Denied Unemployment for Being Away from the Office While Clocked in

My question involves unemployment benefits for the state of: California

Hello all, thank you for taking the time to provide insight into this frustrating situation:

I was recently employed as a help desk tech at XYZ Corporation. This employer was very lax on rules regarding being away from our desks while clocked in or working remotely. However, in Feburary I was terminated without warning, and the employer is stating that I falsified my records. Here are the details:

1) I was contacted by my manager asking if I was in the building (via text message). I replied "no, I'm on my way to ******, why what's up?". Her response was, "nothing, just wanted to make sure I didn't lock you in the office". We then proceeded to chit-chat about an upcoming race she was running and her plans for the weekend. The whole time I had been checking my emails for any new tickets or issues that require my attention (just as I'd normally do while sitting at my desk in the office).
-Should a ticket come in, an app on my phone would allow me to respond and instantly remotely connect into my desktop, where I would be able to work just as if I was sitting at my desk.
-All other employees, as well as my manager, constantly would run errands, go exercise, go home early, and would spend the entire day working from home.
-My manager repeatedly came to our team and told us that we could get out of the office whenever we needed to go for a run or get some fresh air (most of the employees were fitness nuts). She never said that we had to clock out at any time, and I personally went on 1-2 hour nature walks with her while on the clock, which she was aware of and had no problem with.

2) I went to the gym with a coworker while being on the clock. I was gone for about an hour. However I had my phone on me at all times and constantly checked my phone for any new tickets that may have come in. In addition our entire department's office phones were set up to connect to our cell phones if not picked up by the 3rd ring.
-I never received a ticket at this time.
-I never received a phone call at this time.

My manager told EDD that she had reached out to my coworker, trying to find out where I was, and that my coworker informed her that we were at the gym.

Some main points I want to reiterate are as follows:
*Written policy (via a new hire packet) stated that all employees were free to run errands as needed on the clock, as long as it didn't become an issue. (unfortunately I no longer have this document available to me)
*Verbal policy stated that we could leave our desks at any time, and for any amount of time, as long as it wasn't an issue.
*My coworkers and manager followed these policies and routinely worked from home, left early, or went to the gym while on the clock. Sometimes in excess of 3 hours.
*I never received a written or verbal warning regarding this.
*I worked after hours during that Friday, but forgot to actually clock them. (I personally see this as my loss, but irrelevant).
*I did receive a severance package (not sure if this is relevant to my case or not).
*The company as a whole was doing very poorly, and as a result had laid off about a third of the company in 2-3 months (immediately before I was let go). Again, I'm not sure if this is relevant to my case or not, I just found the timing of these layoffs and my termination to be unsettling.

I've just completed my interview, but have been told that EDD will need to contact the coworker that I went to the gym with. My concern is that this employee was a part-time employee that I personally feel was "gunning for my job" so to speak. In addition, he and my manager were close friends.

I'm not feeling very confident about the interview and I'm betting that I'll be denied. If that occurs, I'm just wondering if I have any chance of winning my unemployment benefits?

Any and all advice is greatly appreciated. Thanks everyone!

Cheers,
JohnFromCA

You're on thin ice. Working out in the gym is not "running an errand" and the employer is under no obligation to give you any sort of warning before firing your for misconduct. The fact that they fired the slackers first when needing to reduce the workforce isn't improper, it's a good business decision.

If the EDD denies you, you can appeal, but frankly I don't see much of an excuse unless you can somehow convince them that the employer did specifically have a policy allowing you to work out on company time.

What's actually sticking out to me is the issue of falsifying the records.

That question is would appear to have a simple "yes" or "no" answer.

Did you?

It is easy to see why a department with employees handling one issue every four hours needs to downsize.

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If that occurs, I'm just wondering if I have any chance of winning my unemployment benefits?

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Stranger things have happened, but in your shoes, I would not get my hopes up.

"Running errands" usually entails things like dropping the cable bill off or getting gas for the car. Generally, going to the gym is not something you do on company time. No, it doesn't matter that your manager and co-workers did this, there is no law requiring that everyone be given the same slack at work.

