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Employer appeals my unemployment benifits Georgia

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  • Employer appeals my unemployment benifits Georgia

    On 19 April I returned to work from having multiple surgeries. The leave was considered FMLA. Before my shift began I was escorted off the premesis and read a termination letter of which everything stated therin was false. The Employer stated that I threatened coworkers with a small shotgun and intimidated them 2 months earlier. My reaction was to ask if this was a joke as I had been on great terms with everyone before leaving for FMLA. During the initial investigation conducted by the DOL I was granted the benifits as the employer could not provide evidence that any wrong doing took place on the dates specified in the termination letter.
    After two weeks the Employer has filed an appeal through a third party company stating that I violated company pollicy of bringing fire-arms to business (never took place) and threatened others in an intimidating fashion. I now face a tribunal (date not set) and I am at a loss of words. There is no evidence (50+ cameras on-site) or recordings showing any wrong doing.
    After the suposed wrong doing in Feb, I did take leave for medical reasons and returned to find I was jobless. Employees that worked on the date of the suposed incident would testify that they did not see anything or don't remember anything taking place. Knowing I have the ability to subpoena video and the testimony of the entire shift; what actions could I take to not only win the appeal, but to prevent the rollercoaster of worry from happening again ? I have been awarded the benifits initially, again after the board findings, and now this?
    I understand that violations took place (FMLA Law) but no attourney is willing to take the case( one stated "It's not worth my time"). I don't think it would be considered in this matter (tribunal)
    I sincerely appreciate your valued time and will take everything "with a grain of salt".

  • #2
    All you can do is tell the truth and answer any questions put to you truthfully.

    Under FMLA, a company is allowed to discipline an employee if the discipline would have taken place if the employee wasn't on leave. So just because you were termed your first day back does not mean it is retaliation, it may mean the company didn't want to term you while on leave.

    Since the company is appealing the burden of proof will be on them to show you did what they allege.

    I don't know enough about Georgia law to comment on your ability to subpoena video or employees.
    Last edited by HRinMA; 06-01-2011, 05:03 AM.

    Comment


    • #3
      As HRinMA commented, the burden of proof is on the employer to demonstrate at the hearing that you engaged in willful misconduct (brought a gun to work; intimidated coworkers), not on you to prove that you didn't. Your employer will have to bring first-hand evidence to the hearing (video or photos from the surveillance system and/or testimony of other employees who saw you with a gun) in order to prevail.

      If the company rep at the hearing just "says" you did such and such, it's only hearsay and carries virtually no weight. Since none of this happened, I doubt you have much to worry about at the hearing unless someone is willing to purjure themselves, which is quite unlikely.

      You can contact the UC Division regarding their issuing subpoenas on your behalf for the hearing but it really doens't sound like that will be necessary.

      Comment


      • #4
        Thank you

        Thank you both as I honestly believe nerves could be getting the better of me. The entire situation is quite frustrating as the employer (Multibillion$ Corp) has several small instances with customers but never employees. Atleast it's what you are lead to believe being on the other side of the situation. According to the employer a threat or intimidation is a matter of perspective. If that is the case anyone can asume anything about everything. What you and I see as a conversation, a third party might see body language as threatening from affar. If it was percieved that a hand in my pocket was a weapon as seen from affar and body language appeared out of the ordinary I can see how it could get out of hand. How do we draw the line between perception and reality in these instances?

        Again my sincerest thanks!!

        As for the FMLA thing...
        The Employer must place the employee back into the same position or position with equal pay and enviornment upon return. Arriving 30min early to work and being escorted off premisis before shift isn't being placed back into same position. (what I see as violationbut could be completely in left field)Employer also provided an increase in hourly wages after the "alleged incident" which also makes things weird as the increase was nearly 1 month before returning. (out of work 2moths 5 days)..and I cannot say it enough but THANK YOU!! Sometimes we get tunnel vision going into stressful situations and your perspecives help clear things up!
        Last edited by kcchayes; 06-01-2011, 07:29 AM.

        Comment


        • #5
          Keep in mind that FMLA does not protect you from a termination that would have happened anyway. If your employer would have termed you for the alleged handgun incident regardless of whether you were on FMLA or not, then the fact that you were fired upon returning from FMLA does not create a FMLA violation.

