fighting unemployment

System · July 2003

We fired a manager for not performing a vital function of his job. By not making weekly price changes in his department he cost the company a SUBSTANTIAL
amount of money. We only discovered this after we hired a programmer that discovered the lack of activity.
He has a lot of experience in his line of work and there is no way he can HONESTLY claim that he did not know he had to make the changes.
On top of that he was a belligerent,abusive,tantrum throwing creep. I had implored management for months to document his behavior( as I do with all disciplinary complaints, procedures etc. and I am routinely ignored)but they did'nt.
Now he is filing for unemployment and the Boss wants me to fight it tooth and nail. Of course I have no documentation except the reports that show his lack of performance and a document that I wrote stating the reason that we fired him(gross negligence that costs the company money which is in our policy manual for which he signed an acknowledgement) and that upon termination he called the programmer a sexist slur and the finance manager a religious slur.
What else can I do to fight the claim? I have only gone to one appeal and in that case the ex ee didn't show. I can produce signed testaments from colleagues that prove he did not show for required meetings, also in the policy manual. Oh yeah, he also pulled the race card as he was calling people every foul name in the book.

HR in Okla · July 2003

Laws vary from state to state, but I've found the best strategy in Okla. is to focus on policy violation. If you can show, hopefully with an signed acknowledgement form, that he had received and was responsible for adhereing to certain policies, and have documentation of his violation of those policies, Okla. will usually deny unemployment. They consider a violation of the employer's policies, especially something that is damaging to business, "misconduct." If you can show previous warnings, and continued violation, then termination, that's the best case scenario for winning.

I had one denial appealed recently. A nurse walked off at the beginning of a shift, when she was supposed to relieve someone who'd already worked 12 hours. It was a night with bad weather and the other staff was running late, (but did show up soon.) She got mad, said "I'm not working short-staffed." and walked out. We called it job abandonment. I had all kinds of documentation from people who heard her statements. But she whined to the appeals officer about how sick she was and that's why she left. He bought her story and ruled that "leaving because you are sick" isn't reason to deny unemployment. He wouldn't admit any of the documentation I had into the record. Sometimes you just can't win.

Crout · July 2003

Okla. is probably a different animal than PA, especially Philly, but this still looks like he was fired for performance issues, so I think you guys will probably lose. You might want to prep the CEO now for that outcome.

HR in Okla · July 2003

Performance issues are the same in Okla. Poor performance isn't enough to deny Unemployment, that's why the only chance is to focus on policy violation.

ray a · July 2003

Same in NY. Since none of his previous "sins" were documented the UI board may say you were legally right to terminate, but you didn't give him adequate notice or warning to improve and will grant him UI. Happened to me earlier this year. But, it sounds like you have put together a good case so far.

Parabeagle · July 2003

As others have said, each state is different. In Oregon, the scenario you present would probably be enough to deny unemployment, since not performing an essential function of the position resulting in a substantial monetary loss would be considered a "willful disregard of the employer's best interests." I'd feel very comfortable going to an appeal with the documentation you have. Good luck!

JulieP · July 2003

Again, each state is different, but in North Carolina, you can't admit anything as evidence unless the person who documented, heard, saw, etc. it is there. You may want to bring the programmer with you to explain how they found the lack of activity. I wouldn't mention the other comments he made as he was leaving because they had nothing to do with you making your decision. But, if you were to bring them up, you would need to have the witnesses there to tell the adjudicator about it.

Good luck!

Crout · July 2003

>>He has a lot of experience in his line of work and there is no way he
>can HONESTLY claim that he did not know he had to make the changes.

So i guess he'll probably be DISHONEST and claim that he didn't know how to make the changes, UNLESS you can pull out a signed document proving otherwise.

>On top of that he was a belligerent,abusive,tantrum throwing creep. I
>had implored management for months to document his behavior( as I do
>with all disciplinary complaints, procedures etc. and I am routinely
>ignored)but they did'nt.

If they didn't document it then it didn't happen.

I can produce signed
>testaments from colleagues that prove he did not show for required
>meetings, also in the policy manual.

Was he disciplined for these violations? Were there meetings addressing these issues? Is there documentation to prove all of this? If he was never addressed about his attendance at so-called mandatory meetings, that means that tacit approval for his absences was given by his supervisors. I don't think you have a very good case here at all. My advice would be to use this loss as a springboard to educate the Boss on the value of having a strong HR office, empowered to compel managers to utilize sound practices.

System · July 2003

I agree with you crout. The best thing that will come out of this is management finally realising that we need to DOCUMENT!!!!!!
In our discussions about this the boss has exhibited complete shock that UI would accept him. He waves the reports around and goes "but...but LOOK at these!!"
He has offered to accompany me to the hearing and at first I said no that we would be better off with unbiased witnesses to his behavior. Now I'm thinking that him going would be an eyeopener for him. What do you think?

HR in Okla · July 2003

My experience is the same as JulieP in NC. Because the witnesses were not at the hearing, the officer wouldn't admit the statements from them. Take the people involved with you.

