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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5122
Experience:  Extensive experience representing employees and management
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I was fired for my job because of absences, i was given one

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I was fired for my job because of absences, i was given one write up because of absences and another for tardiness. Furthermore, i never signed either document because i had very legitmate reasons for not being at work. I have a sick grandmother that i have to take care of and i have had some illnesses of my own on top of car problems. In addition, my job was an hour away from where I live and was at the mercy of traffic which varied everyday. It has been a very rough year for me and my employers were always aware of my reasons for being absent, i always called in and clearly explained my situtations. Whenever i was sick my employers refused to take my doctors notice and counted those towards unexcused absences which is unfair. In addition, on several occasions they would call me in to discuss my performance, challenging my integrity and asking degrading questions in order to convince me to quit.


I feel the real reason they wanted to let me go is because this is a sales based job and my performance was not meeting their standards, i recieved more write ups for my performance than for absences yet they chose to fire me for my absences.

Do the write ups count against me for unemployment if i never sign them?

How can i properly explain my reasons for missing work?

Can i claim that i was fired for performance reasons?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Unfortunately, the write ups could still be used against you even though you refused to sign them, since they do demonstrate that you were absent from work and that you had received prior warnings regarding your absences and tardiness, even though you had valid reasons for being late to work or missing work.

You should explain your absences were due to you taking care of your sick grandmother. However, absences and tardiness do provide an employer with sufficient good cause to terminate your employment, so despite your reasons for missing work, you will probably not be eligible to receive unemployment benefits.

Also, unfortunately, your performance issues (not meeting their standards) would constitute a separate good cause for your employer to terminate your employment, so it would not help your case for unemployment benefits to argue that you were actually terminated for performance reasons rather than absences and tardiness.

I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question.

I hope this information is hlepful. Please let me know if you have any additional questions.
Expert:  Joseph replied 1 year ago.

Hello Michael,

I'm sorry to see that you chose to 'shoot the messenger' and give me a negative rating based on my honest and accurate answer to your question. Remember that you should rate me based on the quality of the information I provide to you and not whether it was what you wanted to hear or not.

That said, is there any additional information I can provide you with to improve your feedback rating?

Thanks and best of luck.

Customer: replied 1 year ago.


What I would like to know is my best shot at proving that my previous employer doesnt have sufficient evidence to prove that my firing was for neglegent misconduct. Frankly, i do agree that mentioning my grandmothers situtation would help. I know the odds are against me so i need you to give me a more of a clear path that i can take in terms of making a case for myself. I have no intentions on giving up, i have won a case in the past that was worse than this situation but i am not a lawyer and i need some advice as what else i can do to explain my situation with my grandmother and such.


 


Another thing is that my company had a policy of 4 write ups for performance leading to termination and i recieved a total of 4 for performance yet they decided to let me go for 2 write ups on absences.


 


If it is required for me to get a 4th write up for absences and i got 2 perhaps they never completed all the necessary steps. Furthermore, my manager refused to take my doctors notice to miss work for being late which shouldn't be counted towards unexcused absences.


 


Please help me out

Expert:  Joseph replied 1 year ago.
Did you have an employment contract with your employer or were you an at-will employee? Do you have the policy in writing that states that it is necessary for you to receive four write ups before you are terminated?
Expert:  Joseph replied 1 year ago.
Also, when you received a doctor's note for being late, what was the reason? Was it just temporary illness or any semi-permanent condition (that could qualify as a disability)?
Customer: replied 1 year ago.


My doctors note was for Streptococcal pharyngitits a temporary sickness. But those absences were considered unexcused even though I had a doctors note, which my manager essentially refused to consider and told me she didnt have any use for my note because she wanted to consider them to be unexcused.

Expert:  Joseph replied 1 year ago.

You definitely can argue that your absences should have been excused due to sickness.

If you can show doctor's notes for the days that you received warnings (or were terminated) that would work in favor of you receiving unemployment benefits, since you could demonstrate that you did not have a pattern of being absent or tardy to work and were only tardy or absent due to illness.

It would also help if your employer did have a policy that stated that you needed to be written up four times for absences or tardiness in order to be terminated.

