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Unemployment Fact-Finding Interview - do I need atty?

On Lawyer & Legal » Employment & Labor Law

8,939 words with 2 Comments; publish: Mon, 24 Aug 2009 15:15:00 GMT; (80061.52, « »)

The state is: ? VA I was recently fired and have now filed unemployement. I know that VA is a right to hire/fire state and therefore, wrongful termination is not an issue. However, I believe my past employer must be contesting the unemployment since I rec'd a notice saying the VEC would be doing an investigation for "misconduct". I'm not too happy about this at all since I have never done anything, at any time, at any company that could be considered misconduct. This company did not give a specific reason for the termination in the letter they gave me when we met in HR. It just says "as we discussed, we've come to the difficult decision to end your employment". In our verbal discussion, it was mentioned to me that it "just wasn't working out" and the primary reason was me making too many mistakes. I have made 2-3 mistakes per month, on average, on two reports that go out daily (some months no mistakes, other months one a week) which isn't good but I don't think constitutes misconduct since it wasn't willful, deliberate or intentional...right? I always did the best I could. I am going to ask for copies of the personnel file and any other documents given to VEC by my former employer. I have copies of my self evaluation from 08 & 09; a worksheet showing all of my duties that I was performing after a year of employment; and my review from 09 to give to the VEC for documentation. The last review is 60% good & 40% needs improvement so it wasn't totally bad. It also said that we'd meet in 3 months to re-address the issues. But, it had only been 6-8 weeks after I was given my review that I was fired...and with no warning at all. I've done a lot of things well but acknowledged problems with errors on just these two reports, apologized profusely, and even mentioned to my boss things I was doing to try to not make the mistakes in the future. So I was trying and, under the circumstances, was doing the best I could. Does any of this sound like misconduct to you and that I could be denied unemployment? The other part of this problem is the "under the circumstances" part. I don't know if I should bring any of this up or is what I've already mentioned enough to win my benefits without muddying the waters? I was sick with meningitis from 3/08-7/08 (out almost 3 months) with risidual effects for fatigue, memory loss, slow thinking, etc for months after I returned to work. This is when the mistakes really kicked in. After almost a year, I felt better, told my boss so, showed improvement, etc. But then, had a problem with my shoulder that required surgery in May of 09 and was out 3 weeks. Between all of this, I have fibromyalgia which was made worse from the meningitis and contributed to my memory & foggy headedness. I just don't think well or perform well when in pain it seems. I never said anything about this until the week of July 20th when I went to HR to ask some questions about FMLA and ADA to see what I could do to just not work rather than coming in on days when I didn't feel well and making all of these mistakes. A week later, I was fired. Can I ask the VEC to provide me specific information from when my boss first spoke to HR about what to do to begin the termination hearings (if it's not already included in the paperwork they give me)? Should any of this be mentioned or is it coincidental and not worth the effort? I believe that this was a good opportunity for them to eliminate a high paying position to coincide with the layoffs that occurred in March of 09 (over 100 positions) but, have no proof.

Should this be mentioned or again, coincidence? With all of these details, can I handle this myself of should I have an atty present? Any advice you can give will be most appreciated since I've never been thru anything like this.

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    • The fact finding interview is before the initial decision is made to approve or deny benefits. And from the relatively convoluted story here, I would say I'd do the same thing if I were trying to make a decision on this situation. Oh yes, your employer has apparently contested your claim. This happens.

      You will be speaking to the adjudicator. They have to get some information from you. Usually, the employer will not be on the line here, or in the same room, though sometimes this will be the case. Usually in a fact finding, the adjudicator tries to talk to both parties separately and obtain more information. Then they make the time constrained initial decision on approval or denial of the claim.

      You were fired for performance issues. When you are fired for performance issues, the employer has the burden of proof that you were deliberately failing to meet the performance standards. They have to prove that you understood the procedure, had been performing adequately in the past, and then later decided to mess up, not check your work carefully for errors, not give it your full attention, when you had control over your ability to make errors or not make errors.

      You are going to insist that you did the work to the best of your ability, that you understood the procedure, but that even though you tried to check your work carefully, especially after the warnings you received about your errors, there were still some unavoidable mistakes. You will say that there were indications that your work was improving, and that the last warning you received was....(some time ago, right?) and you thought you had really improved your performance, though they provided you no further feedback.

      Then, without warning, you were called in and terminated, without being given any further opportunity to correct your performance or having had any idea that your job was in jeopardy. State that if you had realized that your job was on the line, you would have tried to do more to keep your work error free, that you feel that you had recently been making these efforts.

      They should tell you just what it is that your employer is saying is the reason they terminated you during this process. If they bring up that you told HR you couldn't do the work or were making too many errors, and this was the reason you were terminated, then you point out that you merely expressed concern about trying to do a better job, and that you were worried about making errors. Do not say you told HR you did a lousy job because you were feeling sick.

      Frankly, using the story that "I was sick" or "I had just come back from sick leave and I was stressed out. I shouldn't have been there, really, I felt so bad and that's why I made all those mistakes," or "I was on medication" are not very good excuses for poor job performance. You should not be back at work untill you are ready to do it correctly, and it does not sound good to the unemployment system to hear you make excuses for your job performance other than that you were doing your best and it was not good enough.

      Yes, very probably the company has become tired of your frequent sick leave absences, which you should have requested sick leave and FMLA each time you had to be off and followed up on this, but that's water under now....

      They decided to get rid of you, and eliminate your position, while not having to pay you benefits, they thought. However, job performance issues are very hard to prove as misconduct. And at NO POINT should you say, "Yes, I did do my job poorly, but it was because I was feeling so bad."

      If you have the fact finding with the adjudicator, and the decision does not go in your favor, keep filing your weekly certifications for benefits. This is important, because you will not be paid for weeks you did not file for, even if you were not actually receiving money, when and if your claim is approved.

      If you get a letter after this investigation saying your claim has been denied, then at this point you can file an appeal of the decision. If it is approved initially your employer may very well file the appeal and request a hearing.

      You may, in this hearing, elect to have an attorney represent you. It's up to you. The appeals hearings are set up to be formal and they are sworn testimony and are recorded, but should be simple enough that people can represent themselves if they are well organized.

      Try to pare the information you provide down and stay on topic. You were fired for poor performance. You will not gain anything by using the sympathy card. You had been ill. You had some health problems. These in no way caused you to actually perform poorly. They did, however, make you a target for the company to try to terminate unjustly. Good luck.

      #1; Mon, 24 Aug 2009 17:14:00 GMT
    • Thank you for your info. I will keep the part about being ill out of the picture since it does, indeed, convulude everything. I'll stick to "I did the best I could" which really is the truth. Thank you again!
      #2; Mon, 24 Aug 2009 19:19:00 GMT