Why is it so hard to get people to document!

scottorr · July 2003

My question is why is unemployment so easy to get? I's not pleasant to be unemployed but there is a good reason for the term unemployment should not be granted. Maybe your state's UI office will turn out like NY's, broke! I have only won one case in my 10 years of experience. We had an employee no call no show for three days. I indicated that this was a policy violation and showed signed documents that the employee had signed stating that she had read our handbook which clearly stated that this was a policy violation. We won!

Crout · July 2003

>He has offered to accompany me to the hearing and at first I said no
>that we would be better off with unbiased witnesses to his behavior.
>Now I'm thinking that him going would be an eyeopener for him. What do
>you think?

Don is correct. Your attendance at the hearing will do nothing to change the outcome. Your former EE will most likely receive UC benefits. However, I like the idea of taking the Boss down there anyway, if for no other reason than to give him an education as to why he needs a strong HR department. If you think you'll get some milage out of it then do it. Good luck.

Don D · July 2003

I have lost one appeal in ten years and have participated in them in 48 states. I too feel it will be a no-win unless you can produce hard, documented evidence from the file. As others have said, in almost every state, showing that you feel the employee knew what to do and didn't meet your expectations won't win for you. All he has to say is he tried his best to understand your requirements but just never could get a grip on what it took to please the company. (violins please). Without the documentation, I don't even know that I'd show up unless I was told to. I would be more productive staying at the office and dealing with the present disciplinary issue of supervisors not documenting. It's not that it's that easy to draw unemployment. It's just that so many employers do not address documentation and discipline adequately to satisfy the UI system. California is the exception. That's where I lost one. A driver abandoned an 18 wheeler with a 90,000 dollar refrigerated cigaret load on board, walked away from it and went home with no contact with the company. We paid a satellite system to locate it, had a private firm secure it and had to send a driver for it. CA allowed the claim when the driver said she felt she needed to be at home with her child who was having problems at school.

HR in Okla · July 2003

Gosh, Don. Sounds like more violins were definitely in order. That's worse than my nurse abandoning 24 Alzheimer's patients!

Leslie · July 2003

Boy, you folks are in tough states. AZ is like Beagles OR, if I prove "willful disregard of the employer's best interests" I win. Costing the company substantial amounts of money with the documentation to prove it sounds good to me deez - but MA may be a whole different ball game.

LindaS · July 2003

In WI you probably wouldn't win based on the information you provided in your post. You need to pick your battles and it doesn't sound like this is one you will win (at least based on my experience in WI). I would concentrate on training managers on the importance of documentation!

Don D · July 2003

Arizona's 'willful disregard' is the rough equivalent of other states' 'gross negligence' or 'misconduct'. None of them win for the claimant. Someone saying he tried but couldn't master a task or just didn't perform up to expectations will likely win in most every state. I think in all states you will have to show evidence of having given the ee training and have documented evidence that they knew a policy or procedural requirement, hopefully signed for it and had an opportunity to carry it out. Most claimants who so choose can be mighty loose with the truth when the hearing officer asks them if they ever heard of that policy or if you ever told them to do this or that.

Human Resources Manager · July 2003

Even proving "miscounduct" isn't enough to win a UI appeal in MN. Here not only do we have to prove employee misconduct, but we also have to prove the misconduct was "willful." This is how a driver who was terminated for rear-ending a school bus with a company truck (avoidable accident) got to draw unemployment. Sometimes I just want to chuck it all and become a hermit! #-o

HRQ · July 2003

Leslie, you mentioned "willful disregard" in AZ. Here's an appeal I lost recently, which still grinds me;

Employee had CHRONIC attendance problems: final warning in December after three months of 50+ tardies. Then 40+ more tardies. Then she calls off work three days in a row because she doesn't have a ride. We termed her in April.

We lost the appeal because it "wasn't her fault" that her ride couldn't bring her in, therefore no "willful disregard". It was also in her defense that she called in according to policy.

If I had to do it again, I would term her AGAIN, just much more quickly. I did give her supervisor heck for not notifying me immediately upon the next infraction after the final warning. (vs. letting it continue for four more months...)

As we rode the elevator down to the lobby after the hearing, the employee asked me if she was eligible for rehire because she really liked working for us. (After allowing 90+ tardies in six months, I can see why!) I told her to get a job elsewhere, achieve a few years of verifiable good attendance, then apply and we'll consider it.

There's my vent for the day.

Leslie · July 2003

The one that always burns me in AZ is perfect progressive discipline documentation of attendance, and if the ex-employee can prove that the final warning was for absences due to an illness beyond their control, they get unemployment! 20 absences in the last six months, and our experience rating gets charged. DRIVES ME NUTS!!! xx(

lynn2008 · August 2003

Kentucky is like most others, we must prove misconduct. After 20+ years of wins and losses it is a good idean to take witnesses (without these in KY you will lose). To help on the attendance issue, I have been successful in pointing out the eligibility or lack there of, of FMLA for the absences. In KY, the ALJ's are supposed to report violations of FMLA to the Wage and Hour folks, so they are familiar with the concept.

I did lose a case this year where an employee "relieved themselves" on some barrels in the production area, and I had facts, footprints that matched his shoes, etc., and the ALJ and appeals said I should have had a "rule" about not urinating on the shop floor. Go figure!

fighting unemployment

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