If you are denied benefits for "Willfull Misconduct" is it hard to fight?

A family friend who has worked for a company for over 20 years (taking care of the elderly and disabled)in New Jersey with minimal absences, she covers shifts when short staffed, many going above and beyond letters from management, 100's of times of being called in, in the middle of the night to take care of a needy client after already working her full shift and getting out bed and going, absolutely NO bad marks on her record except for 2 in the past 6 months. The company was purchased 6 months ago and they put a device in her company vehicle that records speed. She travels from client to client in the company vehicle and uses a lot of highways. When merging from one highway to another she followed the flow of traffic while merging and went over the COMPANY (and Highway) speed limit 2 times in the past 6 months. After the second offense she was immediately FIRED. Really those where the only 2 things that they could say bad about her employment record. No written or verbal warnings for absences, latenesses, no call no shows, not doing her job correctly, no stealing, no fighting, no nothing but 2 going over the speed limit offenses in 20+ years at this company. Unemployment denied her for Willfull Misconduct for ignoring company policy yadda yadda. Does she stand a chance in her Appeal, since she did go over the speed limit and it was in the company rules, that this would cause immediate termination, even if she was merging into traffic from one highway to another (following the flow of traffic)? I am not exaggerating, those are the only blemishes in 20+ years. Any advice for the appeal, she is devastated. Thanks for any information. Toni





Hi Toni,

It bothers me even to write this because it's one of those situations where an appeal could go either way ..

But I'm going with my first impression, including some things that might shift some of the burden back to the employer.

At the time her company was bought she started working under a "new set of rules". NJ must have high car insurance because a "reasonable rule" usually depends on tickets received.

Was the employer rule "reasonable" .. this can be part of a valid argument because the law uses that term.

Just a guess, but I'm sure that they had a rule in their policy book (this is always the first place to look for something to help with an argument) which makes "everyone" aware of the possible consequence that
a person can be terminated and when someone is aware of an employer rule and they break it more than once the basic argument of a "good faith error" made in the performance of a job .. weakens. But we are talking about driving habits.

Additionally, I always asked an employer for the signed acknowledgment of receipt of the rule for a one time rule violation.

I also need to mention that NJ changed their misconduct definition and penalties this summer (2010) .. it use to be very loose because it lacked the word "negligence" but they have now added "severe misconduct" and lengthened the disqualification for that.

If you take a look at the definition of misconduct, many states use you'll notice that recurrence of an inadvertent mistakes must "manifest" as disregard or negligence to the point of showing "culpability".

Two times in six months of going over the speed limit raises all kinds of possibilities as to being inadvertent and good faith errors. I would argue that two times in six months does not really show a recurrence pattern as to manifest intentional negligence or culpability. Additionally, you did not mention that your friend had been issued a speeding ticket, but was busted by installed electronic equipment .. which might not be 100 percent accurate??

The confirmation of the rule violation relies on the accuracy of electronic equipment. Search the internet for failures of this type of equipment to be accurate.


If the employer installs equipment to track speed .. why not take one more reasonable step as trucking companies do for professional drivers and install governors to prevent inadvertent mistakes of non-professional drivers driving in ever-changing traffic conditions to which regular drivers must intuitively, adjust at times .. including the "unintentional" or auto response to surpass the speed limit upon occasion as to go with the flow of heavy traffic and not impede or enter the flow of heavy traffic.

My personal thought is appeal, appeal, appeal.

When anyone is fired from their job and then denied benefits for what I believe to be an inadvertent mistake or if you prefer, a "good faith error", I say, DON'T LIE DOWN.

Just fighting back can make you feel better about yourself and take the sting out of a cheap shot discharge and if you win .. the vindication feels great because you stood on principle.

I also say that the employer might be concerned about lowering their costs by getting rid of higher paid employees in favor of lower paid employees although this is entirely irrelevant to the discharge.



Comments for If you are denied benefits for "Willfull Misconduct" is it hard to fight?

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Dec 04, 2010
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Appeal Letter Sent
by: Anonymous

Hi Chris,
She sent her appeal letter out yesterday. She used the advice as far as it wasn't intentional but as to keep up with traffic for safety and that the equipment that was used isn't 100% accurate. I will let you know what happens. I hope it is good news, she deserves it. Thanks Toni

Dec 03, 2010
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I want to know how this turns out for her
by: Chris - Unemployment-tips

Toni, that's it in a nutshell .. unfortunately, misconduct as far as UI goes, does not really consider years of excellent service .. it is confined to either one occurrence or multiple occurrences of similar types of violations.

What the employer has going for them is two warnings in six months and the excessive 25 MPH:), but those of us who drive .. have enough common sense to know that it is very possible to have to go over the speed limit to merge onto another freeway full of speeding traffic .. once in a while. Let's just hope the hearing examiner shares my point of view.

I think there is validity to be made, that only two occurrences in a six month period does not rise to a level of "intentional" or "knowing"
recurrence of the violation of a reasonable rule (I also question the reasonableness).

Rather these two "isolated" errors were made in "good faith" due to reacting to the traffic conditions present at those two times. Misconduct itself is supposed to be "work related", but the employer cannot control traffic conditions which force us all to exceed the speed limit infrequently for fear of life and limb or pissing off some other driver.

But that's another story:)

Please let me know how this all turns out .. I'm pulling for her.

Chris

Dec 03, 2010
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Fired for Speeding
by: Anonymous

Hi Chris,

Thanks for getting back so quickly. To answer the question about receiving a ticket. No she did not, all they fired her on was the fact that the equipment recorded her speeding and let me add it was by a lot. At least 25 mph. But in her defense it only happened while merging from one highway to another and than started following the flow of traffic at a lesser speed. As far as the definition of "misconduct", I looked at the link and I don't believe it was willful or a wanton disregard for the employer, I think it was more that she didn't impead traffic flow and didn't cause a possible accident.

What really burns me up, is that her record is impeccable expect for those 2 speeding violations only on the DEVICE, she didn't even get pulled over for speeding, absolutely ridiculous. As far as maybe getting rid of higher paid employees, could be, especially in this economy. This woman is one of the finest people I know, she would help anyone at anytime for any reason and truly loves working with her elderly and disabled clients, she makes a difference in their lives, it breaks my heart.

So if I understood your response correctly, if the employers rule was not reasonable, this could be the argument she needs to go with, especially since there were no tickets involved. As far as a "good faith" error, it was more to do with not causing a traffic accident or stopping the flow of traffic, it was not done because she was late or she has a heavy foot, it was strickly due to the traffic flow. Again, the MPH over the speed limit was at least 25 MPH, so I think that shows traffic was going fast and she really didn't have a choice, it was for a few miles, not for 20 or 30 or 40, just while she entered the traffic pattern. Thanks Toni







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