The sole point I can see that MIGHT allow you to get unemployment is that you never received a warning. USUALLY the UI office (in whatever state) takes the position that you have to be aware that what you are doing could cause you to lose your job before they will deny you benefits.

However, there are some things where they take the position that you shouldn't need to be told not to do something - that it's self-evident. Going to the gym on the clock is one of those things they may decide falls into that category. As someone said above, it's one thing to run out quickly to grab an extra cup of coffee at Starbucks, or mail a letter, and then come right back. It's another to take an hour to work out.

If you get denied initially, appeal it.

You'll probably get denied using this:

http://www.edd.ca.gov/uibdg/Miscondu...tm#GeneralRule

There's six elements to a "rules violation." In your case, it looks like all six elements are questionable based on what you say.

Was there really even a rule?

You might not have known the rule.

Can't really be willful and wanton if you didn't know.

May not be so material when you could have accomplished the task while not physically present in the office.

Employer probably wouldn't have been injured by you not being there.

You didn't get any warning.

And one thing not listed that is considered is whether the rule is uniformily enforced. You have a lot to work with on appeal, but don't expect the front line interviewer to delve in too deeply to sort this out. It's much easier to deny, and let an ALJ sort it out.

Thank you for your response.

My manager told our entire department that it was okay to go out and exercise, go for a run (there were a few runners in our department), or just get some fresh air whenever we felt the need to do so. Sounds like a policy to me...though unfortunately this was only a verbal policy so I am sure it will boil down to a "he said/she said" situation and I'll need to appeal. Thanks again, I'll post the results once this is all over.

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Quoting Disagreeable

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It is easy to see why a department with employees handling one issue every four hours needs to downsize.

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How does this comment even help at all? Leave your feelings about the company out of this. The amount of issues occurring during the business day was completely out of my control.

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Quoting LawResearcherMissy

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Stranger things have happened, but in your shoes, I would not get my hopes up.

"Running errands" usually entails things like dropping the cable bill off or getting gas for the car. Generally, going to the gym is not something you do on company time. No, it doesn't matter that your manager and co-workers did this, there is no law requiring that everyone be given the same slack at work.

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Thank you for your response. While I realize the best thing would be a written policy saying it was acceptable to do what I did, I'm leaning more on the verbal policy that said it was ok. Still, just to be sure I am trying to be proactive and am preparing my case based on what california law defines as "dishonesty" and "violation of employer rule" (MC 140 and MC 485).

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Quoting cbg

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The sole point I can see that MIGHT allow you to get unemployment is that you never received a warning. USUALLY the UI office (in whatever state) takes the position that you have to be aware that what you are doing could cause you to lose your job before they will deny you benefits.

However, there are some things where they take the position that you shouldn't need to be told not to do something - that it's self-evident. Going to the gym on the clock is one of those things they may decide falls into that category. As someone said above, it's one thing to run out quickly to grab an extra cup of coffee at Starbucks, or mail a letter, and then come right back. It's another to take an hour to work out.

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Thank you for responding to this post.

While I see your point, I do feel that this was an acceptable practice that should have been clarified by my manager, as other coworkers did the same thing (went to the gym and worked out on the clock) and my manager repeatedly went on walks (for 1-2 hours average), often taking myself or other employees with her. She never had anyone clock out for this, which can be proved by the time cards for the other employees. Unfortunately, I don't think I have access to those so I'm preparing my case based on other aspects of this situation. I will post a final decision once this is all over.

It would most definitely not be an acceptable practice most places. While I do see what you are saying, be prepared for the adjudicator to need considerable convincing that it was an acceptable practice here.

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Quoting chyvan

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If you get denied initially, appeal it.

You'll probably get denied using this:

http://www.edd.ca.gov/uibdg/Miscondu...tm#GeneralRule

There's six elements to a "rules violation." In your case, it looks like all six elements are questionable based on what you say.

Was there really even a rule?

You might not have known the rule.

Can't really be willful and wanton if you didn't know.

