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Terminated for being arrested on the job

by Anonymous
(Illinois)

I worked at a company for approx 1 year, and missed one day. This was when I was arrested on the job and incarcerated for 24 hrs, making me miss the next day of work for something completely unrelated to said employment. I drove a truck for them and they had to come and get the truck( locally...like 10 miles away) as I was (obviously) not able to return it to the yard.


Initially, based upon the employer's protests and claims about misconduct, I was denied my UI claim. It should be pointed out that the employer claimed their first reason for termination on the denial.

I did, however appeal the decision based upon the fact that what I was arrested for had nothing to do with the job and therefore could not be considered "misconduct connected with the work" as it is called in my state. I even cited the statute in my appeal.

It was a telephone hearing, with me vs. my ex boss, his wife (general manager) and their attorney. As I am not an attorney....I feel there were some points/ questions I should have made/ asked etc, but I did end up winning the appeal.
The ALJ sent his decision and based upon the hearing...in my opinion his judgement and decision was sound and by the law.

Now, The employer is appealing to the Board of Review and I am at the stage where I need to rebut their written argument, in which they state a different reason for termination than was stated on the initial denial.

I realize I am not allowed to bring up any new things that weren't in the transcript of the hearing ( which I, unfortunately never requested)..but they should not be able to either, right? The reason they cited for my termination was NOT stated in the hearing!!!! They now claim I was terminated "due to incarceration".
I even asked my former employer point blank in the hearing why I was let go, and he said it was simply on the advice of the company attorney, nothing more. Nothing to do with my job performance, attendance...anything to do with the job at all. As a matter of fact, he even said that he would re-hire me should I be aquitted in the legal case against me, as I was "A good driver".
I plan on writing a firm rebuttal to their written argument. I believe with the ALJ's decision and the facts of the case I will prevail. I am not at liberty to discuss the charges against me in any way...should that be one of your questions.
What do you think my chances are for affirmation with the Board??




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Jan 08, 2015
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Board appeals are not second chances to relitigate why
by: Chris

But to raise objections to how the hearing officer conducted the hearing .. or misinterpreted how the meaning of the law should of been applied.


Good for you!!

Jan 08, 2015
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I win.
by: Anonymous

Chris,
The Board of Review has affirmed the decision made by the first ALJ !!!! 4 judges signed off on it basically saying there was not a "preponderance of the evidence" to support the employer's claim of misconduct. There was no evidence of a "willful and deliberate violation of the employer's policy or directions". Thanks for your advice and insights.

Jan 08, 2015
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I won!!!!
by: Anonymous

Chris,
I am very happy to report that the Board of Review has AFFIRMED the decision of the first ALJ!!! This was based primarily on the fact that the employer could not prove misconduct by a "preponderance of the evidence".
I wrote a good response to their written argument to the board. I decided not to cite the transcript from the 1st hearing as they had done, but rather center my response on how my conduct did NOT violate the applicable statute. It is effectively over now, as my former employer's only option would be to sue the IDES.....which even they wouldn't do. Let's hope LOL



Nov 26, 2014
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can't be 100% sure he's a lawyer
by: Anonymous

Definitely a law firm. But...they are a part of the "small employer legal services program"...perhaps even an IDES referral.
At any rate they are listed as "attorneys & counselors". Seems to me the guy knows his way around the unemployment system. Ultimately the burden of proving misconduct is on them, and quite frankly, there was none (at least connected with the work, which is all that matters here) so it is hard to prove that there was. I am sure you would agree.
I will find out when I get the transcript if he was introduced as "attorney"....or simply "representative",as I cannot recall.



I'll be waiting to hear the outcome .. almost with bated breath.

Happy Thanksgiving!

Nov 26, 2014
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Good Luck
by: Chris

You won the first/last hearing and that's not easy to do, especially when the employer is represented.

It could be this attorney doesn't do unemployment hearings very often and as one attorney told me .. take us out of our specialty .. and we're like babes in the woods.

Maybe this is the case for your former employer.

Are you sure it was a lawyer and not a cost control non-attorney rep?

I know you don't have to be an attorney to represent if you charge a fee in Illinois, regardless of which side you're representing.

