Misconduct
Theft
Sleeping On The Job
Poor Attitude
Inappropriate Computer Use (Includes Pornography)
Insubordination
Mixed Reasons (Discharged For Two or More
Reasons)
Other (deception, foul language, threats or fighting)
Drugs (make whole page for GA law on drug testing and observations)
Was This A Supervisor? (For
Insubordination and Rule Violation cases where the claimant said others were
doing it too.)
Types of Discharge
Theft
Phrase the reason for discharge in a way
that is easiest to prove at the hearing. For example: Theft is often very
hard to prove. To win, the employer will often need strong
circumstantial evidence, a
videotape or a witness who saw the event.
The fact that the claimant was short on her register does not prove theft or
even that she was dishonest. Others may also have used the register and the cash
loss could also have been due to her negligence. So in a cash shortage
case,
focus on the series of rules that if followed correctly would have prevented the
shortages.
In most situations it may be better to phrase the violation as a "Failure to
follow proper cash handling or security procedures." That way, the
discharge would cover a variety of honest but negligent practices such as her
failure to count the money, her failure to properly close out the register or
her failure to properly secure the funds.
Once the issue of dishonesty is eliminated, all that's left to decide is whether
or not she followed the employer's rules as stated in the handbook, policy
manual, etc.
See
Most Common Mistakes At The Hearing
Circumstantial Evidence
Circumstantial evidence is very important when there are no eyewitnesses to the
event. This type of evidence shows that indirectly, and based on the circumstances,
the claimant was most likely responsible. In other words, when considering
all the facts, a reasonable person could find that more likely than not, the
claimant did it.
Note: When the documents are complicated, ask to give a 20
second summary on what you intend to prove. This gives the hearing officer a
roadmap of your case and prevents the judge from being lost or overwhelmed.
It will also cut down drastically on the time needed to prove your case.
Summary Example #1: Accounting Fraud
"These are the accounting ledgers
the claimant used to track incoming and outgoing funds. The dates and amounts in
red show outgoing funds. The dates and amounts in blue show incoming funds.
These funds should match. We will show that the claimant fudged the
incoming funds to make it look like they matched the outgoing funds. In this way
he could steal money without being caught and the books would still appear to
balance."
Summary Example # 2: Time Card Violations
"We believe the claimant falsified her time by failing to
clock in and out as required. 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.
Summary Example # 3: Falsifying Computer Records
"The claimant was in
charge of gauging the level of gas in 8 giant petroleum containers. His job was
to climb the container and do a visual spot check of how full each barrel was.
He was then supposed to enter the information in a computer database. These
documents will prove that more likely than not, he simply guessed at the gas
levels and never did a spot check. In fact, based on the times and volumes
recorded, we will prove that he changed the figures five times in just ten
minutes and did so probably to avoid triggering the alarm. This is falsification
of records vital to the company and it warrants immediate dismissal."
Types of Circumstantial Evidence
 |
Documents, timecards or videos showing the claimant was the only one in the room or the only one on duty. |
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Any evidence showing that only the claimant had access, motive, knowledge or opportunity. |
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copies of shift schedules, sign in sheets, work schedule, etc, showing claimant assigned to the task. |
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Pictures of the work area where the misconduct or omission occurred. See Housekeepers |
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Cash register logs showing lack of activity (for sleeping on the job) or suspicious activity. |
Circumstantial Evidence For Theft
|
Transaction logs that show the claimant was the only one who used the register, computer, phone, etc. |
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Date and time stamped video showing claimant was the only one in the room or store or was nearby when the incident occurred. |
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Attendance sheets or time cards showing who was or was not there the day of the incident. |
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Testimony or documents showing the problem stopped once the claimant was fired. |
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Any other evidence showing the claimant was the only one with access, motive, knowledge or opportunity. |
See Subpoenas
See
Most Common Mistakes At The Hearing
Sleeping On The Job
Usually the claimant will deny being asleep or say
he was "just resting his eyes."
Always ask the employee what happened, even if the whole event was
caught on videotape. An employee's admissions may be useful if later, they say
something different at the hearing. Make sure someone else is present as a
witness.
