Employee/Employer hearing

[FootDoctor]

I'm an employer of a small business and fired one of my employees of 3 years for what I feel is willful misconduct. I appealed unemployment benefits of the employee, they appealed and now there's a hearing (they requested in person). They got a lawyer, I was wondering if I should get one if they got one?

The other three employees I have all witnessed their misconduct which included: showing up late for work (once), texting during office hours (once), not doing procedures when told to do so (three times--said she forgot), not starting work on time/seating patients on time (three times--6,8 and 10 minutes behind schedule b/c wasn't prepared for day), rearranged schedule on own accord (twice) on computer when told this was not permitted and only allowed by the receptionist, talked back to me/employer and receptionist (only witnessed by me when it happened to me, but was witnessed by me and receptionist when talking back to receptionist), came back from lunch 1/2 hour late without asking if she could, stopped work on a patient without asking permission and without finishing treatment on that patient. The employee signed an office manual stating they agreed to our policies which included: no texting, no showing up late for work, starting on time, and not rearranging schedule. Each occurrence of misconduct by employee was documented by me, the employer, dated and signed by me, but not the employee--is that a problem? Also, we had office meetings about four times a year during which that employee along with all other employees were told that if they didn't do certain things or did certain things, like mentioned above, their job was in jeopardy...which all other employees also witnessed.

The claimant stated on their appeal of appeal that they were fired b/c they didn't work fast enough. That was never told to employee and every employee that currently works for me have agreed to witness to this and the above acts of misconduct.

Their father called me and left voicemail on my phone telling me what he thought of me (cussing) which I have recorded and submitted into evidence but I suppose it doesn't mean anything.

I don't really care if my unemployment rates go up, but it's the principal of it. They were fired for in my opinion good cause and I don't feel she should collect unemployment since she was terminated for good reason.

Should I get a lawyer? Any advice on presenting a case? I have three witnesses including myself, do I have to be present? The only concerns are not having the employee document what I documented (is that necessary) and regarding them having a lawyer. I don't want to pay for one and was wondering if I could just get by with having my employees and one of my associates there (who is also an employer) so I can work that day? I'm not sure if them having a lawyer, if they will throw verbal jargon that will make my employees mess up.

Thanks for any and all help,
Mark

[DAW]

I am never going to tell someone to not get a lawyer. I can say that is unusual for either side of a UI dispute to have a lawyer and I am less then convinced that getting a lawyer for a UI hearing necessarily helps. I am less then convinced that most lawyers are UI experts. The key thing is at the end of the day, it is the state's decision, and what you have said does not certainly disqualify the employee from UI.

Very basically both sides tell their story to the ALJ and the ALJ knows that these are indeed "stories", as in something not necessarily the truth. The ALJ does not have to believe anything either party says. Often they do not. Any ALJ with more then one week's experience feels like they have been watching bad episodes of Family Court.

If you do nothing else:
- Tell the truth.
- Keep your story short, focused, on point.
- Do not interrupt the ALJ or the other party for ANY reason.
- The sides that brasses off the ALJ generally loses. Talking a lot, repeating yourself, interrupting, not listening to the ALJ, reacting to the other side are all things that hurt you in these hearings.
- You cannot make the ALJ decide your way. It is entirely the ALJ's decision. They know this even if you do not.

[Morgana]

If you have never done a UI hearing, it is a learning experience. Your insurance may have someone who can assist your by either walking you thru preparations for a hearing or by representing your side. It may be part of the admin fee you pay them.

The more you have your paperwork in order, your ducks in a row and can show you did your part, the better your chances.
I've never had an attorney and I've never had the other party have representation either.

Two big keys...be very professional. yes, sir, yes mam to the ALJ. Listen very carefully to what they ask for and what they want. Everything takes place in its time and they have a specific process they follow. They dont want you jumping in trying to tell your side of the story when they are trying to get the preliminaries out of the way.

Good luck. It takes time but you need to try. I contest virtually every person we terminate. Not only because of the money but because of the principle.

[FootDoctor]

I contest virtually every person we terminate. Not only because of the money but because of the principle.

That's exactly how I feel. If I had let her go for no reason at all, I'd have no issue with her collecting unemployment. For me it's the principle--she was fired for a reason. I appreciate the help of both responders. I'm sure a lawyer won't hurt, but I feel like the first poster, if I'm honest, which I will be, then it is what it is. Even if she wins, I really don't care that much other than tax rates increasing, but for me it's really the principle of it.

[DAW]

The other thing is that the state has their own rules for UI eligibility. The employer having what the employer thinks is a good reason to terminate the employee may or may not match up with what the state feels are the requirements for UI. I have heard some people say that denial of UI means either the employee quit or was terminated for gross misconduct. State rules are generally not that cut and dried, but there is something to that view. And there is a element of "calling balls and strikes" to this. Even if all ALJs in the same state are subject to the same rules, if you present exactly the same set of facts to a bunch of ALJs, you will not necessarily get the same answer. The very best you can do is try to avoid shooting yourself in the foot and hope for the best. I have worked for employers who could have lost any court action with any set of facts largely because they simply were incapable of shutting up. And equally incapable of listening to what the ALJ was saying.

[FootDoctor]

I have documentation of over 14 different instances of willful misconduct that 3 other employees witnessed. Is this enough? I didn't think to have the employee in question to sign the acts of willful misconduct that I signed and dated on each occasion. At the beginning of employment I have all employees agree to office policies which clearly state that acts of willful misconduct aren't tolerated or their jobs are in jeopardy, which they sign and date in agreement to.

