Employment Law Questions? Ask an Employment Lawyer.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.
Most of your questions are rhetorical and can't really be answered.
I'll go ahead and address the ones that can be though and then we can discuss it in more detail.
was this a health condition compromising my ability to perform the job functions (FMLA)?
Probably not, not if you were in jail as opposed to getting treatment in a clinic for instance. It could, however, be an ADA issue.
Was this abandonment of the job in the legal sense or unlawful termination based on the reason given?
Yes, it could be considered abandonment and I can't tell if it would be wrongful termination on these facts.
You could possibly still get unemployment.
Do you believe that they knew you were in jail or knew you were having alcohol issues?
On that particular day?
They could fire you because you were in jail. They couldn't fire you because you were having alcohol problems unless they could prove that the alcohol problems were negatively affecting your work performance.
Also, do you know if anyone else has been fired for being arrested or going to jail? Or has anyone been in your situation but was not fired?
I agree - but they chose to fire me for abandonment of job. I understand that term to be the same as voluntary resignation - knowing I was not allowed to have the time off and taking it anyway.
The stated reason isn't always believed by a jury and especially when you had accumulated time off that could be used and someone called in for you or contacted them.
And, yes, there are lots of people who have been arrested, gone to jail and still kept their jobs.
Unless they do this anytime a similar scenario happens then you have at least the beginnings of a case.
You may want to go and get a local employment lawyer and start the proceedings through the EEOC for discrimination based on age, gender, and ADA.
Since they let some people get away with it and not you, then there is a definite chance you can make a case.
However, for these claims you always have to go through the EOC first.
Interesting. Let' go back to your point that I could still collect unemployment. Really? What do I say to the deputy conducting the hearing?
You would argue that you didn't abandon your job. You had a personal issue and followed protocol for what you were supposed to do. You also state that you believe it was a termination for other reasons and not because of the stated reason.
I see. Can one collect if fired for "misconduct"?
No, usually not.
Let me rephrase that
Misconduct usually means "for cause". For cause is when you do something specifically against the employer's interest. Missing a day of work wouldn't qualify for that.
It is only something like stealing, drinking on the job, etc.
Well that's what the notice from unemployment said - they are calling to determine "whether or not I was terminated for misconduct"
I don't think missing a day of work qualifies as that definition. Plus you explain that you followed protocol for missing a day and that other people are allowed to miss following the same protocol.
It wasn't a day - it was six working days.
As long as it was the same protocol and you had the time off then it doesn't matter what length it was.
The documentation you have would also allow you to argue it was a reduction in force.
that's what I think too!
You should be able to collect the unemployment.
You may get denied initially, a lot of people are denied by the "front line people" at the unemployment office but if you appeal you should be okay.
Well, I love hearing you say that. So, your advice would be to do my best at the phone hearing, appeal if necessary. Is there anything specifically on the EEOC website I should refer to before contacting a local attorney?
Correct on the unemployment issue. As to the EEOC, no just go talk to the lawyer first and then follow their directions. Some like to be involved early and some don't.
Dwayne, you were worth every penny of the $58 -- is there anything else you can share with me to help me?
No, not at this point I think we have covered everything. If you need me in the future just start the question with FOR DWAYNE B and I'll pick up as soon as I see it. I'm online most days for at least a few minutes.
And thanks for the compliment.
You're very welcome and best wishes to you. Please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.
I'll exit now to assist others.
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