Getting Fired - Page 4

[Potty Diva]

Thanks for your response Cath.

The reprimand doesn't have to be signed or witnessed and an employee does not even have to be aware that there is anything negative in their file.

I was never verbally or orally reprimanded. Not once since I started in May. The caseworker said many times employers fabricate something and then put it in your file AFTER you have left, particularly in cases where an employee is seeking benefits. This is what she said and meant- trust me I was thorough in my questioning of it. I was floored.

I have an employee manual. I have read it and there isn't anything regarding unemployment benefits should I be unable to work the hours originally hired.

NC is a "no hire" state and employers don't have to have a reason for firing you or letting you go. I could walk in in polka dot pants and my boss could simply say, "things are not working out." and let me go. He does not need to give an explanation.

It would then be my responsibility to prove that he fired me because of discrimination- this isn't the case here.

The case for me is that I was not fired and he maintained this until my last day.

He said we love your work, call me after the semester, thanks so much and take care.

So, yeah, my word against his.

The crazy thing, is that the employment security commission took his word over mine. Bizarro!

[tangozulu]

Sorry you are still going through this

[Potty Diva]

Well, that which doesn't kill us can only make us stronger- right?

I called the claims department just to verify and on top of what I have already learned- *I* have to prove I WASN'T discharged for misconduct

How in the world am I going to do that?

[CathMac]

Originally Posted by Potty Diva

...

The reprimand doesn't have to be signed or witnessed and an employee does not even have to be aware that there is anything negative in their file.

I was never verbally or orally reprimanded. Not once since I started in May. The caseworker said many times employers fabricate something and then put it in your file AFTER you have left, particularly in cases where an employee is seeking benefits. This is what she said and meant- trust me I was thorough in my questioning of it. I was floored.

I have an employee manual. I have read it and there isn't anything regarding unemployment benefits should I be unable to work the hours originally hired.
...
The crazy thing, is that the employment security commission took his word over mine. Bizarro!

Do you know for sure that the caseworker has "taken his word". Or is she just trying to finesse you into giving into what she would like you to believe is the inevitable, to make her job easier? Sorry to sound cynical but that's how beaurocracy works sometimes, it's an efficiency thing. Finding a down and dirty way to fast track your case would probably free up her time to deal with the more contentious claimants, deserving or not.

Also, I'm confused. Is the caseworker telling you that you were terminated because your last schedule was different than the one you started with? Or because you were allegedly not available for the current &/or proposed schedule they wanted? The first scenario might make sense if you hadn't successfully re-negotiated your schedule as their needs and your needs changed. If memory serves correctly there had been some mutually agreed upon interim schedule changes. If you can document that then I don't see the problem.

The first scenario might arguably be a disciplinary issue, possibly even a firing offense especially if they can show that it was an issue from their perspective and they had warned or reprimanded you. Otherwise, it seems to me it is at worst a grey area, especially if you can show that you had successfully negotiated these issues to your mutual satisfaction in the past. Look at it this way, flexibility cuts both ways. Maybe you weren't available on Tuesdays for one semester but you'd go in any time they called or you changed from Wednesdays to Thursdays for them at another point.

This seems very different to me from cut and dried issues such as Tardiness, Absenteeism, etc. Even in cases such as that they need to be somewhat consistent, at least for people performing similar jobs ... but arguably across the board. Which is why it is generally recommended that employers put disciplinary issues in writing. The expression in my business is "if it it's not in writing, it didn't happen". Otherwise it creates the impression of favoritism or worse.

Yes employers can engage in revisionism and try to document their file "after the fact" which is "written proof" of a sort, but relatively speaking that kind of "proof" is weak. Especially if their internal policies require them to have you acknowledge (if not agree to) the reprimand in writing (by your initials or signature) then it may undermine their credibility and get you off the 50 yard line "swearing contest". Unless the caseworker is subtly implying that the employer usually gets the benefit of the doubt. That may be what happens in "practice" but in "principle" their word is no more persuasive than yours. What you need is one or two "tie-breakers".

Which is why you should to go back to anything you have in writing. And why you need to put a time line together documenting any mutually agreed upon schedule changes.

BTW, if the Employee Handbook doesn't outline all or even some of the disciplinary procedures in writing but you know of some instances where people were written up then that could help establish a "pattern and practice".

