Unemployment Hearing-What if Employer does not show?

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Latest post 02-15-2011 5:16 PM by Drew. 15 replies.
  • 02-14-2011 8:04 PM

    • jay78
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    Unemployment Hearing-What if Employer does not show?

    I was denied unemployment by the UC even though my employer said they were not going to oppose it.

    I am assuming that, based on the not-so-detailed summary that is required as reason for termination, the examiner felt i had violated the willful misconduct clause.

    Anyway, I have appealed and in the event that nobody from my work company shows up, is it an automatic win, or do I still need to present my case to the referee and try to convince him/her that I did not intentionally commit willful misconduct?

  • 02-14-2011 8:25 PM In reply to

    • cbg
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    Re: Unemployment Hearing-What if Employer does not show?

    UC is NEVER an automatic win, regardless of who does or does not show up. If the employer does not come in, then the adjuster makes the decision on the basis of the information they have. Since you have already been denied when the employer did not contest, evidently the adjuster feels that at least initially, it appears that you committed misconduct. Whether you can convince them otherwise remains to be seen.

    FYI, you can still be denied even if the employer does not contest. I have had employees who were denied when I did not contest, simply because the reason they were terminated disqualified them for benefits.

  • 02-14-2011 8:56 PM In reply to

    • Drew
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    Re: Unemployment Hearing-What if Employer does not show?

    Its not that common an employer is a no show.

    You need to focus on the clear requirements of your state law as to the issues of misconduct  as raised by employer being or not being firing for cause--it can be very rule and case decision bound and far from common sense..you gotta be prepared to undo or discredit the reasons raised by employer and show it was a mere firing ---and know something about "hearsay rules" so that  firm has a problem to just send in anybody and presume to have them testify as to things  they didn't  see or participate in first hand.

    And use some sense to to get into new issues not originally part of the  claim against you--  and to maintain a high degree of credibility--and avoid mudslinging.

     

    And frankly, if you admit to being fired for cause--like no show, absent, theft of property , loss of required license  or whatever it is , the reasons speak for themselves--employer need not show.



  • 02-14-2011 11:58 PM In reply to

    Re: Unemployment Hearing-What if Employer does not show?

    jay78:

    I am assuming that, based on the not-so-detailed summary that is required as reason for termination, the examiner felt i had violated the willful misconduct clause.

    It would help if you explained the reason for the denial that was stated in the denial notice that you received from the UI agency.

    Quote it word for word and we may be able to find some resource material that might be helpful to you.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-15-2011 7:48 AM In reply to

    Re: Unemployment Hearing-What if Employer does not show?

    The employer is permitted to appear and present evidence even though it may have told you it would not contest your claim.

    In discharge cases, the employer has the burden of proving willful misconduct.  That can be difficult to do without coming to the hearing, but we do not know what information you and possibly the employer provided to the service center.

    Your chances of winning will be much improved if you have a lawyer with you at the hearing.

  • 02-15-2011 7:58 AM In reply to

    • Drew
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    Re: Unemployment Hearing-What if Employer does not show?

    Totally agree--if you use labor law counsel your odds go way up --and if one party goes to gunfight with a rubber knife and the other goes with a paid gunfighter  --well you know the odds of that one!

    But a good lawyer may not be able to save you if you did  just about everything wrong!

    Give us some details as the issues and charges (w/o names of course!)



  • 02-15-2011 11:10 AM In reply to

    • jay78
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    Re: Unemployment Hearing-What if Employer does not show?

    Here is the Reader's digest version of my termination:

    I was a Manager in the department.  My supervisor, an upper level manager, showed me a video compilation that he created using a free online video service where you can copy and paste face photos of people onto cartoon type character bodies.  These compilations are then animated and set to music.  He did a few of them using photos of our workers in the department and said he wanted to show them at our upcoming quarterly meeting, as a way to have fun within the department and boost morale.  The video compilations he made showed our employees in dance sequences such as, in Mexican attire, in a disco scene, and one in a rock music scene.

    He showed me how to create the videos when i asked how, so i did the same thing.  In addition to those aforementioned videos, there was one on the site titled "chippendales", that had male characters without shirts and in black pants doing a dance sequence.  i compiled one with that video, and while doing it, showed it to one of the workers.

    The supervisor who showed me how to compile the videos, and who did his own set, called me in and said that he was allright with me compiling the other videos, but in his mind, the chippendale one was a little too suggestive due to what chippendale represents.  As a result of this i was terminated for Innappropriate Behavior.

    On the UC claim form, my denial was based on those facts.

  • 02-15-2011 11:31 AM In reply to

    Re: Unemployment Hearing-What if Employer does not show?

    jay78:
    in his mind, the chippendale one was a little too suggestive due to what chippendale represents.  As a result of this i was terminated for Innappropriate Behavior.

    Well, I don't see that as rising to the legal definition of misconduct as it pertains to unemployment benefits but you haven't provided the state's reason yet. 

    jay78:

    On the UC claim form, my denial was based on those facts.

    That doesn't answer the question about what the reason for the denial was.

    You've described the incidents that resulted in the denial.

    But you haven't quoted the reason given on the denial.

