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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 111576
Experience:  20+ Years of Employment Law Experience
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I filed and I was denied because my

Customer Question

I filed for unemployment and I was denied because my employer said I violated company policy but there is no company policy about what I supposedly did. I worked at a nursing facility and I was suspended because of an alledged incident that occured on
my shift which was interanally investigated and investigated by the State and found to be untrue. My boss had called me and said I wasn't to speak to anyone while under investigation but i called my nurse and my boss asked if i called my nurse & i said yes,
then she said this is a serious matter, not to speak to anyone or I could be fired, so after I received that warning I did not speak to anyone. The policy book does not state I can't talk to anyone during investigation it says can't talk to anyone outside
the company. Plus I never received any warnings until after I told my boss I spoke to my nurse then she warned me I could be fired if I did it again and I then said nothing to anyone but they told unemployment I failed to follow a rule. I've worked there for
years without any write ups. I have appealed but what are my chances of getting this approved and what can I do to improve my chances besides hiring a lawyer? In accordance with Section 4141.01(R)(2) of the Ohio Revised Code, the Ohio Department of Job and
Family Services has DISALLOWED the claimant's application for unemployment compensation benefits dated 06/02/2015 due to a disqualifying separation from employment or other reasons described in the following text: The claimant was discharged by ------------------------------------------------------.
on 05/20/2015. The employer discharged the claimant for violating a company rule. Evidence supports negligence or willful disregard of the rule on the part of the claimant. Evidence also allows that violating the rule was in connection with the work, did materially
and substantially affect the employer's interest, and that the rule was reasonable, known and uniformly enforced. Ohio's legal standard that determines if a discharge is with just cause is whether the claimant's acts, omissions, or course of conduct were such
that an ordinary person would find the discharge justifiable. After a review of the facts, this agency finds that the claimant was discharged with just cause under Section 4141.29(D)(2)(a), Ohio Revised Code. Therefore, no benefits will be paid until the claimant
obtains employment subject to an unemployment compensation law, works six weeks, earns wages of $1422, and is otherwise eligible.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,Thank you for the information and your question. Just to make sure I am clear on the facts, this is your first appeal of denial of your benefits you are getting ready for, correct? Also, you were terminated for speaking to another nurse about the investigation before you were warned about not doing that correct?
Customer: replied 1 year ago.
yes correct
Customer: replied 1 year ago.
That nurse was also suspended and being investigated during this time. I only called her out of curiosity to ask why was our shift being blamed for the alledged incident and she didn't know. Nothing else was said but employer claims I interferred with investigation. I received a second call asking if I called her and i told my boss yes, and then she warned me not to speak to anyone because she'd hate to have to fire me. Then 9 days later after being suspended I get a call from her telling me I am being terminated from my shift. It doesn't make sense. If I did something out of policy why wasn't I fired then when I told her I called my nurse? Why would she bothering warning me if I speak to anyone again I could be terminated? I don't see how I lost this decision from unemployment.
Expert:  Marsha411JD replied 1 year ago.
Hello again and I assume correct on both fronts. First, just to explain the process a bit more, it is your employer, upon appeal, that carries the burden of proof to show that there was a policy, you knew about it, and you violated it. They can't just make a claim, they must have evidence. It sounds like they cannot meet that burden with the stated policy. You will, of course, have a right to testify and present your side of the facts. If you have copies of the policies you noted, then you will want to provide them to the Hearing Officer. If you don't have them and they are helpful to you, then you can ask the Hearing Office to subpoena them for your use. They can also subpoena anything else that you believe will help in your appeal.It sounds like the facts are in your favor and as long as you just stick to the relevant facts, the State will likely find in your favor.Just a note, this is not a Chat, so I cannot stop and read what you have written after I have started a dialog. If you want to add something or ask a question, feel free to do so after you receive my response.
Customer: replied 1 year ago.
This employer has told everyone before that when they fire you that they make sure that unemployment is denied. This employer according to Unemployment officer said they have proof of evidence? There's no proof of anything, I admitted I called but when I received the warning not to do it again I never did. They claimed they had multiple witnesses say they knew about me calling a nurse but how is that when I told her myself I called? How can they use that against me when I admitted it and when she gave me a warning NOT to do it again? This company was taken over last year by new management and has been weeding out all ex-employees of the company of every department.--------- In accordance with Section 4141.01(R)(2) of the Ohio Revised Code, the Ohio Department of Job and Family Services has DISALLOWED the claimant's application for unemployment compensation benefits dated 06/02/2015 due to a disqualifying separation from employment or other reasons described in the following text: The claimant was discharged by ------------------------------------------------------. on 05/20/2015. The employer discharged the claimant for violating a company rule. Evidence supports negligence or willful disregard of the rule on the part of the claimant. Evidence also allows that violating the rule was in connection with the work, did materially and substantially affect the employer's interest, and that the rule was reasonable, known and uniformly enforced.
Customer: replied 1 year ago.
My question was how does their evidence support negligence or willful disregard of a rule when she told me not to do it again? There's no rule about not speaking to anyone under investigation, EXCEPT, if they're outside of the company. Though the policy book does say this policy book it not complete and just a general policy and can be changed anytime.
Expert:  Marsha411JD replied 1 year ago.
