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TexLaw
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Category: Employment Law
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Experience:  Contracts, Wrongful termination and discrimination
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I was terminated for tardiness from my employer on 2/12/2013

Customer Question

I was terminated for tardiness from my employer on 2/12/2013 in Pennsylvania. I applied for UC Benefits in Pennsylvania and the claim was initially denied-tardiness was willful misconduct. I appealed that decision and the hearing was held on 4/22/2013. The referee decided on 4/26/13 that I did not show good cause for my tardiness which determined to be willful misconduct. However, I DID present the evidence and good cause reasons for my tardiness during the hearing. I intend to appeal his decision to the Board of Review because he left out critical details of the hearing along with some other important information. I believe had he not done so, I would have probably gotten my UC benefits. Do you think that I can get the decision reversed by the Board because of the omitted information which showed good cause??

Here are the details of my situation/details of the hearing (including details of my testimony he left out):
1. I was employed with Company P from May 27, 2008 to Feb 12, 2013.
2. On October 10, 2012, the Employer placed the Claimant on a ninety day probationary period due to excessive tardiness.
3. My work schedule was 11am to 730pm (I would leave approx. 1030am using public transportation.)
4. On November 4, 2012 the Claimant was approved for intermittent Family and Medical Leave (FMLA) for any health related issues that occurred due to the Claimant's immune system medication.
(This is very incorrect-I told the referee: I was approved for FMLA in October 2011 for HIV related issues and side effects caused by my HIV medication, Atripla. Side effects included, but not limited to: XXXXX XXXXX problems waking up)
5. On January 11, 2013, the Employer extended the Claimant's ninety day probation an additional thirty days. The Claimant was advised that he was required to "report to work on time at 11:00 a.m. on each day when you do not have a medical-related tardiness .... "
6. During the thirty day period, the Claimant did have non-medically related lateness.
7. On February 12, 2013, the Employer discharged the Claimant for excessive tardiness.

My employer did not show at the hearing.

Here is the referee's reasoning:
The Claimant testified that he deals with a serious medical issue which would result in his being late due to the reaction to the medications he takes. The Claimant also testified that the public transportation would be late. The Claimant further testified that his probation was extended another thirty days in order for the Claimant to report to work on time when he did not have a medical-related tardiness. The record is clear that during the extended probationary period, the Claimant had additional dates where he was late and it was due to his medical issues.

(Those indicated dates were FMLA days where I was out the entire day or 1-3 hrs late. He left out details of my intermittent FMLA. If I had medical-related health issues, I could take an entire day off or I could let my employer know that I would be 1-3 hours late. I had to notify them at least an hour before my start time. These days off/tardiness periods were indicated on my timesheets as FMLA time. I also told him that I would often have trouble waking up, causing me to oversleep in the morning due to the HIV med side effects, if I did not wake up before 10am to notify my employer, I would still do my best to get to work and I would arrive a few minutes late-which was interpreted as habitual tardiness. I submitted proof via company memo that my arrival times were a only few minutes, 2 to 11 mins at most, past my start time. I also had to notify my supervisors even if I was going to be 1 minute late-which I did do every time per company policy.)

His decision continues:
The Referee does not credit the testimony of the Claimant. The Claimant testified that he would leave thirty minutes prior to his start time at work. The Claimant was aware or should have been aware that his employment was in jeopardy due to his habitual tardiness. At that point, it was incumbent upon the Claimant to leave earlier for work in order to deal with any unforeseen events such as passengers with wheelchairs who needed to be loaded on the bus, and issues with traffic or construction on the roads. Moreover, the Referee concludes that the Employer only counted non-medical related tardiness in its final determination to discharge the Claimant. Therefore, as the Claimant has not provided any good cause or justification for his non-medical related tardiness, benefits are denied.

(I did testify that some mornings I did leave earlier for the bus if I could and sometimes I did. I mentioned to him again about the side effects of my HIV medication which made it often difficult to wake up in the mornings, let alone earlier than I did already.)

My Conclusion: I believe that I gave good cause for my tardiness. HIV related health reasons and public transportation issues beyond my control. Do you think the Board would rule in my favor??
Submitted: 1 year ago.
Category: Employment Law
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question.

