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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1824
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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dec 5th 2012 i had a massive heart attack and after i recovered

Resolved Question:

dec 5th 2012 i had a massive heart attack and after i recovered and returned to work i became very tired easily. i worked the night shift at a residential treatment center for at risk teens. on april 28, 2013 aprox 2am i sat down on the couch and fell asleep. i have no memory of this. i was sitting up. i slept 2 hours. when i woke up i finished my shift and went home.

on april 29, 2013 the HR dept called me at home and terminated me. the cottage i had been working in had a camera and i had been observed sleeping. i decided to retire and i am now collecting my social security benefits. i applied fro unemployment and was denied
for "misconduct". should i fight this decision?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Customer:

yes

Employment-LawExpert :

Welcome to the chat

Customer:

thanks

Employment-LawExpert :

Did this happen more than the once?

Employment-LawExpert :

And were you ever written up for it?

Customer:

yes but i was not asleep....a client said i was but i was not

Customer:

it happened about a month before the termination

Customer:

the write up was protested by me

Customer:

they wrote me up anyway

Employment-LawExpert :

Well the short answer is that you should absolutely fight this decision at least through the first appeal. To qualify as misconduct for an occurrence like this, you must have been informed of the rule, disciplined for the rule, and then fired for the rule. You could have had a very strong argument that this was all due to a disability and you should have been able to receive a reasonable accommodation under the ADA.

Customer:

ok

Employment-LawExpert :

However, sleeping on the job can be seen as misconduct. Had you not had the first write-up I would say that you would receive benefits guaranteed. But, unfortunately, because of the first write-up it will ultimately come down to the adjuster assigned to your case.

Employment-LawExpert :

You should definitely bring up the concept of the heart attack, the failure of the employer to engage in the interactive discussion with you, and the fact that this is the first time that this actually occurred.

Employment-LawExpert :

To receive unemployment, you must prove that you lost your job through no fault of your own. As long as you did not consciously curl up and try to sleep, you have a good chance of winning

Customer:

it was not planned i was not aware nor did i lay down......i just fell asleep. also on the write up i wrote that i was not asleep and i was just reading

Employment-LawExpert :

Are you allowed to read?

Customer:

yes

Employment-LawExpert :

Like I said, it all comes down to the adjuster believing that you lost your job through no fault of your own, and that you did not actively try to sleep. Just so you know, the way this usually works is, 1) you request unemployment and are accepted. 2) your employer is given a chance to refute it in which you are denied, and then 3) you have to appeal, and it comes down to whether or not the adjuster believes you lost your job through no fault of your own.

Employment-LawExpert :

So you are at a completely normal stage of the process

Customer:

ok.....should i, at this stage hire an attorney?

Employment-LawExpert :

Have other people fallen asleep and not been fired?

Customer:

yes

Customer:

but they have not been on camera

Customer:

i was

Employment-LawExpert :

So you don't necessarily need an attorney for unemployment, however, you may want to look into getting an attorney for a discrimination claim based on age

Employment-LawExpert :

Ah, okay.

Employment-LawExpert :

That is entirely up to you then.


If you decide to hire an attorney a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys willing to take your case prior to selecting the one you feel most comfortable with.


 

Customer:

ok thank you

Employment-LawExpert :

Not a problem. Have I fully answered your question today?

Customer:

yes so i should just write my own protest?

Employment-LawExpert :

You can always definitely get an attorney, but if you word your argument to show that you did not consciously engage in misconduct, and that you lost your job through no fault of your own, an attorney will not necessarily help you at this stage of the game

Employment-LawExpert :

Of course, if you do not feel comfortable doing that, you can definitely hire an attorney

Customer:

ok that is good advice.

Customer:

i will write the protest tonight

Customer:

thank you i feel better

Employment-LawExpert :

I am glad I could get you pointed in the right direction. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.


 

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

thank you ..and you as well

Employment-LawExpert :

If you ever need to ask for me again specifically, please feel free to do so here:

Customer:

got it!!

Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1824
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 5 other Employment Law Specialists are ready to help you

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