Nov 26, 2014
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Thanks
by: Anonymous

Chris, thanks for the comments/ advice. I think the fact that I won the initial appeal hearing may bode well for my chances with the Board. I will be sure to let you know whether the Referee's decision is affirmed or remanded. Tell you what, I certainly am hoping against all hope that it is the former, because if it turns out to be the latter I will have to repay over $6,000 in benefits I have received since winning my first appeal !!! My attitude at this point is one of cautious optimism. I don't know if I'll feel better or worse once I get the transcript and submit my brief. Wish me luck!!


Nov 26, 2014
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I think you'[re analysis is spot on .. but then I'm not an attorney either
by: Chris

But I'm telling unemployed people you have to think like one if you're going to represent yourself at an unemployment appeal hearing ..

Being incarcerated for some non-work related reason is not definitive proof work misconduct was committed. That is why on more occasions than I care to admit now .. I urged an employer to delay the date of the hearing, while a claimant might of been receiving benefits because a conviction is what increased the strength and ability of an argument trying to connect the crime the employee committed to a real potential of the attitude of the employee harming an employer's best interest.

I.e., truck driver getting a DUI or wreckless driving ticket on their own personal time, or a teacher accused of molestation of a child, but not a student.

Frankly, some jobs inherently have a higher requirement of meeting generally accepted moral standards of conduct than others.

"I also have the feeling that the attorney knows he won't win, but since they are paying him......he is going ahead with it anyway."

That is an attitude not unheard of when working for a cost control company that appeals every time a client's former employee received benefits .. But let's not pretend to be shocked by this sort of thing anymore.

Since I don't know any reason the employer used to fight your benefits with .. except for this last reason that mere incarceration should be enough to prove work related misconduct .. all I can say is you sound like you're pretty on top of things and your assessment of their chances for a remand are running along the same lines I'd run .. not too hopeful, but still cautious.

Nov 26, 2014
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IL statutes
by: Anonymous

Their assertion is that I violated 820 ILCS 405/602A "Misconduct" . Their attorney is asking that the referee's decision be SET ASIDE based upon the fact that I was "discharged for incarceration". This is, in my opinion ( I am not a lawyer)....baseless as far as I am concerned because if you read the statute itself, I did not commit the act of misconduct as stipulated there. I see their appeal as a last desperate act to avoid paying the increase in the UI tax rate. I also have the feeling that the attorney knows he won't win, but since they are paying him......he is going ahead with it anyway. I have ordered a copy of the transcript and I have also been granted a 7 day extension to prepare my letter of affirmation/ rebuttal to the board. My former employer seems to keep changing their mind as to what I was discharged for. So far there are 3 different reasons .... The 1st one was stated on the initial denial, the second one was in my appeal hearing and now the "incarceration" claim from their written argument. I cannot sit idly by and not defend myself against these people!! What do you think???

Nov 25, 2014
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Any idea what grounds the employer is basing their board appeal on?
by: Chris

That you are considering writing an affirmation letter of the hearing officer's decision is a very proactive thing to do.

But, it would also be a rare thing for even an employer to do if it were you appealing.

If it were me, I'd use the Illinois precedents found in the IL Unemployment Insurance Law Handbook to find support for the hearing officer's decision.

Sorry for the mess of links on that page .. (working on it in my spare time.)

Nov 25, 2014
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Legal issues
by: Anonymous

Yes Chris, the case is still pending...but again has absolutely nothing to do with my former job or my former employer in any way, shape or form. I was let go solely on the legal advice of the company attorney. The case ( right now, or in the time since I was charged) did not /does not interfere in any way with my ability to do my job. So, in theory I could still be working while awaiting the outcome of the case, but someone panicked and I was summarily discharged...by phone no less.


Nov 25, 2014
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"I am not at liberty to discuss the charges against me in any way...should that be one of your questions."
by: chris

Then I've got nothing to add, because I was going to ask if the outcome of whatever you were arrested for was still pending, since you didn't tell me what reason the employer used as misconduct when they originally protested your benefits .. and if their reasoning changed at the hearing.

When I got cases like this where the claimant hadn't been convicted, or acquitted yet of any charges (sometimes relevant to an employer's decision to terminate .. other than attendance issues) I requested postponements of unemployment hearings until the matter had been resolved.

At least that was the goal .. because proving misconduct connected to the work can and do sometimes rests on a former employees court conviction.

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