Employer Appealed, but Changed Their Story of Termination Reasoning

[innaya]

My question involves unemployment benefits for the state of: WA


I worked for the company for over 5 years. The owners of the company and my immediate manager were extremely happy with my performance. I was promoted twice, given significant raises and percentage of profit yearly. The company was doing well until Nov 2009. My employer couldn’t afford me on full time and I was asked to take temporary partial lay-off, but they asked me to stay with the company, “because I was valuable asset to the company” as they said. After four months on part-time they asked me back on full time.

After three months of being back on full time, I got fired as a result of the heated meeting, during which I was accused of being deceitful for almost 5 years, including being dishonest about my personal life. Note: I was trusted to manage company cash flow up to $5M, to translate official documents, to fly around the world to represent my Company, and to have access to the strictly confidential information. I told them that it wasn’t right to accuse like that. Then the President of the company started yelling at me telling that he should’ve fired me long time ago. I felt defenseless and I told him “Fire me”. After this he lost his composure and yelled “get the hell out of there”. He ordered my manager to make sure I packed and to escort me out of the office.

I applied for UI. In the official required documents from UI office, my employer indicated following for the reason of termination as “No final incident and no misconduct. Employee asked to be fired”. UI office contacted me over the phone to interview about the situation and I told everything what happened. A week after the interview, I received a letter from UI confirming that I was approved for Unemployment benefits and started to receive compensation immediately after this letter.

Almost a month after me being on unemployment, my employer filed an appeal based on a different reasoning - inexcusable tardiness and insubordination. They came up with the very detailed records of my working hours that included every time I was 5-10 min late or spent more than 10 min in the bathroom. However, their records didn’t show when I was leaving work. I’d usually leave work well after my 8 hrs were up. I was on salary and quite often I worked overtime. They also enclosed testimonials from two people (the President of the company and his wife, who were present at that meeting), in which they point out to the fact of insubordination and defiant behavior. Important to note that I wasn’t aware of the issues the employer filed as the proof for appeal as I was never given any warnings. There was a third person at that meeting, my immediate manager, but he quit because of the unbearable workload after I was fired.

I have a phone hearing scheduled in a week. I am a bit nervous about it. Do I need a lawyer in my case? What can I present to my defense? I will be very thankful for advice.

[PattyPA]

What you want to do is emphasize that-

1. You were never informed that your attendance was a concern, never been counseled about it, and never informed that it could lead to termination. Leave out the part about working past your regular time; exempt (I'm assuming by "salaried" and the description of what you did that you were exempt) employees are expected to work whatever hours are necessary to do the job, but are not exempt from the company's attendance policies, so don't mention that.

2. You felt that the "I should have fired you long ago" comment was a prelude to "you are fired", and that the only reason you said "Fire me" was because you were not about to resign voluntarily and build a barrier to you receiving unemployment.

Other responders may have other suggestions, so check back.

[Mr. Knowitall]

Leave out the part about working past your regular time; exempt (I'm assuming by "salaried" and the description of what you did that you were exempt) employees are expected to work whatever hours are necessary to do the job, but are not exempt from the company's attendance policies, so don't mention that.

There is, of course, a question of whether this employer had a policy beyond its standard workday. If they have a clear, enforced policy of requiring all workers to be at their desks within 1.5 minutes of the start of the official business day, take no more than 200 seconds in each of no more than two trips to the bathroom, etc., then sure, they can point to deviations as violations. But if they have no formal policy or if the policy isn't enforced, I can't see them succeeding in a claim after five years that an employee's uncorrected, consistent approach to the start and end of the workday and to bathroom breaks was misconduct. An informal understanding can tie into that, "It was understood that I could occasionally come in five or ten minutes 'late', because they knew I would be there one or two hours after everybody else went home at the end of the day."

[innaya]

Dear Mr. Knowitall, thank you for your reply.
Do you know if it will help to provide any evidence on the first hearing? By evidence I mean positive testimonials from my immediate managers and former co-workers. Or I should keep it simple and unflustered?
Again, many thanks for advice.

PattyPA, thank you for your advice. I find it very valuable.

[PattyPA]

If this just a fact-finding interview with just you and the state, no.

And if this is a hearing on appeal, generally speaking, witnesses must appear in person or be on the phone call (and not on your line, but where the state can call them directly) so that they can be sworn and questioned. Written statements (even notarized) are usually not permitted nor given any weight.