Also, if you have the time and feel so inclined you may want to go to your state government's website for info on the policies and procedures for unemployment benefits. You may even see the "findings" of one or two published cases. If you are lucky it may give you a better sense of how these things play out in the real world.

One more thing, many attorneys offer free consultations. I realize this isn't a federal case and I'm not encouraging you to turn it into one but it never hurts to get professional advice.

Good luck.
~Cath

[CathMac]

Oops. Double post.

Oops. Double post.
~Cath

[Rani]

So sorry mama....

As to proving, do you get performance reviews? If so, you can show that they were telling you that your performance was good.

FWIW, I learned at a previous job that they try to wiggle out not only because of the cost of paying the state for your unemplyment benefits, the percentage they pay gets higher the more benefits they have to pay. Its to discourage employers to fire people for no reason....but it really just makes them want to weasle out because their percentages go up....

Maybe call the old boss that was clearly happy and ask him to go to bat for you?

[CathMac]

NAK.
It looks like you are in North Carolina. I did a little online research.

Links below. Note especially the case I dug up. It is the only one I found somewhat similar to your situation so it may not be directly applicable but it does seem to indicate that in the absence of written disciplinary procedures that the benefit of the doubt is given to the employee. It also implies that they need to follow their procedures, which should be obvious.

If I get another chance I'll see if I can find something more specific on spoken versus written warnings in case they do have a detailed written disciplinary procedure.

North Carolina Unemployment Insurance Benefits http://swz.salary.com/salarywizard/l...oyment_NC.html
Eligibility for North Carolina Unemployment Benefits:You must be determined to be unemployed through no fault of your own as defined under North Carolina law.

For complete details see the Unemployment Insurance section of the “Employment Security Commission of North Carolina”

http://www.ncesc.com/

Here are some tips for filing a correct and complete unemployment claim:

Be prepared to show that your unemployment is not your fault. Keep handy any written notification of your layoff, termination, or severance that you may have received.


BRAD BOYLAND, Petitioner, v. SOUTHERN STRUCTURES, INC. and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RespondentsNO. COA04-1235. Filed: 2 August 2005
http://www.aoc.state.nc.us/www/publi...5/041235-1.htm

Id. Section 96-14(2a) is “to be strictly construed in favor of the claimant, and the employer has the burden of proving that the claimant is disqualified.” Featherston, 96 N.C. App. at 104, 384 S.E.2d at 308 (citing Barnes v. The Singer Co., 324 N.C. 213, 376 S.E.2d 756 (1989)). The essence of the statute is that if an employer establishes a reasonable job policy to which an employeecan conform, failure to conform constitutes substantial fault. Lindsey v. Qualex, Inc., 103 N.C. App. 585, 406 S.E.2d 609 (1991). In the present case, the referee found that “[t]he employer does not have an employee handbook nor does she have a list of company rules and regulations.” Where there is no formal set of rules to use as a reference, we rely on the Commission's findings as to the employer's policy. See Doyle v. Southeastern Glass Laminates, 104 N.C. App. 326, 333, 409 S.E.2d 732, 735-36 (1991) (Cozort, J., dissenting), rev'd per curiam, 331 N.C. 748, 417 S.E.2d 236 (1992).
****To establish that an employee is substantially at fault for minor infractions, the employer must demonstrate that the employee violated a rule after having been warned by the employer. Featherston, 96 N.C. App. at 104, 384 S.E.2d at 308. Therefore, to support a conclusion of law that an employee is substantially at fault for minor rule infractions, ESC must enter specific findings of fact that (1) the employer warned the employee that his actions were in violation of the rules, and (2) the employee violated the rules again after having been warned.
...
Typically, in substantial fault cases there is a point system for rule violations, see Lindsey, or a system of written warnings for rule violations, see Davis and Doyle. The employee is usually notified that he will be discharged upon losing all of his points, or once he has accumulated a certain number of written warnings. However, in the present case, the Commission's findings of fact do not indicate that the employer used a formal point system or written warning system to reprimand its employees.
...
Finding of fact 13 indicates that employer asked petitioner several times to submit log notes after petitioner failed to do so. However, it is not clear that those requests constituted a warning. As noted supra, the substantial fault statute is to be strictly construed in the employee's favor. In cases such as this, where the employer does not have an employee handbook, a list of rules and regulations, or a formal system of reprimand, it is especially important to construe the statute in the employee's favor because the rules and method of reprimand are at the complete discretion of the employee's supervisor.

