Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Very happy I found this forum. Sorry for the longish first post but I'm in a bit of a panic.
I got unemployment but it is now being appealed by the employer. They are saying I was fired for misconduct, but in my 'exit interview' they simply stated to me that they felt I was not a good fit for the team, that I seemed unhappy working there, and that it was affecting my work performance. Nothing was mentioned about what they are presenting. I have no written record of this.
I was never under any warning or reprimand that I was operating at anytime on grounds of termination. This came as a surprise to me. The letter I got about the hearing lists a whole slew of 'evidence' for misconduct. Most either untrue or gross exaggerations except for two. I received no written or verbal warnings for 90% of them.
Questions:
For the fabricated instances, it will just be my word against there's. This scares me as I don't really have any evidence! Is just saying "that's a complete fabrication, do you have any evidence that this happened or I was aware of the infraction, and why wasn't this brought up for reason of termination?" enough?
For the gross exaggerations, I can supply my side, but that is it. For example, I was late once coming back from lunch. On lunch I lost track of time and I was approached by my manager (my eyes were closed listening to music) saying that my break was over and to be more on top of my time. They are listing it as "sleeping on the job".
How do I represent myself concerning the 'misconduct' that is true (about 2 instances out of 10 listed)? There was an instance when in the back on my phone. In a storage room, the manager came in and asked if I could come help her with something. There was no talk of me being on my phone or that she even saw me. Do I just cop to it, or should I deny it? Its strange, I didn't even know until right now that they were aware of that. I was thinking I could also say I was taking my allotted 10 minute break.
My theory is that I was payed a LOT more than the other people in my position so they hired someone that I trained and then fired me. Is this something I should state during the hearing??
Thank you! I'm going to try and relax a bit. I can provide any information to help answer any of the questions to whoever is able to take the time to answer them.
I wish people would describe things better. How do you know the employer's accusations? Was it because you went to view the evidence file, or did the employer put all this in their appeal "request"?
Also, the burden is on the employer to prove what you did with evidence. Learn what evidence is in a UI hearing. It's not a bunch of wild accusations. It's testimony from people that saw you do something. An employer representative saying, "we had a report that this person . . . " is hearsay, and you need to object to it while it's happening and preferrably before the accusation comes out of the rep's mouth. The judge will probably say, "heasay is allowed and will be given it's proper weight." That puts the judge on notice that you know what hearsay is and they will be extremely unlikely to use it. Hearsay cannot be taken over first-hand testimony.
Therefore if the person that saw you "sleeping on the job," isn't there to testify as to what they saw, you can honestly say, "I was not sleeping on the job." However, don't say you were "resting your eyes."
Same with the phone.
Also, you need to pay attention to timing. UI is about WHY you were fired. They don't get to list everything you ever did while working there. The further back in time the event occurred, the less likely that was the reason for firing you, and since they didn't fire you when it happened, to let you keep working is condonation. So in the event the person that saw you do something is testifying, be sure as one of your questions to ask on crossexamination is "when was this?" to establish the time and how relevant it was to your termination.
Is yours a telephone hearing? In-Person? If so, go view the evidence file about 3 days before your hearing so you can see any evidence your employer submitted. Also, be early to your hearing in case something last minute showed up. Keep in mind that it may not be real evidence. If it's written statements or the like from people that were too lazy to attend, you can get those dismissed during the evidence admission phase of the hearing at the beginning. You just object to it's admission because, "it's hearsay, the writer isn't under oath, and I can't cross examine a piece of paper." It will get pitched in the trash.
Your theory about why you were fired has no place at the hearing. You were canned, and you are simply making it so that your employer is prevented from saying anything bad about you that will believed.
Since you are involved in all the situations, you are a firsthand witness. I suspect when you follow up as to how you know what the employer is accusing you of, I'm going to be able to conclude that your employer is inexperienced at these hearings, and has no clue what they are doing, and you'll be able to make them look like fools.
I know the accusations because when I received the appeal date, I was also included the letter that my employer sent to them saying that they are appealing because of termination for cause (specifically for inability to adhere to company policy) and then they included a timeline of alleged infractions. There are 7 dates. That is all I have as their evidence. I can call the appeals office to see if there is more.
Quote:
Therefore if the person that saw you "sleeping on the job," isn't there to testify as to what they saw, you can honestly say, "I was not sleeping on the job." However, don't say you were "resting your eyes."
Same with the phone.
