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Unemployment Appeal Hearing Approaching

by Kait
(North Carolina)

I was fired on July 23, 2010.

We were approached on break by other co-workers saying
that we were on downtime (I worked at a lab, downtime meaning no specimens to process). On downtime we're allowed to stay in the break room or go to the parking lot to our cars. Well no one was in a rush to get back to work for that reason. A girl volunteered to go clock us all back in and I cleaned up our trash. After clocking us back in, they left to go to Sheetz. I actually returned to the lab which was a minute or so of her clocking us in. When I returned to the lab, there was in fact work to do and I immediately went to my station and processed a shipment by myself. 30 Minutes later I was called back to the office and reprimanded. I had never been written up or disciplined before. I didn't even know what I was doing was wrong. My prior jobs I had to manually write down my time sheets and since they were both small businesses it was ok for my boss, or co-worker to write down our times for us. When I went to this larger corporation, I had to use a time card to clock in and that took some getting used to. But even so, it was common to see other co-workers clock each other in and out of breaks. Some would leave for break and go to McDonald's or whatever and then come back in and clock out for lunch. That I could see and completely understand being grounds for termination. But in my situation, granted someone else clocked me back in, I went immediately back to work.

I filed for unemployment benefits the following week of my termination and I just now heard back from the NCESC yesterday claiming that my benefits were denied. I filed an appeal yesterday as well. Is there any chances for me to win. I've tried to contact former co-workers as witnesses and I really dont want to involve them because I fear for their own employment security.
Here's what I've got going for me so far (atleast I hope it goes in my favor)

1. Never written up or disciplined prior.
2. "Everyone did it" I can provide witnesses to that
3. The manager admitted to the above statement, that she knew people did it and I have witnesses to corrobate her statement. She also confronted me and one of the other girls that was clocked in, in front of the person who told on us which made it very tense and intimidating.
4. In the copy of the policy handbook that was given to me upon my hire, it does have a policy regarding (which I was made aware of in the confrontation) falsifying time and it says that it can result in disciplinary action UP to termination. As I had no prior infractions, it would have been appropriate for me to be placed on probation.
5. My team leader tried to reason with the supervisor about the situation because I returned to work and didn't go to Sheetz. She also said its no different then the people who chose not to check to see if there was work but chose to go to the parking lot instead to smoke, talk etc. That if I'm going to be fired, everyone who was on "downtime" was falsifying time.
6. Another co-worker was also found to be falsifying time on numerous occasions the day after I made my mistake and she was only written up.
7. As I
mentioned before there is no documentation showing that I was written up even for the event in which I got fired. I also didn't sign any documents acknowledging that I was fired for that reason or any reason at all or that I was fired in general. Plus there was no one to witness my supervisor firing me.
8. The night we got in trouble, our supervisor told us she was going to hand it over to HR, that it was completely out of her hands, for us to expect a call within the next day or so. I called HR myself twice and left messages both times asking them to please return my calls. We walk in that Friday evening and get fired halfway through our shift. In the meeting our supervisor said HR handed down the decision to her and that was we were all to be terminated. She did this on an individual basis. I emailed HR and brought forth some of the points and some other incidents that needed to be investigated. I also asked if my employment could be reinstated being that I had never been written up and so on. She "tried" to talk to someone else and called me back and said no that I couldn't be reinstated. I then asked her why didn't I hear from HR prior to us getting fired so I could have atleast plead my case. She then informed me HR had nothing to do with the decision that it was solely up to my supervisors discretion.

I'm not sure what exactly if any of the above will help me. But I'd like some thoughts for sure as I prepare for my appeal. Thank You!

Hi Kait,

Interestingly, the more information someone provides .. the more questions I have.

Quickly, I will tell you that I first thought to simply use the approach of "the policy was not uniformly enforced" since you said you could corroborate this through witnesses, but then I noticed that you weren't the only one fired for this incident.

When a policy includes "up to and including termination" it is clearly providing for discretionary decisions by the employer". And since we are all at will employees, this is perfectly legal and acceptable, regardless of what "really" happened.

That will be your job at the hearing .. to bring out what "really happened".

So, use your witnesses (possibly, the others that were fired) to corroborate that the policy was arbitrarily enforced.

It sounds like you might have been fairly new since you also said "you didn't know this was wrong".

Try to convince the hearing officer that it was a "one time inadvertent error made in good faith" since you have no prior written warnings and possibly you weren't aware you'd get fired because it was SOP even as admitted by the supervisor.

Show that the employer had and did use their discretion to overlook others violating this policy to support this.

And read the relevant North Carolina Unemployment Precedent Decisions to try to absorb how they make decisions.