          It's kind of a toss up whether an employer who is looking to term someone for cause, when that person is on medical leave, should do so during the leave or immediately after. The jury is out on which is considered best practice. Neither automatically makes it a FMLA violation.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

          Comment


          • #6
            If it was percieved that a hand in my pocket was a weapon as seen from affar and body language appeared out of the ordinary I can see how it could get out of hand. How do we draw the line between perception and reality in these instances?

            You can't. Everyone has their own perceptions about things. That's just the way it is. But if your employer testifies at the UC hearing that "he had his hand in his pocket and we fired him because we assumed he had a gun in there," the letter approving UC benefits for you will practically beat you back home. The UC hearing adjudicator wants first hand testimony and evidence that you engaged in willful misconduct, not what someone thinks may have been in your pocket based on a wild hunch.

            Comment


            • #7
              Originally posted by kcchayes View Post
              Thank you both as I honestly believe nerves could be getting the better of me. The entire situation is quite frustrating as the employer (Multibillion$ Corp) has several small instances with customers but never employees. Atleast it's what you are lead to believe being on the other side of the situation. According to the employer a threat or intimidation is a matter of perspective. If that is the case anyone can asume anything about everything. What you and I see as a conversation, a third party might see body language as threatening from affar. If it was percieved that a hand in my pocket was a weapon as seen from affar and body language appeared out of the ordinary I can see how it could get out of hand. How do we draw the line between perception and reality in these instances?

              Again my sincerest thanks!!

              As for the FMLA thing...
              The Employer must place the employee back into the same position or position with equal pay and enviornment upon return. Arriving 30min early to work and being escorted off premisis before shift isn't being placed back into same position. (what I see as violationbut could be completely in left field)Employer also provided an increase in hourly wages after the "alleged incident" which also makes things weird as the increase was nearly 1 month before returning. (out of work 2moths 5 days)..and I cannot say it enough but THANK YOU!! Sometimes we get tunnel vision going into stressful situations and your perspecives help clear things up!
              Have you spoken to former coworkers about what they saw that day? I would hesitate to subpoena anyone unless you knew in advance what they would say.

              Comment


              • #8
                Originally posted by HRinMA View Post
                Have you spoken to former coworkers about what they saw that day? I would hesitate to subpoena anyone unless you knew in advance what they would say.
                Per the OP's first post: "Employees that worked on the date of the suposed incident would testify that they did not see anything or don't remember anything taking place. Knowing I have the ability to subpoena video and the testimony of the entire shift;"
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  Your paperwork from the tribunal may indicate the order of presentation. If they are appealing the decision, I think they get to present first. So you should get to hear their entire side of the story before responding. This is a big advantage. Stay calm. During their presentation, take notes so you remember what to include in your side. Wait your turn to respond. Present facts. Do not get emotional. If they say, "he brought a gun onsite and waved it around and threatened his co-worker" then you can respond, "I did not speak to that co-worker that day. I do not own a shotgun/I did not bring a shotgun to work." etc. You can tell them that you had a good working relationship with your co-workers, that FMLA was approved, and that you received a merit raise during your leave. You can tell them that you came back from leave only to be escorted off the property before your shift started, with word that you had waved a gun and threatened people. All of these factors should make the appeal board think "what's going on here?"

                  Comment


                  • #10
                    Originally posted by Betty3 View Post
                    Per the OP's first post: "Employees that worked on the date of the suposed incident would testify that they did not see anything or don't remember anything taking place. Knowing I have the ability to subpoena video and the testimony of the entire shift;"
                    I read that but it doesn't actually say he spoke with them. I thought it might mean since the event didn't happen that they would have to testify that way. If he has not spoken with them then he doesn't actually know what they would say.

                    Comment


                    • #11
                      I was taking it that OP did talk to them since he said they would testify that they
                      didn't see anything or remember anything taking place. Don't know positively -
                      not completely clear.
                      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                      Comment


                      • #12
                        It should also be pointed out that it would not be the first time an employee agreed initially to testify for their co-worker, but developed a convenient memory loss when push came to shove, particularly if their own job was in jeopardy.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                        Comment


                        • #13
                          Agree, that "can be" a problem.
                          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                          Comment


                          • #14
                            Not to mention "I didn't see anything" does not mean "nothing happened".

                            Comment


                            • #15
                              Agree but it might help to some extent if no one saw anything.
                              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                              Comment

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