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What You Need To Prove

 Burden On The Employer

Rule + Warnings + Write-ups +Witnesses = Win

Employer must show the claimant was at fault and the discharge was not due to illness or mere inability. The employer must also demonstrate:

bulletHow the employee failed to follow certain rules or procedures by either deliberately ignoring them or by conscious neglect.  Examples include: gross negligence, extreme carelessness, or repeated minor acts or omissions (that stopped for a short time once warned) .
bulletProof the claimant knew of the rule, i.e. signed form showing attended orientation or received the employee handbook.
bulletEmployee was warned that their conduct or omission could jeopardize their employment. Warnings are not needed for intentional conduct like theft, assault or sabotage. See Warning Those With Language Barriers

The Most Common Reasons Why Claimants Lose At The Hearing

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Claimant did a good job before but just slacked off.

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Claimant deliberately defied rule or policy.

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Claimant was willfully indifferent or exhibited conscious neglect of  rule or policy.

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Claimant made no effort to learn the script, obtain the license/certification or pass the exam.


Managers

        Show how the manager failed to follow established rules or procedures that were not up to their discretion or judgment.  It's not enough to say they didnít meet deadlines or failed to communicate.  Mention the specific procedures that were not followed and should have been.

        Document instances where rules were departed from.

        Can also document severe abuse of judgment or discretion.

        Warned employee that the conduct or omission could jeopardize their employment. 

See Evidence  

See Poor Performance

See  Types Of Documents

See Most Common Mistakes At The Hearing

See Types Of Discharge 

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Links To Other Websites

Unemployment Insurance Appeals (GA Dept Of Labor)
A Must Read Summary of what employers should know before, during and after the hearing.

Everything You Wanted To Know About Unemployment Law But Were Afraid To Ask
Learn about experience points, the appeals process and quit and discharge law. Includes tips on how to do a write-up, and what the DOL rules say on various types of discharges.

GA Employee Handbooks-Drafting and Enforcing Sound Procedures and Policies
What should be in every handbook.

The Unemployment Handbook (by Sheakley Uniservice)
See pages 6-17 for cost control procedures and what to do at the hearing..

GA DOL Employer's Handbook (Some On Quit And Discharge and Other Matters)


 




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Types Of Discharge

Attendance Temp Agency
Misconduct (deliberate acts or omissions, bad attitude, drugs, etc.) Poor Performance (accidents, low sales, didn't pass exam, didnít make quotas, failed to clean beds, slow, etc.)
 
Mutual Agreement (Lay-off, severance, Lawsuit settlement, etc. Other (prison, no transportation, etc)


 For More Good or Bad Reasons For Discharge 

See  http://www.consumer-sos.com/Georgia/Work/Unemployment_Benefits.htm#FiringsandLay-offs

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Attendance
In General (Overview On Both Absences & Tardiness)
Absences
Tardiness

The Best & Worst Attendance Policies
Proving Weather Was Different Than Alleged

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In General
To be at fault, the employee must be late or absent for non-medical reasons or other reasons within his control. If attendance is the issue, the employer must show their attendance policy was communicated to the employee and that the policy was violated. In situations in which it is not clear whether a quit or discharge occurred, the burden of persuasion shall be on the employer to show that a quit rather than a discharge occurred.  Otherwise the case will be decided as a discharge.

Note: For absences, the employee will not be at fault when they notified the employer in a timely manner and provided medical documentation if asked to do so by the employer. This is true even even if the employer has a "no fault" attendance policy and they can show it was violated.  See Leave Of Absence Letter

In cases where there is a mixture of different kinds of attendance problems, Georgia law looks into the totality of the circumstances. 

For example, GDOL Rule300-2-9-.01(2)(a) says the hearing officer shall consider the frequency of the absences or tardiness, the reasons for the absences or tardiness, whether the employee had been warned on prior occasions and whether the employee properly notified the employer. 

Note: As of July 1, 2005, the totality of the circumstances test was incorporated into law. However, be cautious when the  final incident is a non-disqualifying medical absence. This law will not apply unless the claimant was advised in writing before any of the absences, that a violation of these rules could jeopardize his unemployment benefits. So check you handbook before you decide to discharge.  Otherwise, never fire an employee on an illness related absence unless the employee failed to call in or provide requested documentation. The best approach is to wait until the employee is either is tardy again or absent for a non-illness related reason. Also,  never proceed with the termination until you have a documented reason showing the claimant was clearly at fault. Many employers lose because while the claimant had a bad history, the last last incident happened to be non-disqualifying. Under the law, it usually won't  matter that the claimant was chronically late or absent if not at fault in the last incident. So, for example: never fire someone because they were compelled to testify in a court proceeding that was not the result of their own wrong doing. See Glover v. Scott, 435 S.E.2d 250, 210, Ga.App. 25 (1993) (despite prior attendance violations, benefits allowed when final absence due to required attendance at childís court proceeding. Court also ruled on separate grounds that claimant was not at fault).

Also to be considered is how the attendance policy was communicated to the employee.  The more obvious it was communicated the better. Finally, there is whether upon consideration of the totality of the circumstances and surrounding events, the employee is at fault for the discharge.

