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.
| How 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) |
| Proof the claimant knew of the rule, i.e. signed form showing attended orientation or received the employee handbook. |
| Employee 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
|
Claimant did a good job before but just slacked off. |
|
Claimant deliberately defied rule or policy. |
|
Claimant was willfully indifferent or exhibited conscious neglect of rule or policy. |
|
Claimant
made no effort to learn the script, obtain the license/certification or pass the exam. |
·
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 didn’t 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
Most Common
Mistakes At The Hearing
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To Discharge
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 E
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)
| Attendance |
|
| Misconduct (deliberate acts or omissions, bad attitude, drugs, etc.) |
Poor Performance (accidents,
low sales, didn't pass exam, didn’t make quotas, failed to clean beds, slow, etc.) |
|
|
Other (prison, no transportation, etc) |
For
More Good or Bad Reasons For Discharge
See
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.
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
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:
|
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. |
| 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. |
|
Write their reasons down. (Prevents a change of story later on). |
|
Get the employee to sign a document agreeing to the explanation given to you. |
|
For absences,
be sure to ask for proper documentation relating to personal illness or the
illness of a family member. |
|
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). |
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
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
Failing to appear for your authorized shift will count
against your attendance record."
Note: It is the employer’s 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
http://www.consumer-sos.com/Georgia/Work/Unemployment_Benefits.htm#FiringsandLay-offs
Unemployment Insurance Appeals (GA Dept Of Labor) The
Unemployment Handbook (by Sheakley
Uniservice)
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Discharge
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.
A Must Read Summary of what employers should know before, during and after the
hearing.
What should be in every handbook.
See pages 6-17 for cost control procedures and what to do at the hearing..
Back To Employer-SOS
Rules On Logging & Correcting
Time
Summarizing What You Intend To Prove
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Next Time
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:
|
Clocking or logging in when you are not immediately ready to work (You cannot clock in and then park your car). |
|
Failing to log or clock out for lunch, breaks or other times when you are not working |
|
Having someone else sign in or clock in or out for you |
|
Misrepresenting your time |
|
Changing Time Records Without Written Authorization From Management |
Changing Time Records without Written Authorization From Management
|
Employees cannot change their own time records without prior written approval from management. |
|
Employees must first state in writing the proposed time change and why their time is inaccurate. |
|
Employees will then receive copies of any authorization to change their time. |
|
If there is an audit or investigation, the employee must
furnish written proof of the authorized time change or be |
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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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