The employer doesn't approve or deny unemployment, only the State can after an employer disputes a former employee's eligibility. So, the information I provided you before still applies to this situation. It is their burden and they must prove it, not just make allegations. As I also stated, if you have evidence that the policy is not what they say it is, then you introduce that and give your side of the story.As requested before, please do not post after you have already sent me a response. This is not Chat. I will respond this time but if have additional follow up WAIT for me to respond please, then post them.As I pointed out, if the policy doesn't exist, then the employer cannot carry their burden of proof that you intentionally or through gross negligence violated. The initial dispute is not evaluated, it is just accepted and then you have a right to appeal. So, the State doesn't have all of the evidence yet, so they can only make an initial call based on allegations.
Customer: replied 1 year ago.
Okay. But the State denied it and said I had to appeal within 10 days. This is my first appeal. So does everything still apply what you said previously?
Expert:  Marsha411JD replied 1 year ago.
Yes, this is exactly what I was referring to. The State automatically denies when an employer disputes and then you must appeal and the employer has the burden of proof that I have discussed on the appeal.
Customer: replied 1 year ago.
Sorry that I've upsetted you and if I seem to be asking the same questions but I'm trying to understand completely.So if my boss says I broke a verbal rule because she told me over the phone not to talk to anyone, but I spoke to my nurse, is that enough reason to get me disqualified for UI. This was a isolated incident and I thought I was helping my employer by asking my nurse to see if she knew anything of the incident and why our shift was being blamed but turned out she didn't know. I only remember my boss going over the incident, I do not recall her telling me of any consequences or not to talk to anyone, until the second call, which she said its a serious matter and she'd hate to have to terminate me and if I speak to anyone I could be terminated. She only told me during the first telephone call that the matter was going to be turned over to the prosecutor and investigated by the police and State. What would be the best way to prove and defend against this in the hearing besides my words against hers that I violated her verbal rule not to talk? This employer claims she has multiple witnesses say I knew I violated her verbal rule which is false and they are employed in corporate so they will say anything to side with the company though they know this is false. It was not a rule until the second call and I did not get a warning until the second call not to speak.I have my handbook but it doesn't say anything about speaking to someone during investigation and I know you said the employer has to prove there is a rule but what if the judge wants to know why I spoke to during an investigation. Also, I want to State this employer called me when I was at home 4 hours after my shift and I was never on the clock or at the premise so would this make any difference to bring up?
Expert:  Marsha411JD replied 1 year ago.
You're not upsetting me but I would ask that you thoroughly read my responses, as we have covered these issues more than once. I do want you to understand the law, but also would ask that you step back and reread everything that I have said. In any event, if you were directed not to do something and you did it anyway, then that would be insubordination, which is "cause" or misconduct. I can't second guess what is happening in your specific case since I do not have the facts from the employer's perspective. I can only discuss the law, which I have. This verbal issue is different from what you have been speaking of up to now.
Customer: replied 1 year ago.
This was a verbal issue over the phone and I was called 4 hours after my shift was over and I was at home that an alledged incident happened and that my shift is being investigated. I was suspended over the phone and told over the phone (2nd call) not to speak to anyone. I was only told during first call that it was being investigated. So if I am off the clock and an employer gives a ''rule'' I still have to follow it?So it's 'cause' if my ex employer call me back a second time to ''warn'' me if I speak to anyone I would be terminated and she'd hate to have to terminate me so don't speak to anyone. I didn't speak to anyone anymore when she made this clear not to. But if she feels I broke her rule because I called the nurse and I admitted to her on the second call then why would wait 9 days later to fire me?
Expert:  Marsha411JD replied 1 year ago.
Alright, as I mentioned, if you are told not to do something by your employer and you do is AFTER you are told, then that can be considered insubordination. It is up to the hearing officer to decide if that happened after hearing the facts from both sides. It doesn't matter when or where an employee is told, as long as it comes from the employer and has to do with work.
Expert:  Law Educator, Esq. replied 1 year ago.
I am sorry, you have opted your previous expert out so she cannot reply to you any longer. However, to this point her answers have been absolutely 100% correct based on the information you have provided her.
If you wish to continue with your expert you need to opt them back in so they can respond. If not, what other new questions did you have, because up to this point the previous expert's answers have been correct?
Customer: replied 1 year ago.
I would rather not opt her back...she seemsto be frustrated or upset and not quite understanding what I am trying to ask though she explained the law but not the exact question I asked.And sorry but I'm typing from my cell. My question was can it be considered misconduct if I called my nurse if my boss told me there's going to be an investigation but made no mention of not talking to anyone until she made the second call and asked if I spoke to someone? I told her yes my nurse.. my boss she said not to speak to anyone or I could be fired. This was her first warning and mentioning of not talking to anyone on the second call. And I didn't. But she twisted this and used my calling a nurse as misconduct even though this was not a rule until the second call after the call was made. How would I be able to show evidence of this because it's basically my word against theirs
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply. I am sorry you feel that way, as she was absolutely correct in what she told you, but as you wish.
If nobody told you that you could not speak to anyone about the investigation and there is no written employer rule about not speaking to anyone about an investigation, then it is NOT misconduct related to employment such that it would be grounds to deny unemployment benefits.
If you talked to the nurse first and only subsequent to that you were told not to speak to anyone AND from that point on you did not speak to anyone, then you did not commit any violation.
The only way to show this is to call the nurse you spoke to as a witness and have her testify as to when you spoke to her to match the times as to when the boss told you to not say anything to anyone.
It does significantly increase an employee's chances on these cases, whether they believe it or not, to have an unemployment attorney representing them (unemployment attorneys do not cost employees anything up front, they charge a percentage of what they win for the employee in benefits).