UI and Harassment
HRCalico
582 Posts
I'm trying to be brief on details, I promise.
A former employee had been sort of on the ropes for a while due to attendance and attitude problems. She finally submitted a written resignation and 2 weeks notice. She did not have another job lined up, and has had difficulty finding another job. She filed for unemployment, I completed the form noting a voluntary termination. This week, I received a notice of appeal, based on the voluntary quitting employment. On its face, it seems pretty cut and dried, right? And I think it is. However, this is where potentially alleged harassment comes in.
I was working with her former supervisor to complete a reference check, one question was regarding relationship with management. The supervisor said offhand that former employee had felt the president was discriminating against her because she was a woman. I said that she had never made a complaint to me, and he said it was because she thought I had it in for her, too. In my mind, I immediately went to the comment section of her review, completed a week and a half before she submitted notice, where she made reference to the "glass ceiling" that exists here. At the time, I didn't think much of it to be honest, because I didn't know what she meant.
During the time she was working here, there were two occasions where the dept manager position came available. I am not certain if she ever put in for that, but she was not selected due to aforementioned attendance and attitude problems (The manager when she hired in was female, she retired, we hired a male, fired him, hired another male). During my reign, she did put in for a newly-created assistant manager position which she did not get for the aforementioned reasons. While the person we did hire for asst mgr is male, he also was a manager for 20 years at another plant.
So, after this long and winding story, do I need to worry about anything at the UI hearing? Or do I only need to worry if I get a letter from the EEOC in the mail? I never investigated anything because I never felt I received a complaint. In hindsight, I perhaps should have taken the review comments as a complaint, but she also was slinging mud at me because she got a written warning for attendance near the same time that she said was "improperly initiated". (It wasn't.)
PS - I have only had to sit in on one UI hearing, and it was three years ago at a previous job, so I don't remember much about it.
A former employee had been sort of on the ropes for a while due to attendance and attitude problems. She finally submitted a written resignation and 2 weeks notice. She did not have another job lined up, and has had difficulty finding another job. She filed for unemployment, I completed the form noting a voluntary termination. This week, I received a notice of appeal, based on the voluntary quitting employment. On its face, it seems pretty cut and dried, right? And I think it is. However, this is where potentially alleged harassment comes in.
I was working with her former supervisor to complete a reference check, one question was regarding relationship with management. The supervisor said offhand that former employee had felt the president was discriminating against her because she was a woman. I said that she had never made a complaint to me, and he said it was because she thought I had it in for her, too. In my mind, I immediately went to the comment section of her review, completed a week and a half before she submitted notice, where she made reference to the "glass ceiling" that exists here. At the time, I didn't think much of it to be honest, because I didn't know what she meant.
During the time she was working here, there were two occasions where the dept manager position came available. I am not certain if she ever put in for that, but she was not selected due to aforementioned attendance and attitude problems (The manager when she hired in was female, she retired, we hired a male, fired him, hired another male). During my reign, she did put in for a newly-created assistant manager position which she did not get for the aforementioned reasons. While the person we did hire for asst mgr is male, he also was a manager for 20 years at another plant.
So, after this long and winding story, do I need to worry about anything at the UI hearing? Or do I only need to worry if I get a letter from the EEOC in the mail? I never investigated anything because I never felt I received a complaint. In hindsight, I perhaps should have taken the review comments as a complaint, but she also was slinging mud at me because she got a written warning for attendance near the same time that she said was "improperly initiated". (It wasn't.)
PS - I have only had to sit in on one UI hearing, and it was three years ago at a previous job, so I don't remember much about it.
Comments
Part of this documentation would include the EEs signed acknowledgement of receipt of handbook.
Also, just in case, have your documents together with respect to the improper initiation comments related to the written warning.
Then let the chips fall where they may.
At the time she made her feelings known to the supervisor mentioned above, the company was effectively on notice that something was wrong and inquiries should have been started.
Whether or not introducing this "new information" in the context of a UI hearing is going to benefit her is an open question. I recently had a UI appeal in which the claimant introduced new reasons for her resignation, and it didn't fly with the administrative judge.
Our "company attorney" is retained out of California - we use the same one that our former parent company uses. Unfortunately, they know little about how the world works outside of CA. I will be attending the hearing, and I guess I'll get together everything I can think of as relevant to submit for our side.
edit: No reason given in letter. Just "last day will be X."
Thanks!
In GA, the appeal notice lists the issues to be decided. One of those being "whether the claimant left their most recent employer with good cause and would be entitled to benefits."
I requested a copy of the ee's response to find out where he was coming from and prepared my defense based on that. He attempted to make allegations against the supervisor and the hearing officer cut him off.
As Livindonsouth said, most of what you are worried about probably isn't there and would not be allowed and they shouldn't let the ee go off on a tangent.
I'm interested in what she said in requesting an appeal. Good luck!
If she felt she was being discriminated against, she should have filed a complaint. Even if she felt like you were "out to get her" then she should have gone over you, around you, or to someone she trusted.
If you don't know about her complaint, you didn't have the opportunity to investigate and/or resolve it, therefore the employee quitting b/c of discrimination won't be an effective argument on her behalf if no one knew of the discrimination.
Do not mention the comments the manager made. If it's not in writing, it doesn't exist.
