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"Misconduct" even though my actions were in good faith?

by Dave

I was terminated as a restaraunt GM in NY for "withholding information" and "not acting in the best interest of the company". These are quotes from the conversation with my boss when I was terminated. My attempts to explain that the situation in question did NOT involve current employees and that I WAS trying to act in the company's best interests by investigating rumors rather than passing on inaccurate information were not accepted. I think it is important to note that there was no policy or procedure outlined for such an instance. Also, I was considered an "excellent" manager and had performed "very well". I had received no written reprimands or warnings. I have detailed the incident below.

In the Notice of Determination I received from the NYS Dept of Labor, I was denied UI benefits because "your employer found out that you withheld information regarding a current employee and criminal activity" and I was denied unemployment based on my former employer's description of the incident in question.

I requested a hearing to appeal the initial determination and presented the facts that I have detailed below. I lost the hearing. A summary of the ALJ's opinion: 1)I was terminated for failing to promptly report a police investigation involving a current employee (NOT accurate) 2) I should have made my employer aware of the issue on Monday rather than Wednesday 3) "The claimant did not deliberately attempt to injure the employer but the delay in notifying constitutes misconduct within UI Law.

My question is should I bother trying to appeal? In my research there is UI Case Law that defines misconduct as "any volitional act or omission which is detrimental to employer's interests". Obviously I made specific choices of how to proceed throughout this issue so my actions were "volitional" but I fail to see where they were "detrimental". Additionally, Case law also identifies circumstances where a finding of misconduct is NOT justified. These include "Inadvertance or ordinary negligance in an isloated instance" and "good faith errors in judgement or discretion". I feel that I was simply handling a situation that primarily involved a FORMER employee and did not have an effect on my employers business interests. In my opinion my actions constitute at worst an error in judgement by notifying my boss of the situation on Wednesday rather than Monday. Additionally, I believe that this would fall under the category of "isolated Instance".

I would appreciate your thoughts. Thank you.


Friday - a police investigator came to the store to ask questions regarding a FORMER employee. These questions included 1)wether I or my Assistant Manager had been in contact with the person (answer was no) and 2)if we had any contact information for him (again the answer was no). I asked the investigator if I needed to be concerned about any current employees as some of them had been friends with the individual. I was told there was no need for concern - they were simply trying to find the individual.

Monday - the investigator returns while I am at the bank and speaks to a shift supervisor. The purpose of the visit was to speak with a current employee who may know of the individual's whereabouts. The investigator was there when I arrived.
I explained that I knew the current employee had cut ties with the individual and did not have a phone at the time but I would be happy to have him contact her. She agreed and thanked me. Again I asked if there was any concern about current employees and AGAIN I was told no. A short while later the shift supervisor (SS#1) came to me with "concerns" about another shift supervisor(SS#2) saying that the individual the police were seeking had lived with her (SS#2) and she might be covering for him. SS#1 felt we should call the police or tell my boss. My response was that before we jumped on the band wagon and started making accusations that may not be true we should look into the matter and decide how to proceed. I spoke with both shift supervisors simultaneously and explained that we needed to cooperate with the police and if there was any information we could share we should do so. I then specifically asked SS#2 if she knew where the individual was or if she had any of his property. She replied "No I don't know where he is and I don't have any of his stuff. I'm worried that when he did live with me that there was stolen stuff in my apartment." I was satisfied with her response as was SS#1 who came to me with the original concerns. I did not pass on any information to my boss at this time as there did not appear to be reason for concern based on my conversations with the investigator and both SS's. I was also concerned about the negative effect of passing along information that was nothing more than unsubstantiated rumors. This concern was based on prior observations of my bosses negative, knee-jerk reactions to rumors in other situations. I felt that would be detrimental to the operation.

Wednesday - the investigator returns and asks to speak with SS#2. After a short conversation the investigator asked if SS#2 could accompany them to her apartment so they could search it. I agreed. When they returned the investigator thanked me for the cooperation and the SS#2 had been helpful. When I inquired AGAIN if I needed to be concerned the investigator assured me by saying no. She said that SS#2 had been very helpful and that there was nothing in her apartment that didn't belong to her. It was at this time that I decided to call my boss to fill him in on the situation as well as assure him that there was no cause for concern.

Hi Dave,

It's too late for my thoughts. I want nothing to do with board of review appeals.

Talk to a lawyer though because I do think you have some sound basis for an appeal since there was no problem with a current employee and the fact that you were a "general manager" .. did you have any authority at all to make decisions .. under other circumstances you would have been the "employer".

Since there was not a written procedure .. it would have been a one time good faith error in judgment .. and I'm still trying to figure out what would have been detrimental to the employer. It seems you handled it well.

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by: Anonymous

Thanks for the response.

Yes I did have authority to make decisions. I could hire/fire employees and grant pay raises for non-management personell. I was also responsible for all scheduling, food orders and payroll. Additionally, I was the primary contact for questions or problems experienced by other GMs.

A couple other points that I forgot to include in my original post.

First, I was told to treat "my store" as if I owned. In fact, when I was hired, I was told by the franchise partner that fired me "I don't have to agree with your management style as long as you get results". I was getting results - putting my store in the top 10% of all locations in the first six months.

Second, (and here is the real kicker) SS#2,the employee that SS#1 was concerned about in the situation I described, IS STILL WORKING THERE!! In my opinion that only reinforces my original instincts on how the situation should be handled!


So will you consider having an attorney prepare the legal brief for your appeal?

It is my belief that n appeal for review of a lower level hearing decision requires a legal brief to have any hope of success.

Although it can be difficult to find an attorney who wants to bother with a lower level hearing .. unless you're talking about "wrongful termination" .. they may be more inclined to handle this level of appeal.

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