late one minute for the day.
I had 2 written warnings that they told me I had to sign. After the first warning, they made me take a day off work without pay due to one more tardy after the first written warning and made me sign the paper. I went in and explained to my boss and the HR person that my sister needed my help with her children. My brother in law was going through cancer treatments. They said that they understood but it was "company policy" and made me sign the paperwork.
I had a second warning after the day off they made me take. Again, I had given them information about my sister and how I was trying to help my family which they said they understood but was "policy"
They told me that I could not be late anymore and I told them I would do everything in my power however, I had a car issue on my way to work and had to have someone come and help me. I again, called in, talked to 2 people and let them know what was happening. They said no problem. When I got to work, they made me sign a sheet and take another day off. I went into my boss and he said that he understood, my job was NOT in jepordy but to please make it into work on time. I let know that it was out of my control and he said he understood but I had to still take the unpaid day off. Two days after I got the unpaid day off, they fired me saying it was my attendance and my "performance" I did extra projects for the company and any extra tasks that they gave me. I also would work some extra time on the days to make up for the "1 minute late" but they did not count that.
Can I still get unemployment? I did not willfully challenge their policy and did inform them of my situation and still made me sign tardy forms which I did.

Hi Anonymous,

The question should be what do I need to understand about my situation to optimize my chances of getting unemployment.

Unclutter the issues.

It is less relevant what your employers tardiness policy is unless you want to pursue the unreasonableness of the policy otherwise I would consider it a supplemental point. The policy I would have liked
to of known about is the progressive discipline policy.

It is irrelevant whether you did extra tasks.

It is irrelevant that you stayed to make up time .. unless the policy addresses this.

What is relevant is why the employer said they fired you. And you said the employer said it was for attendance violation and performance. Where did the performance issue come from? Had you been written up for performance issues before?

Can they prove it all amounts to misconduct or is there information you can provide to the state to show it was not willful and that the tardies were beyond your control.

The only issue is whether you were discharged for willful misconduct .. and within California's meaning or definition of misconduct.

Although I think we all understand why you felt compelled to help your sister .. this alone will not protect you, or be sufficient in itself to get you benefits.

But you did make the employer aware of your circumstances and although they said they understood .. they didn't really care about your personal problems. This is a plus, but again is not sufficient by itself. When you told the employer about your situation .. did you ask the employer for an accommodation for your temporary personal situation? Did you have any paid time off available?

Did you have the ability to schedule the times you helped your sister out? Were they all emergency family situations?

Signing write ups is not an admission of wrongdoing unless it states it is. When we counter document on those write ups we effectively get our side of the story on the employers biggest weapon for unemployment hearings. Did you do this?

Every single unemployment case is separate and unto itself. They may be similar, but they all have varying nuances.

This is why I offer consultations. To ask detailed questions about a situation. You'd be surprised how may times someone leaves out the most beneficial piece of information when telling me what happened. I usually have to dig for it.

Here's what you need to do. In the link I provided above .. click misconduct in the left hand navigation and start reading what the determination guide says. It is a very helpful resource. It can help you understand what you should focus on .. and what you should not focus on.

Your story left me with questions, and here is just a few.

I want to know why, after being told your job was NOT in jeopardy and serving a one-day unpaid suspension, that they decided to fire you? Did something else happen? What did those papers you signed actually say? Were you really never more than 1 minute late? ..
Can you prove you had a car issue which required help? Was the car issue the final incident?
Is your sister willing to be a witness? How about the person who helped you out with your car?


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May 11, 2013
Final write up for 1 year
by: Anonymous

I am currently on a final write up that will last 12 months..
The company has a policy where you have only 80 hours in a bucket time in one year or 45 minutes late to use and if we call in sick or emergencies or car problems or traffic and we are going to be 45 minutes late we get the first write so i was 1 hour late so i immediatle got a write up .. I did not understand the process so they say in cases like this just call the day off up so they say just take the day off and lose 8 hours which will be subtracted From the 80 hours and once you use those 80 hours up you can not miss anymore days.. Since I missed 86 hours I am now on a final write up.. This does not seem legal or can a company apply any attendance rules they want.. I am now in a final write which will last 1 year and I can not be late or miss any more days or lose my job.. Mind you I been sick a lot and currently came back from disability.. What can I do if Anything? Thanks

The attendance policy is the employer's call and so is writing you up.

However, that you say you just came back from disability has peaked my interest as to why you are now on a final attendance write up and for that length of time.

Can't really advise you anymore about what you can do .. without a consultation to learn more details about your situation.

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