Many people when they are discharged claim they have been discriminated against but almost never have a solid case for proof in the eyes of most agencies and attorneys.
The main one I will be covering is retaliation. This would usually take place for attempting to report a behavior or incident that has taken place against someone. If you previously experienced some sort of action or behavior towards you that was unwanted and reported it to a supervisor, human resources, manager, etc then you have just engaged in a protected class activity. What this means is that if anything takes place after this event, such as retaliation then you would have a solid legitimate case for discrimination due to retaliation.
Usually this retaliation would take place shortly after you have made your report regarding an unwelcome action. This is the time when writing down each and every negative action that is said or done to you will be important. Typically, after reporting the person suddenly received multiple warnings for minor issues or for an issue others have done without being warned. Then the employee would be discharged on an unrelated matter and the employer would consider the employee discharged due to insubordination, failure to follow the employer’s policies, etc.
At this point you could seek legal advice regarding retaliation, and contact your state and federal agencies so you have recourse against an employer who decided to retaliate against you.
My wife was recently offered and accepted a job in California. I plan to quit my job and move to be with her until I can find another job can I collect unemployment insurance?
I have been asked this question the most I believe out of all unemployment topics. This is a fairly simple hearing type to explain. Quitting a job by most states view must be for a compelling reason, something that would compel an average person in the same situation to make a similar choice.
In this case, the person quitting would be doing so for a reason completely unrelated to the employer. The reason for quitting would be due to personal reasons. This would not be considered reasonable and good cause for quitting when it comes to unemployment benefits which would mean you would not qualify.
This is an actual unemployment hearing decision letter from Florida with Florida state laws applied as you will see. This is mailed out to both parties, the claimant and the employer once a hearing is finished. It usually arrives in about 10 days or so.
In this decision the claimant was initially qualified for benefits but after the hearing had taken place he was found not to be qualified for benefits. In this case it appears the claimaint(employee) had been given a few warnings and failed to correct their actions or behavior. The warnings were issued fairly close together which makes them more relevant to the final reason for firing the person.
If you have any questions about how to read your own decision letter or assistance with anything unemployment related contact us. Email Me
Findings of fact: The claimant began working for the employer in September of 2007 as a first level mechanic at a bowling center. The claimant was aware of a company policy that required employees to meet business objectives or goals. The claimant had been warned on May 18, 2008 for not completing his assigned tasks and spending time in the front of the business. The claimant received a second warning August 22, 2008, for not completing his assigned tasks and spending time up front. The claimant’s final warning was issued on November, 11, 2008 for arguing with a fellow employee in the front of the building and punching a locker with his fist. The claimant was counseled that the next step would be discharge. The claimant was discharged on December 2, 2008, for spending time up front with other employees.
Conclusion of law: The law provides that a claimant who was discharged for misconduct connected with the work will be disqualified for benefits. “Misconduct” includes, but is not limited to, conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of an employee, or carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer.
The record shows the claimant was discharged. The employer presented competent evidence to show the claimant was warned prior to being discharged and failed to improve or correct the behavior after warning. When an employer establishes prima facie evidence of misconduct, the burden shifts to the employee to come forward with proof of the propriety of that conduct. Alterman Transport Lines, Inc. v. Unemployment Appeals Commission, 410 So.2d 568 (Fla. 1st DCA 1982). The burden of proof in an employee discharge matter is initially upon the employer to prove misconduct. See Donnell v. University Community Hosp., 705 So. 2d 1031 (Fla. 2d DCA 1998). When the employer meets that initial burden, the employee is required to demonstrate the propriety of his/her actions. See Sheriff of Monroe County v. Unemployment Appeals Comm’n, 490 So. 2d 961 (Fla. 3d DCA 1986). The employer shifted the burden to the claimant to come forward with evidence to explain the propriety of the actions. The claimant did not establish any compelling reason for his continued, repetitive failure to comply with the employer’s policy. The claimant is thus subject to disqualification.
The law provides that benefits will not be charged to the employment record of a contributing employer who furnishes required notice to the Agency when the claimant was discharged for misconduct connected with the work.
Decision: The determination dated February 23, 2009, is REVERSED. The claimant is not qualified for benefits. The employer’s tax account will not be charged.
This type of issue is more complex than it might seem. Drug tests work the same in an unemployment hearing as they would in a regular court hearing with a similar evidentiary requirement. Employers can fire people on suspicion of drug use even without a drug test based on most states (right to work) law that means you can be fired at anytime for any reason legally.
