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Potential Witness Says I must ask employer if I can use her as a witness

by Sam
(Tennessee )

At the end of december I ended up not being able o come back into work because my spouse and I got into a fight where he tried to attack me. Luckily, his friend showed up out of nowhere and held him back and was there watching him while I packed my stuff and my daughters stuff for us to leave that night and move 3 hours away to my moms house.


this happened on my day off. I called the next day and told my boss I couldn't come back b/c something happened w/my husband which caused me and my child to move to the new city and I couldn't come back. I then asked her if a transfer would be possible and she said I had to ask our store managers.

Anyway, they didn't want to work with me and ignored me. so I filed unemployment, was denied and now i have an appeals hearing where i need to prove i didn't quit just because i felt like it.

I wanted to use my former boss b/c I would always ask about extra hours, wanted to be full time, and I always expressed how upset i was about having hours cut. Also, I she was the first individual i told I was having marital problems and how i was looking for a divorce and how i was worried about money because i wanted to make sure i could care for my child reliably.

anyway, i got in contact with her and she said i had to ask my former employer if she can be a witness, but that doesn't sound right to me.

i recently found out she was demoted and is supposedly on 3 months probation.

Do i really have to call my old employer and say, "hey, I intend to use her as a witness and wanted to let you guys know"

I feel she will make my case strong.

what do you guys think?

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Feb 15, 2015
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And don't forget a burden of proof is actually an argument that tries to shift the fault
by: Chris

Think about your argument for having good cause to quit the same way an employer is trained to think about terminating an employee.

When an employer fires someone they have to prove it was for misconduct and usually, after the employee was made aware they did something the employer considers misconduct. It's the whole reasoning behind verbal and then written warnings, which finally warn the employee, "knock it off", or you will be giving us no choice, but to fire you .. because we tried to explain to you what we expected from you .. and reasonably so.

So, even though TN doesn't have a special provision that makes an exception for good cause to exist when someone quits due to domestic violence .. it doesn't mean you can't argue a burden to shift the fault to the employer because they choose to ignore a reasonable request to transfer you after you explained why.

Shifting the burden to the employer to defend a rule about transfer hanging only on whatever an SPH is and ignoring any and all other reasonable reasons to let an employee transfer under desperate circumstances.

Feb 15, 2015
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thanks
by: sam

Thanks for the encouragement.

Sometimes I forget I am doing my best and that's all I can do.

Feb 15, 2015
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The best you can!
by: Chris

Do your best as a parent always Sam.

And remember, you will find another job, so no matter what happens after that unemployment hearing, never doubt that why you moved in the middle of the night was for all the right reasons.

And if it helps, it is for that, you have my admiration, because it takes courage to admit when enough .. is enough and take action to break what is a cycle of violence that often ends in a lot worse ways than being denied unemployment.

Feb 15, 2015
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i think im at a loss
by: sam

Thanks for your insight. I don't have a police report.calling the police was the last thing I wanted to do.

I picked up and drove all night.

When I did finally get a manager on the phone he said I wouldn't have gotten a transfer b/c my sph was low.

I don't know what it was at the time, but everyone was behind in there sph. I remember during training the store manager said not to focus on the sph. It'll freak you out. Focus on the customer.

I have no idea what to do now.

Feb 15, 2015
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Have you received a notice of hearing yet?
by: Chris

She's wrong. If she will not willingly be your witness, you cannot compel her to by asking her employer (your former employer) if it's alright.

If you have a hearing notice, you also have hearing instructions and those instructions should explain to you that you have the right to subpoenas witnesses who have relevant (first hand knowledge) related to the reason for a quit, or a discharge.

However, you have a problem in Tennessee because the state does not have a provision in law that allows good cause for quitting due to domestic violence. (See Table 5-4 at the 2014 non-monetary chartbook located at USDOL's State Unemployment Law Comparison Charts).

However, this "I wanted to use my former boss b/c I would always ask about extra hours, wanted to be full time, and I always expressed how upset i was about having hours cut." may very well be considered irrelevant to not only the reason you quit .. which is provided for in TN UI law, but also because it's not very focused on what you need to prove.

Any and all efforts made to preserve the employment. You mentioned you explained to the employer your circumstances and the reason for the move, but you also asked to be transferred.

The burden of quitting for you, unfortunately, cannot be transferred to what some states make an exception for because domestic violence can be a compelling and necessitous reason to quit a job as the cause.

So, you have to focus on your attempts to be transferred to still make the quit attributable to the employer. And the argument would be that if the transfer was possible, refusing it was unreasonable.

Of course it might also serve your credibility to produce a police report involving domestic violence.

At least this is what this woman would try to argues if I found myself in a similar situation and facing a choice to choos my job .. or the physical safety and mental well being of my children .. and of course, myself.

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