Also, find out if they were ill or on prescription
medication (that could cause drowsiness). Be careful about discharging someone
if on medication. Warn them in writing that they have until the next business
day to show proof of such.
Evidence
To win, the employer will need a witness who saw the event.
Otherwise they must produce strong
circumstantial evidence. Good supporting
evidence could include a videotape showing the person asleep, proof of
register or ID card transactions that show no activity for the time at issue but
which show lots of activity during the same time period just before and after he
was asleep.
Customer complaints are hearsay without the customer at the hearing. However, such can be used to bolster admissible evidence that shows why there was no activity during the stated time period. If your evidence is circumstantial, simply prove that during that time, whether asleep or not, the claimant was not doing his job duties.
Your Closing Argument
In your closing summary statement add that "the employer has proven the
claimant was not doing his job duties. At no time here has the claimant ever
offered a good explanation for his non-performance. He simply denies he was
asleep. Regardless of such, the claimant has violated the employer's rules and
has done so without excuse. Therefore the the termination was justified and he
should not be entitled to benefits.
Poor attitude cases are tough to win. The problem is that bad attitude is
extremely subjective. Therefore it's almost never documented. Further, it's
often hard to pin down in concrete terms exactly what it was the claimant did
wrong.
To overcome these obstacles.
you'll
Example "Sally when you are annoyed with someone you are not to roll your
eyes, shrug your shoulders or make long sighs. You are also not to raise
your voice when speaking to them. Instead, if there's a problem, tell the
employee "we'll have to talk about it with our supervisor." Then promptly
contact the supervisor for assistance.
Note: make sure to list any verbal and non-verbal communications such as defiant posture, tone of voice, sighs, rolling of eyes and other sounds, words or gestures. When it's time for the hearing you will want a number of counseling or warning letters describing each incident, however minor. Explain how the employee was a real burden to work with and interfered with the employer's business. Make sure to have many witnesses if possible.
Types
of Discharge
See Most Common Mistakes At The Hearing
Inappropriate Computer Use
(Pornography)
Employers who think this is an easy win are fooling themselves.
Often the claimant will deny being at fault and attempt to blame others.
The sophisticated ones may even challenge the investigation and attempt to show
it was flawed.
Someone else had access to my computer and was to blame.
I received unsolicited emails/pop ups and had no idea it was pornography.
Everybody was doing it and they just punished me.
I never knew there was a rule against it and never received the handbook.
What Not To Do
|
Never send only your human resources person to the hearing. Usually, these people have no technical expertise, never conducted the investigation and never saw what was on the claimant's computer. |
|
Never compile a list of URLS or an Internet surfing log that is without the claimant's user ID/computer name or password. The fact that the URLs lead to porno sites is irrelevant unless you can also show it was the claimant who looked at them. |
What You Should Do
Always bring the person who spoke to the claimant about his wrongdoing. Also be sure to bring the person who conducted the investigation.. This person must be able to explain what the documents and web logs mean. Computer techies are terrible at making things simple. Note that your case may depend on it. Most hearing officers have no technical background. So practice making your explanations short and simple.
Your best evidence will include:
Live Testimony from the witness who saw the claimant accessing inappropriate material.
Documents that link forbidden online activities with the claimant's ID#, password or computer.
Live Testimony or a policy showing all passwords and log on ID's are to be kept confidential.
Live Testimony from the person who conducted the investigation and/or made the reports showing inappropriate activity.
Live Testimony from the witness who heard the claimant make admissions during the investigation or at the termination interview. Note: This is crucial as the claimant may change his story at the hearing. The witness can then show he never offered that excuse before and came up with it only now.
Copies of what was said to the claims examiner in the initial hearing. Use this in the questioning phase to show the claimant can't keep his story straight. Example: "Isn't true you told the claims examiner you received unasked for emails but you never told her anything about porno pop ups?"
For More Help See
Presenting Evidence of Web Site Content In Court Proceedings (Scroll to GA
Law)
Sample Closing
The claimant violated a known company policy and is therefore not entitled to benefits. Even if the claimant never signed the handbook, and never knew of the rule, it's common sense that you should never bring pornography to the workplace.