(However, this may be unlikely, since it would alter the 'at-will' employment relationship, which an employer is unlikely to do).

If this is the case, then you could argue that you did not violate a reasonable employer rule, since according to the employer itself, you did not qualify to be terminated for the number of write-ups due to absences you received.

Finally, if your employer has 50 or more employees, you would qualify for FMLA leave (on an intermittent basis) to take care of your grandmother, so you could use that in your favor to argue that your absences for taking care of her should be excused under FMLA.

Customer: replied 1 year ago.

The FMLA idea is great but a couple questions. I have been with the company for 8 months and was unaware of such a program and I never asked them about it. Can i still use this FMLA to my advantage and if so how should I explain it?


 


On the other hand, one thing I havent mentioned is that the tardiness has a lot to do with a flawed clock in software that has plenty of errors and it can take up to several minutes just to clock in. I had cut and paste the error that showed up which made it a long process to log in. Can i challenge the tardiness with such evidence?

Expert:  Joseph replied 1 year ago.
No, unfortunately, you need to have worked at your employer for at lesat 12 months before you're eligible for FMLA leave.

Yes, you could definitely challenge the tradiness based on the evidence of a flawed clock in software that made it take several minutes to clock in. (However, this would probably only work if you were late by less than 10 minutes. Otherwise, it would be unlikely to help you that much in your claim).
Customer: replied 1 year ago.

my assigned start time was 7 am, and i have here in writing that i am actually considered late at 7:08. Furthermore, if i can add another 10 min because of the flawed software can i contest tardiness? For example, if i show up at 7:06 and cannot clock in until 7:16 couldn't i argue that a tardiness in which i clocked in before 7:16 could be questionable?


If i can argue that they are wrong about tardiness then essentially I have one warning that counts and that would be towards absences.


 


In addition can i challenge the write up on absences because there is no clear information regarding missing full days of work in their operating proceduces hand book?


 

Expert:  Joseph replied 1 year ago.
Yes, you could definitely argue that you should not be considered tardy since the problem with the clock in software, which reuired several minutes to make you log in, caused your check in time to be uestionable.

Yes, arguing that they are wrong about tardiness, would technically elminate the one warning that counted toward absences.

You could challenge the write up on absences if there is no clear information regarding missing full days of work in the employee (or operating procedures) handbook. However, if that absence was not excused (for illness) it would be hard to argue that no fault would be attributable to you for missing work for a day, even if there was no clear policy stating that missing work for an unexcused absence could result in employee discipline or termination.
Joseph, Lawyer
Satisfied Customers: 5122
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Michael,

Could you please revise your feeback rating and rate me positively due to the additional information that I've provided to you.

Or, please let me know if you have any additional questions.

Thanks and best of luck!
Customer: replied 1 year ago.

 


Ok well i have some good information i can work with here.


 


Is there any benefit to not signing the write ups because now I have some decent reasons for disagreeing with them?


 


In conclusion, if you were me how would you go about explaining to unemployment that I was let go for questionable reasons? My goal is to put out an argument that there is not enough evidence to prove my conduct was neglegent enough to be denied unemployement because of the fact that I was taking care of a sick grandmother and that the tardiness can be elimated based on the flawed clock in software.

Customer: replied 1 year ago.
Relist: Answer came too late.
Expert:  Joseph replied 1 year ago.
Yes, there would be a benefit to not signing the write ups, since it does demonstrate that you do not agree with them and that you have reasons why you are contesting them.

Unfortunately, my answers to your questions regarding explaining your situation to unemployment would be based on what questions they plan on asking you. Due to alleged reasons for your termination, your unemployment claim is likely to be initially denied by EDD, and you will likely have to appeal to an Administrative Law Judge in order to have your denial overturned.

At that time, you could present evidence that show that the reasons you were terminated are questionable and could demonstrate (or at least cast enough doubt) on your employer's contention that you were terminated for good cause.

However, I'd also be concerned about the write ups for performance issues, as your employer would likely bring these up as another potential 'good cause' for your termination, if you were to successfully contest that you were not let go for good cause due to absences and tardiness.

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