In the remote chance that discrimination was a part of her originally filed claim and is part of the record, when it's the employer turn to examine the claimant, the only questions that need be asked of the claimant (each only requiring a yes or no answer) are: (1) The document that I introduce into evidence now, is this your signature acklowledging receipt of a copy of ABC's employee handbook? (2) In the handbook, that you acknowledge receipt of, on page eleven, now introduced into evidence, are you aware of ABC's complaint procedure and policy of non-discrimination? (3) Did you follow that procedure or at any time report to Human Resources that you were discriminated against in employment? (4) When you resigned your job, did you report to Human Resources or management at any level that you were quitting your job because you were unlawfully discriminated against? I think the answers are Yes, Yes, No, No, which should determine the outcome of the hearing.
At the hearing we present the relevant Company policies and acknowledgements, as relevant. In the case of a voluntary quit, we try to get a written letter of resignation that can be presented at the hearing, and at the hearing, deal with the employment termination as an establishment of the "voluntary quit" status. If, during that process, discrimination issues arise, under your circumstances, we may have requested a prior legal evaluation of our exposure and we might elect to drop our contest of the appeal in order to preserve our defense against a potential discrimination complaint.
>If, during that process, discrimination issues
>arise, under your circumstances, we may have
>requested a prior legal evaluation of our
>exposure and we might elect to drop our contest
>of the appeal in order to preserve our defense
>against a potential discrimination complaint.
Following LivingdonSouth' "keep it simple, Stupid" (KISS) is the better course of action. Employee Handbook, specific pages of the handbook pertaining to attendance and the letter of "voluntary quit"/resignation, and the official final document of termination is all that is needed to be presented on the appeal hearing. I would not take anything else in preparation for the what ifs.
PORK
In case anyone is curious, our Dispute Resolution policy indicates "employees are encouraged to discuss any issue informally with the person to whom they report. If this does not resolve the problem, the next step is appeal in writing to the President."
Since she didn't attempt to follow proper channels (writing to the President), I think that will work in our favor.
I'll still bet you a dollar to a donut that this is not part of the appeal. You mentioned the appeals tribunal. In this state, that indicates it has already run through the appeal hearing, was affirmed and she appealed to the higher level, which is typically a non-hearing rubber stamp. Maybe your setup is different.
Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
As far as I know (based on the paperwork received), this is the first level of the appeal (but it might also be first and last). I'd look it up but the NE DOL web page is down or something.
The rest of our policy says if an employee is not satisfied with the President's response, they have the option of going to an arbitrator (I think - I read it quickly two hours ago, and we've never used it). At this point, I feel pretty good about our "defense" so to speak.
Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
I believe the decision was based on incomplete information obtained during a very brief phone interview. The questions were focused on the day I gave my resignation and not the complete events and instances of mistreatment and personal attacks that lead up to my giving a letter of resignation. For this reason, I am requesting an appeal so that the complete information can be heard and recorded.
So, I'm going to over-kill and submit her resignation letter, her most recent review (which was trying to be positive and which gave her a raise), a copy of our dispute resolution policy from the handbook, her signed acknowledgement sheet from said handbook, and her attendance record. Not sure how far back I'll go, I'd have to pull time cards for more than 1.5 years.
I have requested her immediate supervisor and our president to sit in on the call with me. Any other suggestions?
The hearing was yesterday afternoon - it went an HOUR AND A HALF. Her take was that we forced her to make a moral and ethical decision last November when we told her to re-test a resin that had went out of shelf-life (expired). She then was instructed on her review in May to develop and implement a procedure for re-testing resins. She felt that if she did not do that, she would be fired, and if she did do it, she would be breaking laws and acting unethically.
We re-test resins all the time. The spec that she was working under did not say the resin could be re-tested, but it did not say it couldn't. Had we re-tested it, we would have presented the results to the customer. We didn't re-test it.
Oh, she also said I gave her a written warning for tardies in retaliation for comments she made on her review. No really, she was actually tardy. The timecard was submitted as evidence.
I felt at a disadvantage because we didn't really know what path she was going to take and I wasn't prepared for that path. Here are my suggestions for someone who is going into an unemployment hearing without an attorney:
1) Write out the questions you want to ask all witnesses. If you are unsure of what the former employee's testimony is going to be (as I was), have your witnesses write out questions as the testimony is occurring.
2) Make notes of EVERYTHING you want to address, and be organized. I indicated that I had spoken with her supervisor about the written warning for attendance, but did not actually say that I would never have issued the warning in retaliation. (She was late!) I had scrawled it down, but it got lost in some other scrawlings.
3) Submit everything you think you might need for documentation. If they don't have it, it doesn't exist. I think I only asked that about half my documents actually be introduced as evidence.
4) Use a good phone! The judge actually asked us to switch phones because our speakerphone blinked out several times. We hadn't known of any problems before, but I don't think it reflected very well on us.
We should get a decision in a couple of weeks. I'm just glad it's over.
There's never a table. The referee is behind a government desk, so I just line everything up at my feet in neat stacks. Drives a claimant mad.
Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
She can appeal within 30 days, but I think our case would only be stronger in that situation because we now know her angle. And, based on that angle, I don't think we'll be hearing from the EEOC, but if we do, I'm ready for that, too!
Thank you very much to all who weighed in. I really appreciated the suggestions and support.