The evidence shows plainly that he did the downloading/viewing/ emailing himself. The claimant was the only one who had direct access to his computer. Further, the inappropriate activities were traced directly to the claimant's ID #, his password and his work station/computer.
The employer notes that the excuses given at this hearing were never presented at the claimant's termination interview. This is the first time we ever heard them. Likewise, these excuses were never mentioned in his first hearing with the claims examiner.
The employer understands that it has the burden of proof. However, this burden is merely a preponderance of the evidence. Thus, all the employer has to do is show that more likely than not, the claimant was at fault.
To hold for the claimant, the hearing officer would have to accept some extremely implausible explanations.
First, the hearing officer would have to find that someone else took the claimant's password, even though the claimant knew such had to be kept confidential.. Second, that somehow, someone else was able to use the claimant's computer repeatedly, without him ever knowing about it. You'll note that the claimant never made any reference to being absent or sick on the days at issue. Nor was there any testimony from him that he was on an extended break or away a long time from his computer.
In addition, the hearing officer would have to disregard the claimant's own lack of credibility. It undisputed that the claimant is now saying something entirely different from what he said at his termination interview. And again, what he is saying today is also different from what he told the claims examiner.
In light of the documents presented, the testimony from the witnesses, and the claimant's lack of credibility, the employer believes the burden of proof has been satisfied. Therefore we respectfully request that benefits be denied. Thank you.
See Most Common Mistakes At The Hearing
Documents To Present At The Hearing (If Available)
| A signed and dated admission of wrong doing in the claimant’s own handwriting; |
| Records showing the misconduct originated from the claimant’s phone, register or computer, (i.e. a videotape of the conduct, or a printout showing use of the claimant’s PIN, password or employee ID #). |
| Any written promise to pay back what was taken or damaged; |
| A signed and dated statement from the claimant indicating receipt of the employer’s handbook/A statement he knew of the employer's policy before breaking the rule. |
| Any written document from the claimant stating reasons for the conduct (Claimant may allege different reasons at the hearing) |
| Any Circumstantial Evidence showing the claimant was responsible. |
NOTE:
Be thoroughly familiar with any document where the claimant has admitted
wrongdoing. You'll need to know exactly
what was said and not said so you can impeach him at the hearing. By this time,
most people forget what they've admitted to and it's up to the
employer to point out the contradictions.
For example: the claimant may testify that until he was fired, he never knew of the employer's rule or that his conduct was wrong. Be ready to ask him “if this is true, how come you never mentioned this before either verbally or in your signed statements?” "You signed 3 statements about your wrong doing and never once did you claim not to know the rule, did you?"
For More Information, See
The
Unemployment Handbook
Cost control procedures and what to do at the hearing. Produced by Sheakley
Uniservice, a well known employer UI Tax representative.
Insubordination
The term insubordination is often misused to include any violation of company
rules.
But the dictionary defines insubordinate to mean: Not
submitting to authority; disobedient; rebellious; mutinous.
The clearest acts of insubordination occur when without justification, the employee deliberately disobeys a direct order from a manger, supervisor, or some one else in authority. Insubordination can also take the form of passive resistance to authority. This can occur when the employee was clearly told what to do, but delays out of defiance or sheer stubbornness.
To Prove Insubordination, The Employer Must Show:
The employee was given a direct order
By someone the claimant knew or should have known was in authority
The order was reasonable
The order was clearly understood and
The order was not followed out of sheer disobedience
The claimant knew or should have known that disobedience could result in discharge
Common Claimant Defenses At the Hearing
I didn't understand the order
I didn't know it was an order
I never knew I'd be fired for disobeying the order (Ordered to do something minor)
The order would have put me or others in danger
The order was unlawful
The order giver had no authority to tell me what to do
I was never given enough time to follow the order
I couldn't follow the order (lack of ability, illness, someone else's fault, etc.)
