Results 1 to 11 of 11

Thread: Discharge for Misconduct upheld South Carolina

  1. #1
    Junior Member
    Join Date
    May 2017
    Posts
    4

    Default Discharge for Misconduct upheld South Carolina

    Hello all, I am trying to navigate the unemployment process for the first and hopefully last time in my life. I have some questions on my situation that I am hoping someone can shed some light on. As the title of my post suggest, I recently received the decision from the tribunal hearing that affirms discharge for misconduct. The information is as follows: After missing 8 days of work (we are allowed to miss 7) due to a reoccurring migrane, I was discharged for excessive absenteeism. I am not disputing the discharge, only the discharge for misconduct. I notified my supervisor each and every day I would be absent. I did not have any prior warnings and my job was in good standing prior to my sickness. The company offered me fmla, but due to financial issues, I frankly just cannot spend that amount of money on all the testing and visits that they are going to want to do to even try to qualify for fmla. Under Reasons, the AHO cited SC Code 41-35-120(2)(a), and posted the meaning of Misconduct according to the code. After reading the entire code, I am completely at a loss as to how the AHO can affirm discharge for misconduct. The last paragraph of the code specifically states, "No finding of misconduct may be made for discharge resulting from an extreme hardship, emergency, sickness, or other extraordinary circumstance." Under Reason, the AHO also stated that I was offered fmla to protect my job but failed to do so, but made no distinction for my absences, simply stating that "absences, even for unavoidable reasons are nonetheless absences and disregard the employers' reasonable expectations." I don't see anywhere under that code that says refusing fmla constitutes misconduct, but it does specifically protect sickness from being labeled as misconduct. And my financial situation is my own for which I have no shame, as I may live on a very fixed income but I am independent. It would seem to me that not being able to afford a doctor could easily fall under "extreme hardship" under the code. But that's just my opinion and it obviously don't count for much. I would be interested to hear what others think. If it matters, I was with the company for over 19 years with the last 8 years perfect attendance. No pattern of absences, nor disciplinary infractions. Thanks for reading, and if there's any questions, I will try my best to answer.
    Last edited by Dug; 05-27-2017 at 05:48 AM.

  2. #2
    Senior Member
    Join Date
    Jun 2006
    Posts
    1,579

    Default

    Hindsight is 20-20 but it would have been much less expensive to pay for a dr visit plus the see paperwork fee to be protected under fmla. Your situation is exactly the reason for that law.

    As for unemployment I suspect they are viewing it as refusing work since I could have easily kept your job by doing basically one thing, yes it may have cost a bit of money but u traded that for your long term job..

  3. #3
    Junior Member
    Join Date
    May 2017
    Posts
    4

    Default

    [QUOTE=hr for me;1252774]Hindsight is 20-20 but it would have been much less expensive to pay for a dr visit plus the see paperwork fee to be protected under fmla. Your situation is exactly the reason for that law.

    As for unemployment I suspect they are viewing it as refusing work since I could have easily kept your job by doing basically one thing, yes it may have cost a bit of money but u traded that for your long term job..


    SC Code 41-35-120 (2)(a): Discharge for misconduct connected with the employment. If the department finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request, and continuing for the next twenty weeks, in addition to the waiting period, with a corresponding and mandatory reduction of the insured worker's benefits to be calculated by multiplying his weekly benefit amount by twenty. For the purposes of this item, "misconduct" is limited to conduct evincing such wilfull and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer. No finding of misconduct may be made for discharge resulting from an extreme hardship, emergency, sickness, or other extraordinary circumstance.

    I don't understand how my discharge can be interpreted as misconduct. Extreme hardship, emergency, and extraordinary circumstances are open for interpretation, but the code specifically states sickness. My not applying for fmla is due to financials, which could fit into either extraordinary circumstances or extreme hardship. There're certainly no evil design in my financials, I make what I make. Some will have more than you, some less. The number one reason in America for bankruptcy is for medical bills, it is a real issue to a lot of people. I don't see that anything I did can be construed as wonton, willful, evil etc. Fmla is also no guarantee that you will keep your job. In my 19 years there, I know of at least 3 who took it and still was let go. So you have no job, and a hefty medical bill to pay. And if you get the same AHO I got, you will probably be disqualified for benefits too since in her opinion, absences are absences. The law seems to make a very clear distinction, at the very least the AHO should explain why my sick days are not covered by it.

