Unemployment Appeal - Fired for "Misconduct" Regarding Falsifying Time Card

[MiguelFromChino]

My question involves unemployment benefits for the state of: California

I worked for a company for over 5 years. I loved my job and everything was O.K. with some issues here and there until a manager was hired to supervise me. I did not have anyone managing me for over 3 years and once a manager was hired my job went to the crapper.

This manager started off friendly at first but after he settled in to the job he began to micro manage everything I did. Let me list a few things I made note off. Bare with me this is going to be long:

Hired 9-6-2006

Worked under I.T. Manager, J.S. Never had any issues or problems of any sort. J.S. leaves the bank during the summer of 2007 and all duties now fall upon my shoulders, including all duties I had no experience in or duties I never received any training for, along with other duties that R.M., Compliance Officer, saw fit to unload “dump” on me such as policy and procedure writing, not technical duties.
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3-25-2010 D.B, made a comment in front of S.P and I that he “would kill me” if I didn’t have the SEC 10K filed on time. A job that is NOT I.T. related but ended up as my job duties. I first received the 10K from S.P. on Wednesday, 3-24-10. I need an average of 5 work days to Edgarize and prepare a 10K for filing while performing all my other I.T. related job duties. I spent about 32 hours to work on the 10K document, including Saturday 3-27-10 to get it filed by Monday 3-29-2010.
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4-2-10 leaving work for the day, called in by D.B. and C.M, I am told that I would be held responsible for bank MRA regarding Risk Assessment, so consultant K.B. is now promoted to IT Manager, and I must vacate my office and report to K.B. Clearly they used this so as not to promote me to I.T. Manager. The project in question was when I was assigned the task of creating the bank wide “Information Security Program” Risk Assessment. A task that should have been assigned to ALL department heads. The bank received a bad review by the Federal OCC Examiners on this project causing us to receive a Matters Requiring Attention (MRA) that later I was to take FULL blame for when I was asked in a meeting with D.B. and C.M. to move out of my office and report to K.B. as my I.T. Manager.
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4-12-10 R.M. asks me to stay during my lunch time "to reset network password", she would not allow me to leave for lunch today. She begins to think she can order me around and manage my duties.
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9-6-2010 I was rushed via ambulance and hospitalized from chest pain, possibly anxiety attack from being too stressed out from work. Going forward from this point on I begin to take better notes of harassment at work.
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9-17-2010 K.B. makes the following comment, “Why does D.B. cringe every time I mention your name? I reply, “Because of R.M. and her constant crying to D.B. that I wasn’t working on her projects which were not related to my job skills in I.T. [Information Technology].” The project in question was when I was assigned the task of creating the bank wide “Information Security Program” Risk Assessment. A task that should have been assigned to ALL department heads. The bank received a bad review by the Federal OCC Examiners on this project causing us to receive a Matters Requiring Attention (MRA) that later I was to take FULL blame for when I was asked in a meeting with D.B and C.M. to move out of my office and report to K.B. as my manager.
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3-4-2011 K.B. has completed my Bankers Edge testing for the entire 2011 year, common practice for other employees to complete other employee’s tests. Every employee is to complete their own individual testing. This would not be looked at very positive by the Federal OCC Examiners as we would not be in compliance with employee training to guard customer information.
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7-5-2011 K.B. called me about getting together once a week to discuss what I am working on, basically to micro manage me. He said D.B. keeps asking what I’m working on. After 4 years and 10 months, now they want to begin micro managing me. This is the start when K.B. begins monitor everything I do at work.
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9-30-2011 K.B. makes comment to L.M., “Miguel is in his second office” referring to me being in the men’s bathroom. K.B. increasingly monitors and micromanages my activity as looking to catch me making a mistake of some sort. During my breaks in the kitchen, K.B. will hover around. I exit the men’s bathroom and frequently I find him waiting for me.
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10-25-2011 K.B. asks me to sign “job description” without having time to review it. I made the comment, “I haven’t had my attorney review the fine print” jokingly.
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10-27-2011 K.B. comments as he leaves for the end of the day, “What’s up chief? Putting in some O.T.?” and laughs. Referring to being on the hourly clock schedule and not allowed to work overtime without permission from him first.
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11-1-2011 R.S. pointed out to me that nothing is kept private at the morning meetings on why an employee is out. I missed work the day before on Monday, 10-31-2011 to go to my bank for a replacement debit card and to the DMV for a replacement driver’s license after both were stolen the night before on a Sunday. K.B. insisted I take care of such activity on my own time (after work or weekends) and not during company time. I told K.B. why I would be out that day from work and he tells all employees why I am out during morning meeting. I can’t trust him to keep anything personal or confidential.
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11-1-2011 As T.T. walks out the back door K.B. comments, “Where the **** is she going leaving her PC unlocked?” I reply “What?” as I was shocked by his choice of words. K.B., “Where’s your neighbor going?” I reply, “I don’t know.”
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11-1-2011 waiting for me outside of the bathroom at the end of the work day is K.B., “What’s up chief. Getting ready to clock out?” Making sure I clock out before incurring any overtime.
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11-14-2011 during morning staffs meeting complaints from staff about how cold the building is are voiced. D.B. complains about staff touching the thermostat, places a sign “do not touch.” D.B. will adjust thermostat, staff asks “What do we do when you are not here?” D.B. replies, “Wear a sweater.”
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11-18-2011 J.H.’s birthday in kitchen, I’m washing out my cup, K.B. reaching for a hand towel from the dispenser and says, “You know what, I bet you D.B.’s son put these in upside down.” I say, “Oh, yeah?” K.B., “Yeah, he’s the only nit wit that would do something like that.”
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11-22-2011 8:07 a.m. Preparing for monthly staff meeting, having trouble contacting Rancho branch, rush upstairs to make phone calls from there when D.B. reprimands me in front of staff by saying, “You really need to have this done sooner!” I did not appreciate his tone and I felt very anxious after that comment, my heart pounding fast.
J.F. compliments me for a good meeting, going without a hitch, no disconnect, no running up and down the stairs to re-establish branch communications.
A.A. asks me to change light bulb in women’s bathroom then tells me I did a great job with the meeting.
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12-19-2011 9:00 a.m. During a meeting with K.B. he discusses items that I need to work on during the week and he mentions the following, “We should move the Terastion to the HQ server to hide it from the auditors. We should do the same with the DRAK and also disconnect H04 and H05 to hide those as well from the auditors.” Auditors that perform a test penetration report that is later reviewed by the Federal OCC auditors for the safety and soundness of guarding customer information in the I.T. department.
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1-27-2012 D.B. holds a meeting with J.S., R.C., K.B., D.B.’s son and I to create a MIS Task Force to develop a system that D.B. told the Federal OCC auditors was already in place in better monitoring the Loan department. D.B told a “white lie,” the system IS NOT in place.
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3-15-2012 I clock out at 5:02 p.m., at 5:04 p.m. my desk phone rings, K.B. calls me and says, “What are you still doing here?” I reply, “I’m leaving now.” I felt so harassed!
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3-16-2012 I hand K.B. my timesheet in his office as he hands me a video security printout photo and my time hassling me about arriving 6 minutes late from lunch on 3-15-2012. THIS IS WHERE I MADE A MISTAKE IN POOR JUDGEMENT THAT GOT ME FIRED. FOR FALSIFYING MY TIME BY USING MY CELL PHONE TO CLOCK ME IN REMOTELY AS I DROVE BACK TO THE OFFICE FROM LUNCH. STUPID MISTAKE.
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This kind of behavior by K.B. is pervasive, creating a hostile work environment for myself and others within the company.
K.B. moves me from hourly to salary during the period of November1, 2010 to September 30, 2011. A change that would later save the bank from paying me to work overtime and a weekend to move our main office from our old building to our new current building. I was moved back from salary to hourly when the bank discovered that I was improperly classified. No mention was made about compensating me for overtime.
The bank makes me work overtime without pay at company mixers and shareholder meetings. In January 2012 I was asked to work a shareholder meeting and was compensated for the first time in all my years working for this bank. Why pay me for this ONE time and NOT for all the other times I worked OVERTIME?