Any tips for preparation? Do I have a case at all since the employee didn't cosign the instances of misconduct? Every other employee (3 others including myself) can attest that the employee in question committed the acts of misconduct...is this enough or does it just depend on the hearing officer?

My plan is to bring the other employees as witnesses which all have agreed to doing except one which is on maternity leave and I have a signed document stating under penalty of perjury that they witnessed the acts of misconduct (which I have documented). I have a time sheet that shows the 1/2 hour late lunch she took. I also will have the document of each signed (by me) and date of the 14 acts of willful misconduct. I have one typed document handed out to all employees at a meeting stating what not to do--messing up schedule, texting, showing up late for lunch (which the employee in question was doing). Sounds like a decent plan or is there no hope if I didn't have the employee in question counter sign the acts of willful misconduct?

The claimant is saying they didn't know their job was in jeopardy...at each office meeting and in the office polices I feel it was dictated it was in jeopardy, the same policies all employees signed.

Thanks,
Mark

[CAIW]

Sounds like a decent plan or is there no hope if I didn't have the employee in question counter sign the acts of willful misconduct?

Put anything you want in an EE's file. Having a EE sign a paper you intend to place in a file only means the EE is aware of the fact...there is no agreement to the "willful misconduct". Or admission of violating your internal HR policies. Just that there is knowledge you placed the document in the file. Doesn't even have to read it first.

IMHO...UI is administrative law. Going in to a hearing room with charges of "willful misconduct" and making this sound like there have been gross felonies committed against your company ...sounds like overkill.

So, your other EE's witnessed the actions. If you didn't, it amounts to hearsay. Even it there are 3 of them.

Go into the hearing and present yourself as the others here have suggested. Speak when you are spoken to. Be concise in your statements, make your case why you are appealing the UI application. And let it stand on the merits you present.
Presenting yourself as you have in this thread... IMO, you're gonna be unhappy with the outcome.

...is this enough or does it just depend on the hearing officer?

Always. That's why you are going to an appeal hearing. If you don't like the outcome here... go to the next level, the court of appeals. That takes it out of the administrative law system.

"willful misconduct"... you make it sound like this EE intentionally set out to undermine your business. With forethought and malice... is that what you are suggesting ? Did you actually discuss these infractions with the EE on each occassion ? Or is this what you refer to as "documentation"...

You haven't indicated your state here, but the employment development dept, UI commission... web site may provide some guidance for you.

Good luck.

[FootDoctor]

I definitely won't present myself making accusations, I'll just present the facts, but again without them signing the acts of conduct, then perhaps it won't hold water. The only "proof" of facts I have are the manual that the employee agreed to and signed when they started work and the policies they broke (isn't this documentation showing that they agree to the policies and that if they broke them their job was in jeopardy?), namely: a time sheet where they purposely showed up a 1/2 hour late from lunch, and 4 witnesses including myself seeing that they manipulated the office schedule to suit their own interests, talking back to office manager and myself (insubordination), not performing office duties when told to do so on 3 occasions (taking x-rays), seating patients late on three occassions b/c they weren't to work early enough and seating patients late as much as 10 minutes late, and stopping work on a patient when they had time to complete treatment without consulting the doctor to stop treatment.

I do not feel the employee did not have malicious intent to "destroy the office". The bottomline was that we could not count on them anymore to work. The final straw was the employee "texting" the office manager stating they couldn't come to work b/c they had to move out of their house. We are a small office and not having people show for work is a large burden. Not to mention the employee texted the day before work at midnight.

Do I have any case at all? Is proof from a time sheet, and from 4 witnesses good "proof". I agree CAIN I will only present the facts that I have and nothing else. I'm a very humble person and would never make accusations or hearsay or yell or anything at the hearing. If I came across on the forum as otherwise I apologize.

I'm in NC...I've read the site a lot and it states that the employer has to demonstrate acts of willful misconduct for the employee not to receive benefits. Again, I would not care to fight this if the employee performed their job and acted professionally but they did not IMO.

[DAW]

- The problem with employee signed documents is that the employee will claim (correctly or not) that they were told to sign the document or be fired. The ALJ will generally not treat the signed document as an admission of guilt, but rather having been given a "sign this or be fired" option. Employee signatures are worth something, the show that the employee was notified of the problem, but legally that is generally all the signature means.

- The rules are whatever the ALJ says the rules are, but generally if one looks at the actual state law, the rules in theory are disqualification is quitting or gross misconduct. What you describe is mostly not gross misconduct. What you describe sounds like a legal termination but does not sound like certain cause for UI disqualification. There is no legal intent that all terminations be UI disqualifications. This may be a matter of principle to you, but it is a matter of following the law to the ALJ. It is very likely that you and state UI are looking at this matter from two very different perspectives.

- Make your argument to the ALJ. Why not. Many employers routinely challenge all UI claims. But if we are talking about anything other then the employee quitting or gross misconduct, your chances are less then great. Not zero, but also not very good.

- Last point. This will not be your only dealing with state UI. Behave in a matter that preserves your credibility. Assume that the ALJs all talk to each other and that there can be notes in your "file" with some longevity. Also assume that the ALJ will not necessarily believe anything either party says. Because parties lie (a lot) in these hearings. You can improve your results (on average) over time. You cannot force a certain outcome no matter what you say or do.

[cbg]

At any time did you give the employee a written warning that if x happens again, he will be terminated? If so, your chances go WAY up. If you didn't, it's always a toss-up.