If the claimant (employee) has denied drug use then it is up to the employer to prove their case. As a side note, one of my favorite things when an employer accused an employee of smoking marijuana, I always asked, “how do you know it was marijuana”, either the employer goes silent or stammers about how “everyone knows how it smells” rather than admit they know how it smells from smoking it themselves.
Back to the issue, in order to prove the claimant had used drugs, the person who conducted the test, and the lab technician who physically ran the tests must testify at the hearing. The odds of that actually happening are none. Hearsay is allowed in many unemployment hearings but as far as proving drug use it isn’t. Since the employer cannot establish a chain of custody, how the test was conducted or anything related to the test with absolute certainty then their entire assertion that the claimant used drugs is worthless.
The only other topics that would be covered during the hearing simply because they would be required at this point is that the employer had a drug testing policy, and that the employee was made aware of it when they were hired. Being made aware of it means singing a piece of paper, not simply being told “we drug test”. Oral policies at any employer are worthless.
After employers lose this type of case they always become angry since they always believe that whatever they say should be accepted when they make no attempt to understand how laws work. If a claimant sticks to their story that they never used drugs/alcohol then they would more than likely qualify for benefits.
Can I collect unemployment benefits if I was terminated due to getting arrested? From nearly everyone I spoke to and every website I researched, the answer was a resounding NO. The reason everyone gave was that the employer most likely made the firing decision based on the absences rather than the arrest.
The real answer is yes it is possible to qualify for benefits after being fired for an arrest. Employers can decide I they want to discharge you over the absences received while incarcerated, typically more than an overnight stay, or if they just do not want someone who was arrested working for them.
This type of issue will almost always result in a hearing, either from the employer filing an appeal since they do not understand how unemployment works, or from the claimant being denied initially. This type of hearing is easier to determine than most might think. If the claimant was arrested, then released from jail, and contacts the employer to find out if they still have a job then this will be in the claimants favor. If the claimant makes any type of attempt to maintain employment after being released from jail it greatly improves their case. In order to determine benefits eligibility the case must have been closed, i.e.: if the claimant went to court and the judge made a final ruling. If the claimant was found not guilty or if the case was dismissed, and made any attempt to contact the employer immediately after they were released, then their firing was not due to misconduct. What employers refuse to understand is that simply being arrested does not A. mean you are guilty, and B. that the claimant cannot qualify for benefits.
If on the other hand, the claimant was found guilty then he or she would be personally responsible for the absences they received while they were incarcerated. This would mean they were discharged due to misconduct and would not be eligible for benefits in most states.
The Senate attempts to Help the U.S. avoid the negative ramifications of falling off the fiscal cliff:
The 2012 calendar year is over but many of the problems that dogged the U.S. economy then, continue to stoke concerns today. The U.S. economy did go over the fiscal cliff when the old year expired, but congressional leaders are working to push back the hands of time. Hours into the new year, the Senate achieved a bipartisan deal to help the U.S. avoid the pitfalls associated with the imminent tax hikes and spending cuts scheduled for 2013.
On New Year’s day, the Democratic controlled Senate voted 89-8 to raise some taxes, but to protect the middle class. President Obama responded by saying the Senate did the right thing for the country.
Unemployment Benefit Extension to Help Millions of Americans:
The bill will help extend unemployment insurance for millions of Americans. Specifically, the bill would extend jobless benefits for the long term unemployed for another year and would cost roughly $30 billion. The Senate approval was a win for the Democratic majority in the Senate. The House approved the fiscal cliff deal with votes of support totaling 257. The President has said he will sign the legislation.
Question: If fired and denied unemployment due to revoked drivers license, are there circumstances that will get you an appeal and even win it?
First, and as I always state, regardless of what you think always apply for benefits if you want them. The only way to know for certain is to apply.
If your job consisted of being required to drive frequently such as a truck driver then most likely your employed considered a valid driver’s license as a primary requirement of your employment. If you lose your license you always need to notify your employer and do not keep secrets from them. It is always a good idea to see if it would be possible to be assigned to other work assignment or position that did not require driving until you regained your license.
The most important thing to remember is to always make every attempt to keep your job. One of the things the person holding the hearing want to know if you made attempt to regain your license such as talking to the DMV, taking classes, fighting it in court etc. This will show you made a substantial effort to maintain your job instead of just letting things happen to you.