TERMINATED: 4-13-2012

K.B. became my worst nightmare at work.

So now how do I fight at my appeal coming up on Tuesday, June 26th, 2012?

[cbg]

THIS IS WHERE I MADE A MISTAKE IN POOR JUDGEMENT THAT GOT ME FIRED. FOR FALSIFYING MY TIME BY USING MY CELL PHONE TO CLOCK ME IN REMOTELY AS I DROVE BACK TO THE OFFICE FROM LUNCH.

And this, right there, is legal and justifiable grounds to terminate you.

[MiguelFromChino]

Thank cbg, I know where I went wrong.

NOW, I need to know how to fight this and appeal?

Please, only reply if you have an angle or plan of defense that I can use to fight.

[Mr. Knowitall]

There you go, cbg - no answer wanted unless it's what he wants to hear - so do you have a rabbit in that magic hat of yours?

[cbg]

Actually, I do. At least a small one.

The UI office does not want to hear 95% of what you have posted. They do not want to hear how you were mistreated or how your boss micromanaged you and you didn't like it or what things your employer did wrong.

Since you were fired for a legal and valid reason, the ONLY thing that is going to have any significance is whether or not you knew that what you did was a firing offense. If you can verify that there is no written policy against clocking in by phone when you are not really there, that you (or others) had done so before, had not been warned about it or told not to do it again, then you MIGHT have a shot at unemployment. Your position is weak because quite frankly, you should have known without being told that this was not acceptable behavior. But the only thing the UI office cares about is the reason you were fired. Not all the extraneous flotsom you flooded this post with. You need to keep to that issue and none other, and make it clear that you had no reason to believe that you would be fired for this as opposed to, say, a warning.

As one of my colleagues points out, often the person who loses the unemployment claim is the one who brasses off the claims adjuster the most. You want to make sure that person isn't you, and trying to get irrelevant information into the record is a good way to brass off the adjuster.