HTH,
~Cath

[VisionaryMom]

I've been reading this thread with interest. I have a question, though. If NC is a hire and fire state, then do they have to prove misconduct? Is this only for the sake of the unemployment benefits that you're going through this? Is unemployment null if you were fired for misconduct? Could they represent your "unwillingness" to change your school schedule as misconduct?

[Potty Diva]

Cath- HOLY COW WOMAN!!!
Thanks! I've been looking for info when I can but haven't been able to get where you have- you rock!

Brandi- yes, my schedule could be seen as misconduct- BUT, I have emails showing that I contacted him as early as August and continued to do so up until my final email that I wrote to my ad manager and copied to the publisher. Only then did I get a "meeting" to discuss the situation. So I did not spring this on them, I notified them well in advance.

[CathMac]

Originally Posted by Potty Diva

Cath- HOLY COW WOMAN!!!
Thanks! I've been looking for info when I can but haven't been able to get where you have- you rock!

Brandi- yes, my schedule could be seen as misconduct- BUT, I have emails showing that I contacted him as early as August and continued to do so up until my final email that I wrote to my ad manager and copied to the publisher. Only then did I get a "meeting" to discuss the situation. So I did not spring this on them, I notified them well in advance.

If I remember correctly, they have agreed to schedule changes in the past. If they concede that and/or you can document it --ideally through written documents-- then it seems to me that demonstrates that with respect to your job you don't have to be there at any specific time and/or there are a broad range of times that would be suitable. So while they may be within their rights to change their mind, for whatever reason, you certainly haven't done anything "wrong".

So, first and foremost you need a copy of your job description / duties & responsibilities and anything in writing regarding company policy on "scheduling". Typically employee handbooks will cover the time frames that you need to be there. If you have "flex time", it may say something about your start and quit times being consistent but there may also be some language about managment approval of changes.

You need to do a time line to the best of your recollection showing your various schedules during your time there. You should note when it changed and why it changed, who agreed to the changes, etc.

I'm just speculating here but is it possible that the company's real problem is with your supervisor? Perhaps they are wondering if s/he is doing an adequate job monitoring your performance and they are insisting on someone that can be there when s/he is? Which is perfectly understandable and reason for "letting you go" but that doesn't mean that the "fault" is yours; rather that circumstances simply changed.

I think your real problem here is that the caseworker is probably confusing the claim requirement of "being available for work" with your employer's change of heart over flexible scheduling. They are two entirely separate things but her confusion is understandable.

As a practical matter, you need to put your "proof" together and get it into her hands ASAP because I suspect that she is trying to "finesse" you into rolling over to make her job easier. It would be a mistake to hope that she is going to do any sort of investigation and fact gathering. She will likely simply look at whatever information each side presents.

For instance, they will probably give her whatever they think the "warnings" were but conveniently omit a copy of the disciplinary procedure if they are not in compliance with it. It is up to you to try and show any non-compliance with their own policies and procedures. And if I am reading the case I found correctly any warning needs to be unambiguous if they have no formal disciplinary procedure. I still can't tell whether they have a formal written policy.

The bad news is that if they don't have a formal policy the "Commission" determines what it is. So you really need to try and shape her opinion on this.

If you have the time I would suggest that you try "googling" some of the other cases mentioned in this one. Or better yet use the "Meta Search" engine "Dogpile". To increase the likelihood of finding anything include the full case name / citation. Some of them are only mentioned by name, in which case you should add the search terms "Employment Security Commission of North Carolina” or "north carolina" and "unemployment".

But for now I would focus on going through your records and putting your "case" and "evidence" together. You really need to make sure she gets a complete picture. The sooner the better.

Good luck and please keep us posted.
~Cath

[VisionaryMom]

Oh, no, I wasn't questioning you. I was just trying to understand why you are going through what seems like a huge PITA and what the possible result is. This seems like such a pain when I'm guessing you could use the money now and not months from now when this is sorted out.

[Potty Diva]

Brandi I didn't think you were questioning me at all I was just filling in information.