I did follow the order (but not to their satisfaction)
I did follow the order (flat denial there was a problem)
Responding To Insubordination
Make it very clear what you want them to do. If it's not too degrading, have the
employee repeat it back to you in their own words. Give a set time and date for
when you want the order carried out. If the employee refuses a direct order,
always ask them why. Explain that refusing an direct order could
result in disciplinary action up to and including termination. If they
still refuse, bring the employee to HR or to another supervisor. Then ask them
again. This gives the employee time to reconsider. It also gives the employer
another witness if the employee again refuses. Any refusal beyond this point
should be put in writing. (Prevents them from changing their story at the
hearing)
Write down what it was you asked them to do and explain in writing that a failure to do this could result in discipline up to and including termination.
Then put their name below with the following words:
I refuse to do the task(s) above because.... (Have them fill out the rest and date and sign below)
_________________ ________________
employee (Date)
Mixed Reasons
If possible, the discharge should always end with a bang. There should always be
a final incident and it should never
never be something petty or hard to prove. The reason is that a great deal of
weight is placed on the final triggering event. If the last event is something
trivial, the claimant may be deemed not at fault. Likewise, if it's hard to
prove, the claimant may win on technical grounds such as hearsay or a failure to
show misconduct.
Here are Some Classic Examples Where the Employer Will Often Lose:
Claimant Fired With No Final Event
Employer alleges numerous errors and then decides to terminate at the end of
the 3 month probationary period. However, the last recorded event was
three weeks before the discharge and the employer has no dates or times of
subsequent infractions. Claimant denies any wrongdoing during the final three
weeks of employment.
THE EMPLOYER LOSES BECAUSE THE CLAIMANT WAS ALLOWED TO WORK AT THE EMPLOYER'S
CONVENIENCE AND WAS FIRED FOR NO SPECIFIC REASONS AFTER THE LAST WRITE-UP.
SOLUTION: Never stop documenting. Create a
warning
broad enough to anticipate the claimant's future mistakes, but narrow enough to
give him some direction. Then fire promptly after the next infraction.
Claimant Fired For Tardiness and Poor Performance-Last
Incident Was Poor Performance
Employer alleges repeated tardiness. However, the last straw was an
innocent accounting error that anyone could have done.
THE EMPLOYER LOSES BECAUSE THE TRIGGERING EVENT WAS A MINOR MISTAKE TOO MINOR TO BE DISQUALIFYING.
SOLUTION: Be Patient. If
their performance is truly abominable, you won't have to wait long before
there's another rule violation. And don't be too trigger happy. Deciding in
haste can cost you up to $7,800 a claim.
Claimant Fired For Tardiness and Customer
Complaints-Last Incident Was Unproven Customer Complaint
Employer alleges repeated tardiness. However, the last straw was
another customer complaint. The claimant denies he was rude or tries to justify
the conduct. No witnesses observed the claimant with the customer and the
customer never testifies at the hearing. Employer offers a signed customer
affidavit explaining what happened.
THE EMPLOYER LOSES BECAUSE THE TRIGGERING EVENT WAS BASED ON
HEARSAY
SOLUTION: If possible don't base the discharge on
events where no live witnesses observed what happened. For customer service
issues, station the claimant near a supervisor so the calls can be monitored
more closely. Listen to his calls more frequently on tape and submit for the
hearing any recording that shows a rule violation.
Claimant Fired For Various Reasons But Last Reason Was
An Absence Beyond His Control
The claimant was rude, perpetually late and did sloppy work. But he isn't fired
until he was absent due to illness. Or maybe it wasn't illness. Rather he tells
you he was required to attend a court proceeding that had nothing to do with bad
on conduct on his part.
THE EMPLOYER LOSES BECAUSE THE TRIGGERING EVENT WAS OUTSIDE THE CLAIMANT'S
CONTROL
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 child’s court proceeding).
SOLUTION: Be Patient. If their performance is truly
abominable, you won't have to wait long before there's another rule violation.
And don't be too trigger happy. Deciding in haste can cost you up to $7,800 a
UI claim.
See Attendance Violations
These cases usually involve a failure to clean. For the hearing you should provide:
Proof that the claimant was assigned to the room at issue
on the date of the occurrence
(copy of shift schedule, sign in sheets, work schedule, etc.
Pictures of the unmade bed. trash, dirty sheets, etc, with room number and either a time date stamp or the date shown on today's newspaper.