May not be so material when you could have accomplished the task while not physically present in the office.

Employer probably wouldn't have been injured by you not being there.

You didn't get any warning.

And one thing not listed that is considered is whether the rule is uniformily enforced. You have a lot to work with on appeal, but don't expect the front line interviewer to delve in too deeply to sort this out. It's much easier to deny, and let an ALJ sort it out.

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Thank you for your response. Basically at this point I am trying to be proactive and am assuming that I will initially be denied. I will look into this law in detail, as well as MC 140 regarding dishonesty as the interviewer informed me that they are stating that I falsified records.

Thank you for your input.

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Quoting cbg

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It would most definitely not be an acceptable practice most places. While I do see what you are saying, be prepared for the adjudicator to need considerable convincing that it was an acceptable practice here.

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Thank you for the advice cbg.

One thing I'm quickly learning is that ANY policy that a company changes or implements needs to be documented to the best of my ability. The best I can do is present my case, hope for the best, and continue to seek a new job.

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Quoting JohnFromCA

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Thank you for your response. Basically at this point I am trying to be proactive and am assuming that I will initially be denied. I will look into this law in detail, as well as MC 140 regarding dishonesty as the interviewer informed me that they are stating that I falsified records.

Thank you for your input.

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Thank you for the advice cbg.

One thing I'm quickly learning is that ANY policy that a company changes or implements needs to be documented to the best of my ability. The best I can do is present my case, hope for the best, and continue to seek a new job.

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Well I've received the notice that it has been denied - specifically that I "knowingly entered false information on a time card". I've appealed the decision, stating that I never received any warning and that this had been company policy since I had started at the company. I'm preparing my case now and reaching out to some legal counsel via a friend's uncle (who is a lawyer).

I'm assuming that they will be appearing to this case and that they will have witnesses. Any advice to use this to my advantage? I'm assuming I can cross-examine, right?

Still, my best proof is that there was no warnings, I think. Thoughts?

Not necessarily. More often than not the claimant is the reason for the intial denial. They say way too much and don't understand "burden of proof." You probably put down stuff that looks like an admission and then try to hang your hat on "no warning." You fight the whole thing from start to finish. You start with there is no proof that you knowningly did anything.

You say you were discharged, stop, and then let the employer produce the proof to establish misconduct.

When you appeal, you say, "the determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled." That forces the employer to still have to come up with proof for the hearing. I've seen enough times where the employer wins from the deputy, and then doesn't appear at the hearing because they think it's in the bag. The hearing is from scratch. They have to be there or you can challenge the evidence because most of the time it amounts to hearsay documents presented by an employer rep that saw nothing.

You're in a good place because based on past standards you did nothing wrong. You're probably salaried. While it might be nice from a job costing standpoint that your time records are accurate, I doesn't sound like you got paid a nickle more nor performed less work than you should have.

When you get your hearing notice you'll be able to view the file before the hearing or if it's a telephone hearing the employer's documents will show up in your mailbox. Look at them. You may very well see that your employer said hardly anything, and it was everything you wrote/said that got you disqualified.

chyvan has a tendency to make assumptions that do not necessarily hold true in fact. I would be more inclined to put that that your only possible chance is that there were no warnings, and that in itself is a weak limb to be holding in this case. Remember what I said about things that you should know without being told should not be done?

I would agree with chyvan that the employee is often his own worst enemy when applying for unemployment, by admitting too much. Some employers also do drop the ball on appeal. Mind you, holding back the facts and hoping UI won't figure out what actually happened is not the most noble of approaches, but if you're applying for unemployment it doesn't make much sense to start by telling UI, in essence, that your application should be rejected.

Note, however, that getting a de novo hearing does not necessarily mean that the hearing officer cannot consider a prior admissions when a record of the admission exists. While a first level appeal before an ALJ can involve the submission of a considerable amount of evidence, not available at the time of the initial decision, an admission made in the original application could still turn out to be decisive. The second level of appeal, to the Appeals Board, is made upon the record of the first appeal, and the litigants must obtain permission before they can submit new evidence.