Okay, got it. For the phone example, if the person who 'caught' me isn't there, I can simply say "I was not on my phone" even if they did write it down on my file but never confront me about it?
Quote:
Is yours a telephone hearing? In-Person?
In-Person.
Quote:
Your theory about why you were fired has no place at the hearing. You were canned, and you are simply making it so that your employer is prevented from saying anything bad about you that will believed.
Great, thank you for clarifying that.
At one of the dates where they allege "talking to me about adhering company policy" was my 3 month review where I received a raise (I only worked there for ~10 months). Should I get a copy of my pay stubs to show that this doesn't make sense? Why would they give a raise to someone that is haven't trouble 'adhering to company policy?
when I received the appeal date, I was also included the letter that my employer sent to them saying that they are appealing because of termination for cause (specifically for inability to adhere to company policy) and then they included a timeline of alleged infractions. There are 7 dates.?
Putting the specifics into the appeal "request" is an indication that your employer has NO clue what they are doing. Look at who signed the paperwork. Do you know this person? Was this person actually present during any of the events listed? While I can't be 100% positive, it's pretty safe bet this person will be the rep, and this will be a lot of hearsay evidence, and all you need to know is be sure to object the first time you hear it, if the judge lets it in, then ok, but if they keep it out, then do it each an every time you hear more.
Quote:
Originally Posted by Ikkyu1234
Okay, got it. For the phone example, if the person who 'caught' me isn't there, I can simply say "I was not on my phone" even if they did write it down on my file but never confront me about it??
I can't tell you to lie. The judge probably won't ask you directly if you did any of the things you're being accused of because it puts you in an awkward position. If they do ask, you can always say, "that's why we're here. So the employer can make accusations and prove them." However, if you didn't do something as stated, you can deny it. If the say you used the phone on a date for a Sunday, you can say, "I didn't" if you never worked on Sundays. If there are no written warnings, that works in your favor because if you didn't know it was a rule, then you can't be held to it. Same if there is no handbook that spells things out.
Quote:
Originally Posted by Ikkyu1234
In-Person.
That's good because many employers get lazy and don't show. With in-person, there are instructions for submitting evidence and where to view it. You need to view that file to see if anything of substance gets put in there.
Quote:
Originally Posted by Ikkyu1234
At one of the dates where they allege "talking to me about adhering company policy" was my 3 month review where I received a raise (I only worked there for ~10 months). Should I get a copy of my pay stubs to show that this doesn't make sense? Why would they give a raise to someone that is haven't trouble 'adhering to company policy?
List the times and dates and when you started. I think they are going too far back in time. Remember, it's about why you were fired, when you were fired. Not because of an accumulation of offensives that stacked up.
Putting the specifics into the appeal "request" is an indication that your employer has NO clue what they are doing. Look at who signed the paperwork. Do you know this person? Was this person actually present during any of the events listed? While I can't be 100% positive, it's pretty safe bet this person will be the rep, and this will be a lot of hearsay evidence, and all you need to know is be sure to object the first time you hear it, if the judge lets it in, then ok, but if they keep it out, then do it each an every time you hear more.
Good to hear. Yes I do, the person who signed this is accountant/book keeper. He was never present for any of the events listed. He was present for my exit interview, him and the admin asst, where none of this was brought up at all. Is that a point to make?
Quote:
That's good because many employers get lazy and don't show. With in-person, there are instructions for submitting evidence and where to view it. You need to view that file to see if anything of substance gets put in there.
I could see that happening. I will call and ask if there is any evidence to view.
Quote:
List the times and dates and when you started. I think they are going too far back in time. Remember, it's about why you were fired, when you were fired. Not because of an accumulation of offensives that stacked up.
I started in Nov '13 until mid-July.
That's interesting to hear. I was under the impression, especially by the letter asking for an appeal sent, that its all about the alleged accumulations stacked up. The last offense, listed a few days before my termination, is a total fabrication. It claims they caught me messing around in the back. It says nothing else, nor who saw it or anything. It also never happened! This is crazy to me!
ALSO: When I "Object" to something, do I interrupt them and say something like (I got this online): "I object. That is hearsay. I should be able to question this person myself about what happened and show that he is not telling the truth. Please do not rely on this information in making a decision about my employment"?. Or will my objections be taken before hand to the evidence they are bringing once I review them?
Last edited by Ikkyu1234; 09-05-2014 at 08:48 PM..
