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Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
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Experience:  Employment Law Expert
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I was fired from an $85,000 a year job - reason given was "abandonment

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I was fired from an $85,000 a year job - reason given was "abandonment of job" - "no call, no show." Because of a DUI, I was incarcerated and had an exec assistant from the company call and e-mail a message that I had a family emergency and needed the week off. I had unused vacation time, sick time and comp time and expected (like every year) it would be applied when needed. All I want is to collect unemployment benefits but the reason used will compromise that.

I have a written document stating my position would not be replaced until next year when a current employee will be given my sales responsibility, commission only.

Could this be a reduction in force? Was I fired because I'm a 66 y.o. woman with a good salary who may have a problem with alcohol and needed counseling? My system does not assimilate alcohol like a normal person (gastric bypass and allergy to alcohol) - was this a health condition compromising my ability to perform the job functions (FMLA)?

Do I have a cause of action for damages? Vacation pay and severance were denied.

There's a phone hearing on Nov. 14 to determine unemployment benefits. I've fed ex(ed)
my notice of absence, termination letter, letter stating I will not be replaced until next year and four years of excellent performance reviews. The 2013 one, however, reflects a counseling session for drinking so they were aware of my problem.

Was this abandonment of the job in the legal sense or unlawful termination based on the reason given? Any way of getting unemployment?

This is an unbelievable website - thank you for your valuable answers. Maggy

Dwayne B. :

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.

Dwayne B. :

Most of your questions are rhetorical and can't really be answered.

Dwayne B. :

I'll go ahead and address the ones that can be though and then we can discuss it in more detail.

Dwayne B. :

was this a health condition compromising my ability to perform the job functions (FMLA)?

Dwayne B. :

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.

Dwayne B. :

Was this abandonment of the job in the legal sense or unlawful termination based on the reason given?

Dwayne B. :

Yes, it could be considered abandonment and I can't tell if it would be wrongful termination on these facts.

Dwayne B. :

You could possibly still get unemployment.

Dwayne B. :

Do you believe that they knew you were in jail or knew you were having alcohol issues?

Dwayne B. :

On that particular day?

Customer:

both.

Dwayne B. :

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.

Dwayne B. :

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?

Customer:

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.

Dwayne B. :

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.

Customer:

And, yes, there are lots of people who have been arrested, gone to jail and still kept their jobs.

Dwayne B. :

Unless they do this anytime a similar scenario happens then you have at least the beginnings of a case.

Dwayne B. :

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.

Dwayne B. :

Since they let some people get away with it and not you, then there is a definite chance you can make a case.

Dwayne B. :

However, for these claims you always have to go through the EOC first.

Dwayne B. :

EEOC

Customer:

Interesting. Let' go back to your point that I could still collect unemployment. Really? What do I say to the deputy conducting the hearing?

Dwayne B. :

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.

Customer:

I see. Can one collect if fired for "misconduct"?

Dwayne B. :

No, usually not.

Dwayne B. :

Wel...

Dwayne B. :

Let me rephrase that

Dwayne B. :

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.

Dwayne B. :

It is only something like stealing, drinking on the job, etc.

Customer:

Well that's what the notice from unemployment said - they are calling to determine "whether or not I was terminated for misconduct"

Dwayne B. :

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.

Customer:

It wasn't a day - it was six working days.

Dwayne B. :

As long as it was the same protocol and you had the time off then it doesn't matter what length it was.

Dwayne B. :

The documentation you have would also allow you to argue it was a reduction in force.

Customer:

that's what I think too!

Dwayne B. :

You should be able to collect the unemployment.

Dwayne B. :

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.

Customer:

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?

Dwayne B. :

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.

Customer:

Dwayne, you were worth every penny of the $58 -- is there anything else you can share with me to help me?

Dwayne B. :

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.

Dwayne B. :

And thanks for the compliment.

Customer:

Thank you!

Dwayne B. :

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.

Dwayne B. :

I'll exit now to assist others.

Dwayne B. and other Employment Law Specialists are ready to help you
Maggy, thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR DWAYNE B” in the subject line or as the first words of your question and I will pick up as soon as I see it.

Also, I’d ask you to consider issuing a high rating (9-10) when you receive your customer satisfaction survey as that ensures I can continue to assist people in this category.