    What, exactly, does the denial notice say? Word for word, please.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-15-2011 11:34 AM In reply to

    • Drew
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    Re: Unemployment Hearing-What if Employer does not show?

     

    So you and your boss were compiling supposedly humorous cartoon videos to show at a quarterly  meeting  and you get fired because your cartoon version is deemed as inappropriate behavior in context of for cause.

    I'm sorry but I don't buy that line of logic--cartoons with faces on them might be dubious taste --perhaps very dubious taste-but whether that rises to level of Innappropriate Behavior  under your state UC laws is up for debate. 

    Frankly I think there are good odds that the entire adventure was in dubious taste and that as low person on the pole you got tossed under the bus to save the boss!

    Personally I'd make a beeline to get counsel ASAP.

    And one of the things I'd want produced is ALL the videos produced by you and you boss and I'd want to drag boss to the hearing. I'll just bet his job goes on the line!

    If you fail to get counsel I'll bet the enemy postures it like you made X rated videos of company employees designed to hurt them along sexual preference lines and you were guilty of sexual harassment !

    Being stupid is not proper cause to be fired for cause--they need to show more than that--but right now its too sensitive a potato to handle w/o skilled counsel!

     



  • 02-15-2011 11:42 AM In reply to

    • Drew
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    Re: Unemployment Hearing-What if Employer does not show?

    The issues in CA probably focus on "gross misconduct"  or actions INTENDED to harm employer---but details are way beyond me.

    Another posts a summary:

    "

      In California, to NOT receive unemployment, an employee must have been fired for "gross misconduct."  An employee fired for being a dumb ass, lazy, negligent, poor performer, or "light" misbehavior should still be entitled to unemployment.  The EDD, NOT your employer, determines if your conduct "sunk" to the level of "gross misconduct."
      Generally, "gross misconduct" means a willful act that either caused, or could have caused, the employer to suffer significant injury or harm.  For example, imagine the employer catches one of its truck drivers operating a Company vehicle while intoxicated.  Even though he did not cause an accident or otherwise get caught by the police, the employee is fired.  Most likely the EDD would consider the employee's drunk driving gross misconduct warranting a denial of unemployment benefits.
      Other examples of gross misconduct might be: 1) selling drugs at the workplace; 2) stealing employer property or money; 3) assaulting a coworker; or 4) accidentally causing a building to burn down.



  • 02-15-2011 1:03 PM In reply to

    Re: Unemployment Hearing-What if Employer does not show?

    Did I miss where the OP told us he was in California?

  • 02-15-2011 1:12 PM In reply to

    • cbg
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    Re: Unemployment Hearing-What if Employer does not show?

    Particularly where he posted on the Pennsylvania board?

  • 02-15-2011 1:30 PM In reply to

    Re: Unemployment Hearing-What if Employer does not show?

    PattyPA:

    Did I miss where the OP told us he was in California?

    cbg:

    Particularly where he posted on the Pennsylvania board?

    You guys beat me to those questions.

    The OP has a previous post also on the PA board:

    http://community.lawyers.com/forums/p/33935/168966.aspx#168966

    Perhaps the OP will settle the matter for us by confirming PA.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-15-2011 1:43 PM In reply to

    • Drew
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    Re: Unemployment Hearing-What if Employer does not show?

    Sorry--I blew it as to state--its PA--the words are not quite the same in PA--is just worded as "misconduct"  but same problems and issues for employer to make the grade --and OP better get seasoned  PA labor lawyer if he wants to level the playing field!  

    "The established test for what constitutes willful misconduct is set forth in this excerpt from a 1977 Pennsylvania case called UCBOR v. Vereen:

    As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. "

     

    BUT I would not walk in these fields  w/o a skilled guide-if you step in quicksand or on a  landmine--you may not get a second chance!  At least in context of your post  and assuming the video is merely a bit tasteless and not flat out gross or intended to harm/insult   and you didn't single out some  individual for some  sexual preference  by posting his or her picture  I think with skilled counsel you can make employer  work very hard to make the grade--and put boss in a very uncomfortable position to try to make the grade-I'll bet some of his videos could be less than funny to the pictured individuals and if enemy is a no show your odds go way up.

    I think your odds rest with being smart enough to use good counsel! 

     




  • 02-15-2011 4:32 PM In reply to

    • jay78
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    • Joined on 04-24-2004
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    Re: Unemployment Hearing-What if Employer does not show?

    Thank you all, for the advice. 

    To Adjuster Jack:

    Here is the findings of fact:

    1) Claimant was last employed on 12/22/2010.

    2) Claimant was discharged for: Inappropriate behavior.

    3) Claimant was working at the time of the incident that caused his separation.

    4) Claimants actions showed a willful disregard of the Employers interests.

    5) Claimants reason(s) for his actions that caused the separation was:  He thought it was OK and it would boost the morale of the department.

    DETERMINATION:

    Claimant is ineligible for benefits under Section 402(e) of the PA UC Law.

     

    (MY FOOTNOTE:  For fact #3; I was on my lunch break during the time that i compiled the video, and as standard practice w/ the company, we are allowed such usage of the computer during that time.)

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