You must show that your loss of a driver’s license was unintentional and that you attempted to obtain a work only drivers license.
This type of case can get tricky and the details matter. The way you word things to the hearing officer matter to determine whether you receive unemployment benefits or not.
Applying for unemployment with workers compensation as the main issue is an interesting topic. Typically both parties, the claimant and the employer each have attorneys representing them. Each attorney typically only specializes in workers compensation since it is such a complex issue. Normally neither attorney has any idea how unemployment hearings work since it is so specific and different regarding legal procedures and processes.
When the hearing is held it is normally discovered that the employee has settled a worker’s compensation claim with the employer and is not attempting to receive unemployment. The employee is usually coerced to sign a settlement to receive workers compensation also stating they are quitting working for the employer. So legally the employee made the decision to quit. The employer did not state they would fire the employee if they did not sign the document stating they quit. This is quasi legal and an entire other issue when an employee is being forced to quit even though they would not be allowed to continue working for the employer to receive a worker’s comp settlement.
Back to the issue of benefits, the advice in this scenario is to first speak to your attorney about refusing to tell the employer you quit simply to settle the workers comp case. Either make the employer act first, or put in writing that the employee is being forced to quit to receive the settlement. Typically in hearings the claimant is completely unaware they are being manipulated out of qualifying to receive unemployment benefits by quitting their job. The majority of the time the claimant will not qualify for benefits since they did not establish a credible reason for quitting.
Many people without regular employment or part time employees choose to work for an additional employer during the holiday seasons. The employees work a determined period of time and then are discharged from the employer with no additional work available. The employees in this situation may be able to qualify for unemployment benefits. The person must have an established base period of employment, have earned a certain amount of money, and actively seeking additional employment. Also, if someone was working a full time position and seasonal employment, when the seasonal employment ended they could qualify for benefits. The only sure way to find out if you can qualify for benefits is to apply. There are certain criteria that must be met but in many cases the separated employee can qualify. When no additional work is available from the employer the employee is then discharged due to no fault of their own. The burden of proof in this case would be on the employer to show why the employee was discharged. As always you will never know if you can qualify for benefits unless you apply, but it is possible to qualify in many situations.
Abbot and Costello rendition
COSTELLO: I want to talk about the unemployment rate in America.
ABBOTT: Good Subject. Terrible Times. It’s 8.3%.
COSTELLO: That many people are out of work?
ABBOTT: No, that’s 18%
COSTELLO: You just said 8.3%.
ABBOTT: 8.3% Unemployed.
COSTELLO: Right 8.3% out of work.
ABBOTT: No, that’s 18%.
COSTELLO: Okay, so it’s 18% unemployed.
ABBOTT: No, that’s 8.3%…
COSTELLO: WAIT A MINUTE. Is it 8.3% or 18%?
ABBOTT: 8.3% are unemployed. 18% are out of work.
COSTELLO: IF you are out of work you are unemployed.
ABBOTT: No, you can’t count the “Out of Work” as the
unemployed. You have to look for work to be unemployed.
COSTELLO: BUT THEY ARE OUT OF WORK!!!
ABBOTT: No, you miss my point.
COSTELLO: What point?
ABBOTT: Someone who doesn’t look for work, can’t be counted with those
who look for work. It wouldn’t be fair.
COSTELLO: To who?
ABBOTT: The unemployed.
COSTELLO: But they are ALL out of work.
ABBOTT: No, the unemployed are actively looking for work… Those who
are out of work stopped looking. They gave up. And, if you give up,
you are no longer in the ranks of the unemployed.
COSTELLO: So if you’re off the unemployment roles, that would count as
ABBOTT: Unemployment would go down. Absolutely!
COSTELLO: The unemployment just goes down because you don’t look for
ABBOTT: Absolutely it goes down. That’s how you get to 8.3%. Otherwise
it would be 18%. You don’t want to read about 18% unemployment do ya?
COSTELLO: That would be frightening.
COSTELLO: Wait, I got a question for you. That means they’re two ways
to bring down the unemployment number?
ABBOTT: Two ways is correct.
COSTELLO: Unemployment can go down if someone gets a job?
COSTELLO: And unemployment can also go down if you stop looking for a
COSTELLO: So there are two ways to bring unemployment down, and the
easier of the two is to just stop looking for work.
COSTELLO: I don’t even know what the hell I just said!