My guess is HR didn't have to get too involved because it is a clear violation of a rule. Your argument can't really be focused on the fact that you didn't do this, but that the employer doesn't have clear enforcement or guidelines as to the consequences for the rule .. and even though they did have a written rule and consequence the enforcement by the employer was lackadasical .. therefore, the inadvertent mistake was made because of the employer.

I just hope you understand the value of witnesses and documentation to support all this.

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Oct 29, 2012
NC ESC Kangaroo Court
by: Anonymous

I too am dealing with a wrongful termination. NC Employment Security Commission is a kangaroo court in my evaluation. I did not engage a lawyer because of the cost, short time, and clearness of the case. Big mistake. ESC sided with the employer and listed about 10 "Facts" - of which all but two were outrightly false. Most of them had been clearly stated as false during the hearing; but, the hearing seemed to be more of a formality and nothing actually discussed to have been considered. The "referee" continually tried to make me answer questions as "yes or no" after stating the question in a way to make me look wrong if I choose either. When I tried to give an accurate answer, she cut me off every time. Furthermore, she interrupted me and told me I could not read anything during the hearing as I tried to read the document which covered the [non-existent] policy for which I was fired. At the end, she said I had about 3 minutes for testimony although I had rehearsed and knew it took 20 minutes reading quickly. I should have gone through everything but thought the case was so obvious at that point that I did not.
In Short, NC ESC exists solely to uphold the company decision. If you want justice, you had better get a lawyer. I have but am told I cannot introduce any more evidence... maybe they will allow the company employee handbook though. LOL. Although its not actually funny. There really is no value in a kangaroo court. Now I have to sue in real court and it will cost me and the employer more than just paying the 4 weeks of unemployment. Yes, at this point, its more a matter of not being bullied than the money.

It is very troubling to me to hear these stories about hearings where the person in charge conducting the hearing is not doing what they are mandated to do.

They are mandated to be impartial.

Along with all the other things folks aren't usually prepared for when they get to the hearing, impartiality of the one in charge is why my recommendation is to always be represented.

And from what you've told me above it sounds like you might not of submitted the employers rule into evidence prior to the hearing .. and my advice is if you feel like you are over your head, or don't have enough time .. or finally understand what evidence or testimony you need .. during a hearing PUT A REQUEST FOR CONTINUANCE ON THE RECORD.

Cite the reason for it .. even if it's as simple as saying .. I believe I am in over my head and wish to request a continuance to seek representation!!

Representation whether you read it or not .. is your right and protecting your right to due process during that hearing is what hearing reps and lawyers do for their clients at unemployment hearings .. whether the client is the employer or, the employee.

This is how you control the kangaroo .. making use of the legal process and it's rules of procedure.

Sep 25, 2010
Response to post
by: Kait

Thank you so much for your quick response. No I was not the only one fired for this. There was 3 of us total that got fired for "falsifying time" that night. The girl who clocked us back in went outside to smoke, the other girl left to go to Sheetz and I returned to work. Being that we all falsified time but handled it differently, she still didn't see it as 3 seperate cases, she said whatever happened to one of us, would happen to all of us. I was new, I had only worked their about 5 months but like I said, I saw employees do this daily multiple times. I understand the value of witnesses and have already tried to contact the other 2 girls that were fired. I also know 2 other individuals that would also be of great benefit to my case but I fear they wont help out because it might jeopardize their job. I can validate their fears with conversations I've had via chat, text messages etc. about a hostile work environment so to speak, that if the potentially try to help me they might lose their jobs. I have the emails that I sent HR, copies of the chat I had about me asking witnesses to help they might get in trouble, and other general conversations through text and so forth pertaining to my incident and an incident that I had reported that may have something to do with it. I've also emailed my lawyer, granted I don't have the funds to retain a lawyer on an ongoing basis, I took advice from this website and figured I could use a free consultation or pay atleast the charges for an hour or so and get guidance and direction on how best to handle this. I fear that my termination was part my error but also part retaliation for an incident I reported because weeks prior to my incident there were several incidents in where I was harassed (my personal items went missing, someone forged my employee number on a specimen that I didn't process and it was a priority specimen etc) I told my supervisor but she said she doubt that the individuals in questions would do those things against me because of what they thought I had told. I also had numerous other personal dilemnas all of which I can provide evidence for being under a lot of stress. I truly just had a lapse in judgement that night and let all of these external factors get to me. And I gave them exactly what they wanted, grounds for firing. The other two girls had already been written up but they wouldn't treat us seperately. I even informed my team leader that I thought the other employees would think twice before they did it again, but it was the complete opposite, like nothing was going to happen to them. My team leader said she told my supervisor and all she did was shake her head. So there isn't equal discipline for sure. Any other suggestions. I'm going to look at that link that you provided. Again thank you!!


You should try to get them to be a witness for you to corroborate what the employer condoned and that the policy was arbitrarily enforced.

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