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Are The Cards Stacked? Virginia

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  • Are The Cards Stacked? Virginia

    I had no idea that there was a Virginia labor law forum.
    If you don't mind, I'd like to post to this forum too?

    I wont post the Long brief that I posted to another forum because I'm sure that if anyone is interested they can find it?

    Here goes: I was turned down for UI and I am appealing that decision.

    Are the cards stacked in the employers favor when it comes to UI benefits in Virginia?

    My reason for asking:

    Virginia is a right to work state which means that an employer doesn't have to have a reason to fire an employee. (short version)

    I argue that They Do have to have a valid reason to fight my UI benefits.

    Alcohol on ones breath Is Not Willful Misconduct in my mind.

    Alcoholic breath Is a Valid reason to test an individual and if the individual fails the test then there is a valid reason to deny UI benefits.

    Does this sound correct?

    Six hours into my shift I was called by my supervisor to submit to testing Because he claims that he smelled alcohol.

    The test never took place.
    I was terminated without any testing.
    (this was 9:00 pm so I'm guessing that it was too much bother?)

    The gist: I have been denied my UI strictly on an employers .. ?
    Yes exactly .. an employers What?

    They say I had been drinking on the job .. (where did THAT come from, alcohol breath?) I deny it!

    Reviewing past cases in Virginia UI law and appeals .. the burden of Proof is on the employer when it comes to "Willful Misconduct".

    How did the deputy, after a "Fact Finding" call rule in the employers favor?

    I would think that Proof would have to mean something more substantial than "He said, I said"?

    The cards Have to be stacked .. Don't They?

    Thanks for listening to my rant.


  • #2
    Uh Oh.

    I just read a post by CBJ, (super moderator) and he/she made it Quite clear to a poster that folks Weren't going to run around looking for information that he had posted in other forums to help him, (the poster) out.

    (the post was dated around november of last year)

    The poster was told that it was his responsibility to make the information readily available!

    I'm sure that this advice includes me too.

    The following is the brief that I posted to the other forum.

    This is my appeal to the commission:


    I submit this appeal, contesting Deputy P. Showalter's decision that I am disqualified for UI benefits due to Deliberately Violating a Known Company Rule.

    In the Unemployment Compensation Commission Of Virginia's own words:

    "There is more to carrying the burden of proof than merely making the charge."

    "Were this not so an employer might only state that an employee was discharged for "misconduct" and the disqualification would be automatic."

    What started out as an alcohol on the breath charge, somehow along the way, became a drinking on the job charge!

    I fail to see how a three way conference call between myself, my former employer and a commission deputy can constitute proof, most especially when the former employer and myself deny each others charges?

    Did a supervisor or another employee catch me at work with a drink in my hand?

    Are there pictures that were taken of my alleged drinking on the job?

    My point is that my former employer has no actual proof of these allegations or of Willful Misconduct other than my supervisor alledging that I had alcohol on my breath.

    Another problem that I have with the decision against me is: Why is it that my supervisor did not have to sit in on the Fact Finding conference call since he was my accuser in the first place?

    The General Manager, the person Who Was in on the conference call Never came within ten feet of me on the night he let me go!

    I am claiming that Even if the alcohol on the breath accusations Were true,(they're not),in a Right to work state, alcohol on the breath may be a valid reason for termination But, I must argue: is Not a valid reason to deny UI benefits!

    My former employer first claims that I was offered a drug/urine test but turned it down when I admitted my guilt.

    The same employer, later on tells deputy Showalter that he Did Not offer me a a drug/urine test because .. of my admission of guilt.

    Which was it?

    I deny that I was given any opportunity to clear myself through testing and I also reject that this, in someway is proof of willful misconduct on my part.

    If Ms Showalter picked up on this apparent contradiction, I have no way of knowing.

    Ms Showalter Did surprise me when she asked IF I had gone and gotten a test on my own?

    Of course not!

    I knew that I hadn't been drinking on the job and I didn't believe it to be my responsibility to prove my innocence!

    "To carry the burden of proof of his charge the employer must supply the facts - and not just his conclusions."

    Since my employer claims that I was in such a Truthful state of mind the night that I was let go, admitting to everything, why was I not offered a waiver on the drug/urine testing?

    Why is there no document signed by me admitting guilt?

    Surely that would have established proof in everyone's mind!?

    Everything else is just .. "I said, he said".

    Another piece of evidence being held up as misconduct on my part, according to my former employer is a beer can.
    From the very little amount of information that I have been able to uncover, this beer can was found in an area that I have no access to and is in fact the old locker room area that is locked when our 3:00 pm shift starts.

    Beer cans as well as other assorted liquor bottles have been found in many areas inside and around the company plant .. That in itself Does Not make them mine!

    No one ever made the charge that I was under the influence of anything!

    I was never charged with being under the influence to the extent that my job performance was affected.

    That last sentence, dealing with influence and job performance is in our handbook and is given as a reason for alcohol/drug testing

    It was only claimed that my supervisor, "smelled alcohol" on my breath which, again, I submit is not a reason to with-hold UI benefits.

    "Where drinking on the job cannot be established, the employer must show reasonable evidence either that the worker was under the influence of alcohol during working hours, or else that the worker’s ability to work was impaired by alcohol."

    One of my former employers last statements in the Fact finding interview was: "He did not and has Never had any problems with my work or my work ethics!"

    I submit to you: My work nor my work ethics were any different the night I was let go.

    Thank You


    • #3
      There is no reason to post in multiple forums. The responders read all the forums.

      Answered elsewhere.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


      • #4
        The moderator has also made it quite clear that posting once is enough. All the responders read all the employment law forums; posting multiple times is a waste of your time and ours.
        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.


        • #5
          I'm sorry Pattymd but that is not what CBJ was telling another poster on 11/28/08.

          Supermoderator specifically said that it was our responsibility to post all pertinent information at the forum that we were posting in because No One was going to run around looking for the information.

          I apologize if I misunderstood.


          • #6
            Okay, this is the moderator speaking.

            1.) It is your responsibility to post all the information and not expect posters to go researching your issue in other threads.

            2.) DO NOT post the same question in multiple forums. There is no need to post the same question in, for example, the Virginia Law forum and then again in the Unemployment forum. All the responders read all the forms and it is a waste of your time and ours to post the same question twice.

            Got it?
            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.


            • #7
              I understand and please accept my sincerest apologies.
              It will not happen again.