Is this truly 'misconduct'?.....

by Eddie
(Los Angeles, CA )

Dear Chris,


I was recently terminated for 'falsification of timecard', although the employer didn't know exactly how i punched in to work. They just noticed that i wasn't at my desk while according to online timeclock, i was 'at work.' I had a friend/co-worker punch me in on several occasions when I knew that i was going to be late. I subsequently applied for UIB, but am anticipating a denial letter due to 'misconduct.' If this is the case, i am planning to appeal. I'll give you the 3 reasons on why i believe i have a case: 1. i was never given a specific warning (verbal or written) regarding the timecard falsification prior to being fired, 2. On many MORE occasions (approx. 30-40), I had punched out at the END of my shift, but continued working until i completed my assignments for the day. My boss was aware of this, but i was not a. warned to stop doing this nor b. paid for all of that overtime (avg. of about 1-2 hours per occasion). And finally, 3. don't know if this matters, but the person who punched me in continues to be employed there (I happen to know this for a fact). I am in California, and i believe that the reasons i provided above, would still make me eligible for benefits, per the definition for 'misconduct' on EDD's website (i.e. no warning, boss was aware of timecard falsification at END of shift, etc.). I would really appreciate your help in just letting me know if i have a strong case for an appeal. Sincerely, Eddie



Hi Eddie,

1 & 3 might make for a weak case, I don't see the relevancy of 2.

But the real kicker for me is that I know, in most employee handbooks .. Having someone punch in for you when you are late is "time theft" which is usually just a part of a time falsification policy and it usually doesn't require prior warning to be seen as a cause for immediate dismissal .. because most people know without a doubt .. this is wrong to do.

How will you argue that what you did was justified by staying late off the clock .. how do you prove that .. I know you can say it, but how will you prove it. In any case .. I think it is irrelevant to the cause for termination.

So just in case I haven't made my point yet.

Yes, this it "truly" misconduct.

And I could bury you .. if it was my job to do so.

But it's not .. so I say .. find another job Eddie and misconduct no more.

Chris

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Dec 30, 2010
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i was fired for my attendence
by: Anonymous

I was warned about my excessive call outs for me not feeling well due to the fact of my pregnancy and my kids not feeling well at times I had to leave work a lot early due to these facts my last straw was I didn't make it to work and I didn't call due to personal things can my unemployment be denied due to these facts




Hi,

Considering the final incident involves the fact that you did not call "due to personal things" .. yes, you can be denied and most likely will be denied.


Aug 13, 2010
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comment on Chris' response........
by: Eddie

Hi Chris,

And here i thought no.2 (boss aware of timecard falsification at END of shift) was my strongest point! i guess i'm just ignorant to the rules/laws. These are my 2 thoughts:

1. how can i be in trouble for timecard falsification at START of my shift when boss is aware of TC falsification at END of shift? in other words, isn't the company just as guilty of "time theft" if: A. I wasn't paid my proper overtime, and B. never received formal verbal/written warning for working past the time of punch-out. In California at least, I believe this could mean the difference between being eligible and not being eligible for UIBs (i.e. there was ALREADY some kinda 'misconduct' going on with unpaid overtime that boss/company was aware of, but did not formally disapprove of).

2. This is where i probably sound really dumb, but i was assuming appeal process was like a real court case where i can request (subpoena?) evidence/witnesses (like i said, my boss was aware of unpaid overtime work going on)to help support my case. If so, i would be able to request email evidence and witness (i.e. boss) to prove COMPANY's "time theft."

But not gettin my hopes up, like u say on your site, maybe i should have prepared my evidence PRIOR to being fired, but really didn't see it coming. Oh well, I appreciate your time, and no more misconduct for me!

Thanks,
E



You're not dumb, you're culpable.

You told me you punched out and then worked late. That is always the choice of an employee and of course you can subpoena witnesses and documents, but does it really have anything to do with the reason for discharge? And how do you prove it? A witness who still has a job with the employer?

Not to mention that employer misconduct doesn't necessarily cancel out your misconduct.

Use the UIBDG and in addition to just understanding what CA deems misconduct .. look for information about the uniformity of enforcement of rules ...

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