Good to hear. Yes I do, the person who signed this is accountant/book keeper. He was never present for any of the events listed. He was present for my exit interview, him and the admin asst, where none of this was brought up at all. Is that a point to make??
If you are only referring to you not being told why you were really being let go, then don't bother. An employer doesn't have to tell you, and they can even make up stuff that's not true to make you feel bad. All that matters is you keep the employer from being able to prove anything or what they prove is so trivial it won't be treated as misconduct.
Quote:
Originally Posted by Ikkyu1234
That's interesting to hear. I was under the impression, especially by the letter asking for an appeal sent, that its all about the alleged accumulations stacked up. The last offense, listed a few days before my termination, is a total fabrication. It claims they caught me messing around in the back. It says nothing else, nor who saw it or anything. It also never happened! This is crazy to me!
It's because of that letter that I can tell your employer isn't any good at this. An experienced employer just says, "the determination is wrong. I want to appeal," and then leaves you in the dark as to how in the world you'll defend yourself against something you have no clue about.
Quote:
Originally Posted by Ikkyu1234
ALSO: When I "Object" to something, do I interrupt them and say something like (I got this online): "I object. That is hearsay. I should be able to question this person myself about what happened and show that he is not telling the truth. Please do not rely on this information in making a decision about my employment"?. Or will my objections be taken before hand to the evidence they are bringing once I review them?
That's more than necessary. When you hear, "I was told..." or "so-and-so said . . ." you interrupt, and say "objection. Hearsay." That's it. Most feedback says the judge says, "hearsay is allowed in an unemployment hearing, and it will be given it's proper weight." Translation: "I won't be using it in writing my decision, but so that the person testifying doesn't feel like I kept out their evidence, I'm going to listen to it." However this only applies to oral testimony.
While I'm not in your state, at the beginning of my hearing, the judge went through all the papers submitted, and those you can try to keep out at as well. In particular, you'd want to keep out "written statements," by people not appearing at the hearing. In your case, anything older than a week, try to keep that out by saying, "it's old. This can't possibly be the reason I was fired when I was." The judge may or may not buy it, but you want to shrink the employer's case down to nothing.
Okay, great. Thank you for the advice. I'm going to go in on Monday and see what evidence they have (if any, it sounds like they have no idea what they're doing by how you're describing it and that sounds like them). I will be sure to check back in to share my experience on how it went and to lurk around to help.
Just thought I'd give an update. I went into the appeals office today to look through the file. There is no evidence, just both of our statements to EDD. Their's stating that I was caught reading on my phone in the back and failure to adhere to company policy in general. No mention of who 'caught' me (just that it was not by people in HR but by "others" who "counseled" me). They then state I was given no written warnings, just verbal coaching sessions. The summary states that "clmt was dicharged due to performance. Based on available information the ER is not able to prove willful misconduct" which, if they're not providing any more evidence, shouldn't change I imagine, yeah?
I am going to go in early the day of my trial to make sure nothing new has come in. Is there a way for me to know who they are bringing in for a witness, if any?
I am going to go in early the day of my trial to make sure nothing new has come in. Is there a way for me to know who they are bringing in for a witness, if any?
You've got a good grasp of the situation. Going in early is exactly what I would do. However, you won't know who the employer is bringing until they show up.
The hearing was pushed about a week or so back, and the only reason they gave was 'for reasons out of their control'. I get there two hours early, just because parking is crazy and I wanted some time to review my notes and make sure there was no new evidence. I get there and there are 50+ pages of evidence! There was none before. I start freaking out a little bit but then release its mostly nonsense... 'notes' from a mandatory 90 day performance review, an employee handbook, a bunch of mostly useless stuff that they would later try to use against me.
The judge was extremely stoic and stern, and half time she was getting frustrated with my ex-manager. I objected to a few things, but it was always overruled. I kept my mouth shut for most of the hearing as pretty much right away I could tell this was swinging in my favor. It really came down to them having NEVER given me any kind of verbal or written warning for the allegations, a bunch of hearsay (no witness or written statements, though my ex-manager kept saying "we can all them right now!" kind of thing, which was shot down), condonation, and me having no idea my job was ever in jeopardy. I ended up using their own evidence against them, referencing the company's own handbook and one or two other things.
I am very relieved, though I feel as though I still can't let my guard down as they can appeal again. If they do appeal again, do I have to go back into court or is it just a re-examination of the evidence? Are they allowed to submit new evidence/witnesses?
Mega thanks to you Chyvan and this board!
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
