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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18854
Experience:  Employment/Labor Law Litigation
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I live in the state of and received a fact finding letter

Customer Question

Hi I live in the state of Virginia and received a fact finding letter about unemployment. The title says whether or not you were discharged for misconduct. It's ridiculous in my mind. How do I prepare for this?
Submitted: 6 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 6 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

There really is very little you can do to prepare. You don't have the burden of proof here. The employer does. They have to present evidence that you committed some act of misconduct that can block your unemployment. If they allege a minor act, they have to also prove that you had been warned against that misconduct and still did it anyway.

This will require something very specific from the employer. They can't just say that you didn't work out or that you didn't do as you were told. Those are performance issues and even if they can prove them, those do not rise to the level of misconduct.

All you have to do is respond to the fact finding letter concerning the circumstances of termination, and then wait to see what the employer says. You'll be given the chance to rebut their evidence. Unfortunately, until you see what they present, there is no way to prepare.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 6 months ago.
I asked a question. Not sure if it was received. I was supposed to send back a computer. I was waiting on a UPS shipping sheet and after 4 emails I told them "get you heads out of your asses"'via email. This is after I was officially terminated. Is that grounds for misconduct?
Customer: replied 6 months ago.
Will this be answered?
Customer: replied 6 months ago.
can you answer the question?
Expert:  Allen M., Esq. replied 6 months ago.

I'm sorry. It is Saturday and I'm working from home. I went to lunch and movie with my family, as you didn't immediately ask a follow up question.

Nothing after your termination would be considered grounds for your termination. Legally, it is not relevant. They had already made their decision.

Customer: replied 6 months ago.
Did you get my last question?
Expert:  Allen M., Esq. replied 6 months ago.

What last question?

The only last question I see regards ***** ***** to the employer "get your heads out..."

You asked if that would have any effect here. My answer is that it would not, because they had already made the decision to terminate you before that event. It is factually irrelevant because it took place after your termination.

Customer: replied 6 months ago.
I had a question - this employer put me on PIP performance improvement plan after they took me off of a project. The PIP lasts 4-8 weeks. At the end of it you either remain at the company or are fired. After telling me I was on PIP, they told me They had no work and that is when they terminated my employment. I told the Virignia Employment Commision that my employment ended because of a lack of work. This is true but the employer is denying this. They are saying it is a performance issue, specifically communication, attention to detail and taking ownership. I didn't get into this with the Commision. How do I broach the discrepancy - I don't need problems with the state.
Customer: replied 6 months ago.
Also why do are they saying misconduct when a letter they sent says communication, attention to detail and taking ownership. Wish I would have read the letter.
Customer: replied 6 months ago.
Termination letter that is.
Expert:  Allen M., Esq. replied 6 months ago.

You tell them just what you've told me. They put you on a PIP which is NOT a basis for blocking unemployment. Again, that is a performance and not misconduct issue. Even if their allegations in the PIP are 100% accurate, that doesn't block unemployment unless it is shown that you were intentionally not doing what you were supposed to do.

If they told you that they had no work, then that is the reason they gave you and you had every right to say that. Again, the employer bears the burden of proof here, not you.

Customer: replied 6 months ago.
But if the termination letter says otherwise, Is that a problem for me in the eyes of the state? Could they say, "the employers states in wasn't because of lack of work but performance," why didn't you state that?
Expert:  Allen M., Esq. replied 6 months ago.

You just tell them the truth, what they told you.

There isn't any special legal language here, so I'm not sure what you are asking me. There is no specific legal method. You tell them what the employer told you.

Even still, the basis in the termination letter itself is STILL not a basis for blocking unemployment. Performance based PIP's aren't a valid basis to block unemployment.

Customer: replied 6 months ago.
Thanks. I am assuming that their is no need to hire an attorney in my case?
Expert:  Allen M., Esq. replied 6 months ago.

I will never say "there is no need." That's just not something I will say.

That being said, your facts are clear and the law is very clear. If you need an attorney, it would be in an appeal after this initial process.

Customer: replied 6 months ago.
I have to ask, why are they doing this? What's in it for them?
Expert:  Allen M., Esq. replied 6 months ago.

Sometimes employers win.

If the employee doesn't show up or they think they aren't entitled to unemployment because they were on a PIP, then the employer saves money by not having to replenish their unemployment pool of funds that they keep with the state.

Customer: replied 6 months ago.
Could I hire you as an attorney?
Expert:  Allen M., Esq. replied 6 months ago.

No, you cannot for numerous reasons. I don't live in the same state as you. The rules of this sight don't allow for the creation of attorney/client relationships. I'm also about to enter an active duty military period, which would render me unable to have any clients.

Customer: replied 6 months ago.
What are your rates? How does it work? (IF your answer to the last question was yes).
Expert:  Allen M., Esq. replied 6 months ago.

My rates are low because I work for myself in most situations. I charge around $145 an hour or, if it is something like this situation, I'd set a lump sum rate of around $750 to $1000.

Expert:  Allen M., Esq. replied 6 months ago.

It's just entirely up to each attorney for themselves what they charge, typically guided by the local market.

Customer: replied 6 months ago.
Appreciate your help.
Expert:  Allen M., Esq. replied 6 months ago.

Take care and please rate my service before you go.

Customer: replied 6 months ago.
As I reflect upon this case, I believe they are going argue willful misconduct because I didn't respond to emails. For example, i forgot to check for a particular item on a checklist. The manager asked why I didn't check for it in an aggressive manner. She has a patern of being belligerent, rude and condescending. I didn't respond because i viewed the question as a form of bullying - however is did plan to address the issue in person. This was one of the reasons they fired me because insist resold to about three belligerent emails. These were for very minor issues. Is this willful misconduct? I think they will argue that it is.
Expert:  Allen M., Esq. replied 6 months ago.

They'd have to present the emails and then you'd be able to point out the hostility in the email.

Furthermore, that's not misconduct. At best, ***** ***** a performance issue.

If you have further questions, please ask them. If not, please rate my service. I do not receive any credit for answering your questions over the last two days unless you rate my service.

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