Cath- sounds excellent. I never considered using the flex time they offered me before. Going to campus for a majors meeting, coming in late when Kailey had a late arrival at school due to weather, letting me stay late when I wanted to make up lost hours, etc. They sure were flexible then.

I've got a good time line done now but am going to add a few more things. I want to fill in any blank spaces, ya know?

Brandi- it's not a matter of needing money now, but getting rid of anything that says I was "discharged for misconduct." It's a lie and I want it taken off my employment record.

[CathMac]

Originally Posted by Potty Diva

...
Cath- sounds excellent. I never considered using the flex time they offered me before. Going to campus for a majors meeting, coming in late when Kailey had a late arrival at school due to weather, letting me stay late when I wanted to make up lost hours, etc. They sure were flexible then.

I've got a good time line done now but am going to add a few more things. I want to fill in any blank spaces, ya know?

...

Please update us after you look at the employee handbook. I'm dying to know if they have a stated policy on scheduling and on any discipline procedure. I might be able to help you apply the facts to the actual policies in question.

One clarification, I believe "Flex Time" refers to having the option to pick a schedule other than the standard 9 to 5. The flex time options are usually within a range. Where I am it is 7:30 to 5:30 and you pick your start and end time, allowing 8 hours for working plus half an hour or an hour for lunch. Once you pick that schedule you are stuck with it unless you request a change and receive approval. Essentially that means that you can't work from 7:30 to 4:00 for a couple of weeks and then "unilaterally" decide to start showing up at 8:00 and leaving at 4:30.

Depending upon the type of job you have you may be more limited in your choice of schedule. If you are in customer service and the company is understaffed you might have to stick closer to 9 to 5 to ensure coverage during peak times.

The kind of flexibility you refer to above is a little different. Some employers are pretty liberal and informal about allowing people to come in early and leave late, or making up time by working through lunch etc. It's unlikely you'll see anything concrete about this in the handbook but if you have emails showing they've offered that kind of flexibility it could help your cause even though it's not directly on point.

It would be way more helpful if you can document that you have mutually agreed to scheduling changes even if they do not have a formal flex time policy. Look at it this way, employers and employees have an employment contract, even if it is "at will" (meaning you can leave or they can "let you go" at any time). As with any other contract it is subject to negotiation and re-negotiation. That's not something you normally think about with the typical 9 to 5 job. It's not like you or I are going to ask the company president for a big bonus, a company car, an expense account, or a reserved parking spot.

However, it's probably more common for the typical 9 to 5'er to negotiate more routine stuff like job responsibilities (e.g.: "can I take over that big account?") and scheduling (e.g.: "can I switch my hours?" or "can I come in early and leave early tomorrow?")

What's especially critical here --if I understand correctly-- is that you have an email trail showing they were aware of your request for a scheduling change for some time and that they didn't make an issue of it until very late in the day. Depending upon the actual content and tone of the emails it would seem that at a minimum this documents that scheduling is negotiable. It just so happens that you weren't able to come to an agreement this time. And in the absence of a concrete reason why they couldn't agree to a change that would tend to suggest that the scheduling issue is a red herring or a "pretext". Who knows what the real reason might be but if it were a legitimate one that's what we would be discussing here.

I'm sure I'm beating a dead horse here but it is worth emphasizing that I realize they don't have to come to an agreement with you on scheduling but that doesn't mean you are in any way "at fault" which is the litmus test for collecting benefits in NC.

Good luck. And, again, please keep us posted on the scheduling and discipline policies, if any.
~Cath

[Climbergirl]

Fight it girl! You were totally wronged.

I would write more put my LO is trying to jump off my lap.

I got a letter saying I was not fired for misconduct, but for my inability to do the job (i.e. you are an idiot). Which was soooo not true. Apparently laying you off up the insurance premiums they have to pay but cutting out the dead weight is not as bad. They did the exact same thing to another girl there.

I would fight it unless it starts to become stressful for you and your family.

GOOD LUCK!!!!

[Potty Diva]

And I TRAINED the new girl who took my place!!!

One of the requirements for getting benefits is that you have to look for work at at least 2 businesses each week, which I am doing. So if I can find something great!

[CathMac]

Bump

PD,
How are you doing?
~Cath