Are you saying that there are days when you were not ill and were not experiencing medically related side effects in which you were late to work only because of traffic problems?
Customer: replied 1 year ago.

Yes, there were days like that too in the past. During the last 30 days of my employment (the probation period), I was late 2 days that were not FMLA tardiness. During the probationary period, I had 8 FMLA days out sick, 3 FMLA late days (advance 1 hr. notification), and 2 late days (by about 5 mins.) One of those days were probably due to my illness only, the other due to public transportation issues & my illness.


 


The referee did not ask that question specifically.


 


Honestly, I am sick every day-some worse than others. I have had HIV for 23 years.


 


Also, the employer, the HR director specifically, made a statement in their phone interview with UC service center prior to the hearing which was "He took advantage of the situation." Isn't that retaliatory or discriminatory in nature or something like that??


 

Expert:  TexLaw replied 1 year ago.
I think you should file a claim for FMLA retaliation with the US Department of Labor Wage and Hour Division (You will need to contact them to file the claim). http://www.dol.gov/whd/fmla/

I also think you need to file an ADA discrimination claim with the EEOC. www.eeoc.gov/field/

Both of these claims can result in back pay and reinstatement.

The Unemployment Commission does not necessarily understand the rules surrounding FMLA and the ADA. They may find against you because there were days when the illness did not cause your tardiness, and it sounds like you may have admitted to that. However, I encourage you to proceed with the appeal, as this sounds like a situation where you were being singled out.

An attack on all three fronts by you may end up winning the day!

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

Thanks for your reply! I do have a couple more questions:


 


Do I need to get a lawyer involved to submit a legal brief or can I appeal with the details that were left out as I did for you here? I read that it's not required, but increases my chances cause an attorney could cite precedent cases in PA. One precedent that I've seen often is that "Illness, properly reported to the employer does not constitute willful misconduct." Brown v. Unemployment Compensation Board of Review, 854 A.2d 626, 629 (Pa. Cmwlth. 2004). So I think I have at least that one to prove my case.


 


I find it a little disturbing that the referee barely mentioned my medical condition, the actual medication I'm on, and its side effects. As if it was a minor thing or like it didn't matter. In fact, i remember him saying that it's (oversleeping as a specific side effect) not on FMLA request form. This was not the FMLA Certification he commenting on--it was the request form. So, in his mind, it's not written down so it's not a side effect of the medication I just spelled out for him?? Clearly, he's not an expert to make such a ruling.


 


My other question: I should mention the quote from the HR director in their telephone interview to the Board too, yes?? I don't see how my evidence can be interpreted as taking advantage of the situation.


 


The EEOC and ADA claims I intend to file as well, thanks for that!! Friends of mine suggested I do that a couple months ago, but it wasn't until I saw her statement that I felt that their firing me was a response to time I took off in February. I was out from Feb. 5, 2013 and returned the following Monday, Feb. 11th and was fired on the 12th.


 


Your thoughts??

Expert:  TexLaw replied 1 year ago.
If you get a lawyer involved, it definitely does increase your likelihood of recovery in all the claims. I think you hit it on the head that the UC examiner did not grant the proper weight to your medical issues. I think that statement that the HR director said is damning.
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4164
Experience: Contracts, Wrongful termination and discrimination
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Customer: replied 1 year ago.

Timing might be an issue for the UC Board appeal to get an attorney involved since the deadline is 5/13/13, but ill see if I can find someone tomorrow. I also contacted the Unemployment Project for help when I got my initial hearing info and they said they arent taking on anymore clients this year until the fall.


 


Although filing one is optional, do you have suggestions as to where I can look for examples of a PA legal brief?


 


Thanks again for your all your help!!! I really appreciate it!!

Expert:  TexLaw replied 1 year ago.
Sounds like a good plan. Unfortunately, I am not aware of where you could find an example of a brief. Because these proceedings are informal, I wouldn't worry to much about the form. If you are going to do it yourself, you may simply write it in a letter format.
Customer: replied 1 year ago.

Ok, great I will do that.


 


Thanks!

Expert:  TexLaw replied 1 year ago.
Good Luck!

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