It's not a sure thing but it's the only rabbit in my hat.

[MiguelFromChino]

I'm not trying to be rude on this site. I just seek possible plans of defense.

In a legal system that gives people winning judgements of millions of dollars for burning yourself over a cup of HOT coffee why can't I... an individual who had to put up with years of HARASSMENT be found innocent of my dilemma.

I seek a winning plan of defense.

[cbg]

Obviously you do not know or understand all the details of the hot coffee case.

You have not posted anything that meets the definition of illegal harassment. Being micro-managed may not be my favorite style, either, but it is NOT even remotely close to anything the law would consider harassment.

Please read my last post. It's the best defense you're going to get.

[MiguelFromChino]

cbg... you got the wheels in my head turning. This is actually helping me focus. All "flotsom" aside let me post these details of my firing:

This is what is says on the EMPLOYEE COUNSELING FORM I signed the day I was fired:

"Noted Deficiency: Circumventing security controls and falsification of an official Time Link record.
Specific Incident or Situation: On March 15, 2012, at approximately 3:06PM, employee [MiguelFromChino] arrived through the rear entrance of [ACME company], after being clocked in from lunch at 3:00PM, six minutes before he entered the building. This same day [MiguelFromChino] was asked by his supervisor how the timing of this event could be accurate, he replied that he had used LogMeIn software to access his PC from his smart phone, in order to clock in from lunch, before he entered the building. This fraud and resulting trust issue it creates was totally needless. This is 1) an incident of altering and falsifying your time record; and 2) a clear violation of the Information Systems Security Policy, Section 25. Internet Access and Acceptable Use Policy; Security: Any employee who attempts to disable, defeat or circumvent any [ACME company] security facility will be subject to immediate dismissal. These incidents result in the termination of your employment, effective today, April 13, 2012."

Here is what the Information Systems Security Policy says:

"Security
[ACME company] has installed an Internet firewall to assure the safety and security of [ACME company]'s networks. Any employee who attempts to disable, defeat or circumvent any [ACME company] security facility will be subject to immediate dismissal."

Here is what the Employee Handbook says:

"Time Records
Non-exempt staff members are required to sign in and out of the time keeping system to record the Daily Attendance Record for review and approval by their immediate supervisor. Attendance Records are official [ACME company] records required by law and are not to be altered. Should an employee fails to sign in or out at the proper time, the supervisor will adjust the time accordingly."

cbg... using your logic here I could say that 1) the Information Systems Security Policy speaks of "an Internet firewall" being "disabled, defeated or circumvented" which I did NOT touch in this case; never did I touch the "Internal firewall" so I should NOT "be subject to immediate dismissal" and 2) I never "altered" my time record; I simply sign in through my smart phone while sitting in the parking lot. There is no wording that "altering" time records will get you fired. After all my supervisor having all this knowledge of the incident did go ahead and APPROVE my time record.

cbg... do you think this angle will work?

- - - Updated - - -

I forgot to mention that K.B is my manager/supervisor who also brought about the case to fire me. He approves my time, he reviews the security cameras, he also disconnects certain equipment off the network before auditors show up to our office so that they can not scan it during audits. Funny how this guy who "disables, defeats or circumvents" certain office network equipment to hide things from the auditors turns around and gets me fired. I have proof of him altering or tampering with the office network before audits.

- - - Updated - - -

One more thing... tools such as PC Anywhere and UltraVNC for remote access are used internally by the company. LogMeIn is just another such tool that I found loaded internally on one of the company's servers that was maintained by one of our vendors.

[cbg]

NO NO NO NO NO!

Look. Any simpleton knows that you're not supposed to log in as being present when you're still off site. You shouldn't have to be told that. The UI office knows that you shouldn't have to be told that. You don't want to come across as someone who is morally and ethically deficient enough so that you don't understand that basic concept.

There is no wording that "altering" time records will get you fired. After all my supervisor having all this knowledge of the incident did go ahead and APPROVE my time record.

THIS is what you use. None of the rest of your convoluted reasoning.

[chyvan]

When I first read this, I thought you actually falsified a time record. Now, I'm not sure what you did, and I wonder if you're being too truthful as to what happened, and needlessly incriminating yourself. This is a discharge case so don't bring up the harrassment stuff or you might turn it into quit case which is much harder to win.

As an example, where I worked, there was a 7 minute grace period. So pulling a stunt like yours, would have meant nothing. I'd have still been paid for the 6 minutes, and my time card would have said 3:00 vs the actual 3:06.

So my advice would be to choose your words carefully, and don't make in sound like you "falsified a time record," but rather, "it was an inmaterial 6 minutes that would have made no difference in my pay (if that's the case)."

Also, in cases like this, the fact that you did this on 3/15, and they waited nearly a month to terminate you, can work in your favor. It suggests to the judge that there was some other reason, and that they went looking for something in the past that might get your UI denied. It's supposed to be about the events immediately preceding your termination, not stuff that happened a month in the past.