  4. #4
    Senior Member
    Join Date
    Jul 2006
    Posts
    1,892

    Default

    [QUOTE=Dug;1252776]
    Quote Originally Posted by hr for me View Post
    Hindsight is 20-20 but it would have been much less expensive to pay for a dr visit plus the see paperwork fee to be protected under fmla. Your situation is exactly the reason for that law.

    As for unemployment I suspect they are viewing it as refusing work since I could have easily kept your job by doing basically one thing, yes it may have cost a bit of money but u traded that for your long term job..


    SC Code 41-35-120 (2)(a): Discharge for misconduct connected with the employment. If the department finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with ineligibility beginning with the effective date of the request, and continuing for the next twenty weeks, in addition to the waiting period, with a corresponding and mandatory reduction of the insured worker's benefits to be calculated by multiplying his weekly benefit amount by twenty. For the purposes of this item, "misconduct" is limited to conduct evincing such wilfull and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer. No finding of misconduct may be made for discharge resulting from an extreme hardship, emergency, sickness, or other extraordinary circumstance.

    I don't understand how my discharge can be interpreted as misconduct. Extreme hardship, emergency, and extraordinary circumstances are open for interpretation, but the code specifically states sickness. My not applying for fmla is due to financials, which could fit into either extraordinary circumstances or extreme hardship. There're certainly no evil design in my financials, I make what I make. Some will have more than you, some less. The number one reason in America for bankruptcy is for medical bills, it is a real issue to a lot of people. I don't see that anything I did can be construed as wonton, willful, evil etc. Fmla is also no guarantee that you will keep your job. In my 19 years there, I know of at least 3 who took it and still was let go. So you have no job, and a hefty medical bill to pay. And if you get the same AHO I got, you will probably be disqualified for benefits too since in her opinion, absences are absences. The law seems to make a very clear distinction, at the very least the AHO should explain why my sick days are not covered by it.
    There is no proof that your absences were due to illness, other than you saying so. How does the company or the state know you were sick?

  5. #5
    Senior Member
    Join Date
    Jun 2006
    Posts
    1,579

    Default

    FMLA is EXACTLY job protection. If an employer retaliates for you taking 8 days of FMLA protected leave, you would have had a much clearer case and one that could get you a settlement. You seem to be misunderstanding what FMLA is for and how to use it.

    And yes, if you fail to provide proof of your illness, your employer does NOT have to take your word for it. Missing 8 days and being unwilling to go to a doctor is a bad judgment call. (and yes, I have had migraines and often suffer from silent migraines)

    As for unemployment, if you had a doctor's note, you would be able to prove emergency or sickness.

    Extreme hardship is going to be a stretch honestly. You had choices, your employer offered them to you like they MUST under the laws and you chose not to avail yourself of them.

  6. #6
    Junior Member
    Join Date
    May 2017
    Posts
    4

    Default

    [QUOTE=HRinMA;1252787]
    Quote Originally Posted by Dug View Post

    There is no proof that your absences were due to illness, other than you saying so. How does the company or the state know you were sick?
    I've not been absent in the last 8 years, but I have had to be out before and have never been asked for proof of any kind. I did what I've always done and informed my supervisor that I am Ill and would not be able to make it in. I once had to take bereavement and told my supervisor that I would bring him documents when I got back and I was told it wouldn't be necessary. The attendance policy also makes no mention of proof. The decision also made no mention of proof or lack of proof, but did acknowledged that my absences were "unavoidable." If a doctor's excuse is necessary for proof, it would be easy enough to add the wording into the code and save some people time from even applying for unemployment. Is a doctor's excuse necessary?
    Last edited by Dug; 05-30-2017 at 08:16 AM.

  7. #7
    Senior Member
    Join Date
    Jun 2006
    Posts
    1,579

    Default

    once you are out for 3 consecutive days, assuming your employer and you are eligible for FMLA, the employer is REQUIRED BY LAW to request medical documentation to see if your condition falls under FMLA. The last 8 years or what happens for short term sickness or bereavement doesn't matter. You were asked for FMLA documentation on the absences, couldn't provide it so they had every right to terminate you as if you had spent that time at Disneyworld on a family vacation without permission to leave work. You gave no proof to either the employer or UI so they have a right to deny UI benefits due to misconduct.