The last prong is nothing but a smell test to get to the truth of the matter. In other words, if most of the attendance problems were within the claimant's control, the claimant should be disqualified from receiving UI benefits.  Be sure in your closing argument to use this "totality of the circumstances" language if it applies in your case.

 Also, Whenever possible:

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Establish a set work schedule and document when the employee's shift is to begin. Any changes in the schedule should also be documented. At the hearing, use time card logs to show when the employee failed to report on time. For More On Documenting a Schedule click Here.

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Document whether an employee is absent or tardy and ask them for their reasons. If you bring in a summary log of absences or tardiness to the hearing, also bring the underlying documents used to prepare the summary. Underlying documents are useful when a date on the summary sheet is alleged to be inaccurate. 

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Write their reasons down. (Prevents a change of story later on).

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Get the employee to sign a document agreeing to the explanation given to you.

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For absences, be sure to ask for proper documentation relating to personal illness or the illness of a family member.  

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Establish a policy where employees can be asked to produce a doctor's note at the employer's request. Alert your employees that failure to provide the proper documentation can lead to termination (Those faking an illness would be fired not for being ill but for  failing to comply with the policy).

Tardiness (See Time Records)
To get around excuses, you must show the claimant had the power to avoid being late.  For example, if the claimant alleges tardiness due to traffic, establish all the dates when he took the same route and arrived on time.  Then ask why he failed to get up earlier when he knew another tardy could get him fired. 

Same goes with medical injuries.  If the claimant broke his leg and says it made him late to work, establish all the dates when he had the injury but arrived on time.  This shows that even with his injury, he was able to adjust to his new condition and had no excuse for being late; i.e. he already knew in advance how long it took to put on his socks, grab his crutches, and walk to the car, etc.  See also Medication Issues.

Note: being late by a few minutes shows nothing but that the employee miscalculated and could have arrived earlier.  So, again why didn't he get up or leave the house earlier? 

Tardiness-Documenting a Schedule
At the hearing the claimant may deny he ever had a set schedule.
To counter this, give late employees a written warning that says:

"Your schedule is from 8am to 5pm.
Absolutely no shift changes are permissible unless written approval is first obtained
from your supervisor/manager, etc.
Failing to appear for your authorized shift will count
against your attendance record."

Note: It is the employerís responsibility to properly document attendance problems, warn the employee when their job is in danger and specifically reference when, to what extent and why the attendance problems occurred. Having the details is crucial.  Without them the employer is sure to lose.

For example: without dates to go on, the hearing officer may be forced to ask a question like:  "So were you late about four days a week?"  The claimant then says "no" and the employer loses the case!. 

For More Information On Discharge See

See Most Common Mistakes At The Hearing  

Proving Weather Was Different Than Alleged (Free)
Find out the exact weather for any day from Jan 1, 1980 onwards! May indicate temperature, precipitation and whether foggy or rainy or snowy.
Good to negate claims such as the weather made me absent, late or caused the accident, etc.

http://www.consumer-sos.com/Georgia/Work/Unemployment_Benefits.htm#FiringsandLay-offs

Unemployment Insurance Appeals (GA Dept Of Labor)
A Must Read Summary of what employers should know before, during and after the hearing.

GA Employee Handbooks-Drafting and Enforcing Sound Procedures and Policies
What should be in every handbook.

The Unemployment Handbook (by Sheakley Uniservice)
See pages 6-17 for cost control procedures and what to do at the hearing..

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Time Records

Rules On Logging & Correcting Time
Summarizing What You Intend To Prove


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Rules
Employees must log their time accurately each day or be subject to discipline up to and including termination. All arrival and departure times will be determined by the company time clock or a clock designated by management. If for some reason an employee cannot clock in or has misreported their time, they must immediately notify management in writing and on the same day the event occurred.

Prohibited Activities Include:

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Clocking or logging in when you are not immediately ready to work (You cannot clock in and then park your car).

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Failing to log or clock out for lunch, breaks or other times when you are not working

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Having someone else sign in or clock in or out for you

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Misrepresenting your time

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Changing Time Records Without Written Authorization From Management

Changing Time Records without Written Authorization From Management

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Employees cannot change their own time records without prior written approval from management.

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Employees must first state in writing the proposed time change and why their time is inaccurate.

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Employees will then receive copies of any authorization to change their time.

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If there is an audit or investigation, the employee must furnish written proof of the authorized time change or be
subject to disciplinary action up to an including  termination.

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Brief Summary To The Hearing Officer Of What You Expect To Prove (See Circumstantial Evidence)
"We believe the claimant falsified her time by (failing to clock in and out as required/altering her time the next day, etc). In this way she could arrive late, leave early or take long breaks without being detected. We have time records where the claimant manually logged in her own time/punched in and out using a timecard. These records are accurate because (they are based on a standard time clock that is always calibrated/the claimant made the entries herself and thus admits this is what happened, etc) The times she clocked in and out are noted with the following initials. Double entrees in red are when the claimant tried to clock in twice but never previously clocked out.

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