    I've had stubborn employees refuse to provide documentation for FMLA and/or ADA. The law provides that in that case, the rights shift to the employer and the employee is on the losing end. That's where you got stuck. Penny wise, pound foolish.

  8. #8
    Junior Member
    Join Date
    May 2017
    Posts
    4

    Default

    Quote Originally Posted by hr for me View Post
    once you are out for 3 consecutive days, assuming your employer and you are eligible for FMLA, the employer is REQUIRED BY LAW to request medical documentation to see if your condition falls under FMLA. The last 8 years or what happens for short term sickness or bereavement doesn't matter. You were asked for FMLA documentation on the absences, couldn't provide it so they had every right to terminate you as if you had spent that time at Disneyworld on a family vacation without permission to leave work. You gave no proof to either the employer or UI so they have a right to deny UI benefits due to misconduct.

    I've had stubborn employees refuse to provide documentation for FMLA and/or ADA. The law provides that in that case, the rights shift to the employer and the employee is on the losing end. That's where you got stuck. Penny wise, pound foolish.
    I wasn't asked to provide anything. Can you direct me to the source that states the employer has to ask for medical documentation please. Been trying to search for anything that might say a doctor's excuse is necessary and have not been able to come up with anything. Looks like the responses have all been from HR personnel and although the opinions stated are appreciated, nothing has directed me to written law that explains how my discharge falls under misconduct. The only thing I didn't do is file for fmla, and there was no evil intent behind that. Will just appeal and hopefully out of a panel of 3, they can explain how misconduct is applicable if it stands. Thanks for all the input.

  9. #9
    Senior Member
    Join Date
    Jul 2009
    Location
    Arkansas
    Posts
    152

    Default

    Misconduct is a word UI agencies use when people break rules. You broke a rule (more than 7 missed days).

  10. #10
    Senior Member
    Join Date
    Jun 2006
    Posts
    1,579

    Default

    "The company offered me fmla, but due to financial issues, I frankly just cannot spend that amount of money on all the testing and visits that they are going to want to do to even try to qualify for fmla"--> this is where your employer asked you to prove the medical need for timeoff. You chose not to do so.

    https://www.dol.gov/whd/regs/compliance/whdfs28g.pdf top of page 2 states what happens if you fail to return medical certification.... that is the employer doesnt' have to count the timeoff under protected FMLA, so they were in their rights to use the company policy rule to measure your absences.

    Like PayrollGuy states, you missed more that 7 days (and didnt' provide medical certification), so you broke a company policy/rule.

  11. #11
    Super Moderator
    Join Date
    May 2005
    Location
    Massachusetts
    Posts
    38,369

    Default

    There doesn't have to be a written law that expressly defines misconduct. Nor is the decision to term your termination as being for "misconduct" your employer's decision to make, as far as unemployment goes. The state, and only the state, decides whether to grant or deny benefits, and it is the judgement of the UI commission that determines if the behavior is, or is not, a disqualifier for unemployment benefits. NOT the employer. Your issue is with them.
    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.

Similar Threads

  1. Replies: 19
    Last Post: 07-30-2012, 10:43 AM
  2. Race Discrimination and/or Wrongful Discharge South Carolina
    By DamonBurmeister in forum Discrimination Laws
    Replies: 11
    Last Post: 08-18-2011, 08:03 AM
  3. Can I get discharge for misconduct while I'm off the clock
    By bodiluvr in forum Hiring and Firing
    Replies: 6
    Last Post: 06-29-2011, 02:25 AM
  4. wrongful discharge for misconduct New York
    By nycapple in forum Wrongful Termination Laws
    Replies: 3
    Last Post: 11-30-2009, 06:16 AM
  5. CONSTRUCTIVE DISCHARGE South Carolina
    By southcarolinatransplant in forum South Carolina Labor Laws
    Replies: 0
    Last Post: 03-23-2007, 12:27 PM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •