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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
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Experience:  20+ Years of Employment Law Experience
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Fact-Finding Interview Questions

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I was fired on 10/3/11, 5 days after my hire date anniversary (9/27/2010) because I do not meet the volume of work the company expects from me (lack of work). I also asked what was the basis for the volume of my work not being fulfilled. I was just told that they monitor all employees and that I do not meet their expectations anymore. I then asked why I was not given a warning that I was already lacking in performance so that I had the chance to improve (I was in charge of file mail and organizing physical client files in the filing cabinets, scanning physical documents and attaching digital documents to the clients' digital file) HR just retaliated with her catching me on my personal phone one day she did not warn me for that on the spot . I told her that the reason for me being on my phone is that I was coordinating with my sitter to pick up my son because I received a call from his school that he was sick and needed to be picked up, which was the truth. Also she said that the department meeting we had last week was like the "eye opener" talk to do a better job. I was never reprimanded for misconduct and if I was, it did not happen again. I was never given a performance evaluation not even once, not even on my 90th day. So I was never made aware at any point when I started "not being a good fit" for the company , if they had performance problems with me it was never addressed to me personally and properly so I could improve. Just today, I received a letter from the Virginia Employment Commission informing me of a fact-finding interview since an issue has been raised concerning my eligibility "whether or not I was discharged or suspended for misconduct". It could be two things, its just procedure or my ex-employer disputed my claim so they won't pay higher tax rate. What I need to know is how to prepare myself for this interview so I will be able to defend myself and my right to this benefits. Believe me, I have been looking for a job since day 1 but with no luck and I am a single mother supporting 2 children so this benefit would help my family a lot. Is this something that I need to be fired up about? I am because my ex-employer is a law firm and definitely would know a lot than I do so I feel like I am at a disadvantage here. Any help that would direct me to the right information or help in a very good advice on what to say to the deputy and prepare on how to defend myself against possible arguments that my ex-employer would bring up would be greatly appreciated. Thank you for your time.
***I also wanted to add that they also gave me 2 weeks severance pay. Would that be a good argument if my ex-employer disputed my unemployment benefits claim? Would it look like they are contradicting themselves if they dispute my claim because of discharge due to misconduct which is the reason for my fact-finding interview and the HR director also told me that I can file for unemployment benefits after I signed the termination papers and I left amicably.
You really should engage a local unemployment law attorney and most all of them do these cases with no money up front for a percentage of the benefits they win for you. However, that said, you would have to present evidence that the conduct they are complaining of was not significant misconduct and that you never received any notice of performance issues. Typically, in these cases if the employer cannot prove your performance issues without actual documentation, then they will not win their case, but you will still have to go through the appeals process and it is up to the employer to produce actual evidence that you committed some job related misconduct and then you would need to present witnesses and evidence of no notice of any performance issues to counter their allegations.

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Customer: replied 5 years ago.
Relist: Answer quality. I preferred an answer with a lot more detail on what I can do to prepare(besides seeking help from an employment lawyer) and what to say. I am not in the appeals process yet but only on the telephone review. Is it always procedure to have the telephone interview or ONLY IF a dispute from an ex-employer would trigger this fact-finding interview? Also, I am asking if my ex-employer would be contradicting their dispute when they fired me and gave me 2 weeks severance. The law does NOT require employers to give severance pay to a departing employee. If I were fired due to misconduct they have the right not to give me severance pay because they fired me due to it. They sent me my last two paychecks (my severance) and I am keeping that for evidence if I am right about my ex-employer contradicting themselves if they fired me due to misconduct but still granting me severance of two weeks. Even if I was fired because of performance issues/lack of work, that will still entitle me to unemployment insurance. Performance issue is not the cause for the interview, it's "whether or not I was discharged or suspended for misconduct". That is what the Deputy of the employment commission will discuss with me, and this phone call may be a 3 way call with my former employer. I need to know how I can properly defend my right to my unemployment insurance to give me that financial security until I find a job. What are the right arguments to say and keywords to use and to not say.Thanks.
I am so sorry, but as experts we have no idea what the customer needs or wants more or less of unless they tell us.

Yes, all it takes is the employer filing a dispute over the unemployment benefits. If they had you sign a severance agreement then that agreement is evidence for you in the appeal and you need to mention it. However, just because and employer grants severance does not necessarily mean it was not misconduct, but it is at least an indication that there was a mutual agreement on the departure.

Performance issues COULD be the ground to deny benefits, but it depends on how severe those issues were.

We cannot tell you specifically how to defend yourself because naturally we do not know all of the facts in your case. Remember they can only deny your benefits if 1) you were fired for significant misconduct directly related to employment and 2) if you voluntarily quit without good cause and there are no other reasons. Thus, your defenses have to be built on either of those two elements to show that neither of them exist in your case.
Customer: replied 5 years ago.
Thank you. If it was a performance issue, the company nor my supervisor never addressed it to me so that I could do a better job, I always did what was assigned to me and never complained. When they let me go they told me that "the volume of my work does not meet their expectations any longer" that is why they fired me. I never willfully and maliciously engaged myself in any actions that were against my ex-employer's best interest. I was once told that shorts and flip-flops are not allowed (worn on a Casual Friday)and I never wore them again. I was asked if at some point I blocked an always locked back door entering the office, I admitted to it because I did not have a key and just needed to go to the restroom which is right beside that door. I did that on a Saturday too! No clients nor co-workers that would be allowed restricted entrance. I was honest and was "warned" not to do it again and I did what I was told, I was also told that act was a good cause for immediate termination (since it was a security issue) but was not terminated. So that cannot be the issue. I was just warned. No written document was signed. If it's attendance, I always filled out a leave form and informed my supervisor or HR if I will be coming in late or cannot come to work at all, and always with a viable reason. So I just need to be prepared on Number 1, given the above, except for the "door" incident but was not terminated for it (which cannot be the issue, right?), I cannot think of a significant misconduct to deny my UI.Your thoughts?

BTW, thank you for your time and effort in helping me with this.
The lack of any documentation and notice to you regarding performance is your defense, since the employer has to prove that there is a real performance issue and without documentation they cannot do so. None of those issues you mentioned are really severe enough for denial of benefits. Attendance may be a valid issue for good cause, no matter you filled out a leave form or notified them of being late or not coming in because the employer has a right to expect their employee to come to work even if the employee is filling out leave forms or even if they have doctor's excuses.
Customer: replied 5 years ago.
OK, it only came to a point wherein I was informed I have no more paid sick/personal leaves so I will not be paid with my leaves. I was not warned that my attendance is becoming an issue to them. Again, no documentation. My next question is, since the employer has the burden to give evidence of misconduct, can a "created evidence" be held of importance? and if I know for a fact that the evidence is inaccurate can I actually disagree with the presented evidence? my ex-employer's words (a law firm) against mine?
See, now you are adding in a fact, which you did not think anything of, which is indeed good cause for termination. Attendance, as I said, is a very big issue with unemployment and if an employee is not showing up for work or is late, this all by itself is sufficient even without warning to constitute good cause, so you better hope that they do not raise this as an issue because this one is very hard if not impossible to defeat.

They cannot "create" evidence after the fact, such as written warnings to you or written documentation of your misconduct. You can disagree with the evidence you present and then you have to present your own evidence to contradict their evidence.
Customer: replied 5 years ago.
Can you actually make attendance problems as misconduct to be disqualified of UI then? I was never reprimanded for my attendance just informed with no signed documentation that I was that I had no more paid sick/personal leaves which I exhausted a month before my leaves would reset because I will reach my first year working for the law firm and the reason I exhausted my last 16 hours of paid leaves (which I was saving for emergency purposes) was because I tested positive of strep and even went to work the next day wearing a mask and was sent home by the HR director herself. I had to request a doctor's note to be able to come back to work, which I have a copy of. I am not a habitual late comer, and only called in sick when I was really sick or there were emergencies with my kids, that can be proven with medical records. If ever I came in late it was because I had doctor's appointments and physical therapy(which again was caused by the company, by not giving me a proper working space and just a 15 inch laptop, but a diff. issue I prefer not to elaborate), to make it short when they terminated me I was only negative 6.5 hours in attendance and that is even after my hire date anniversary, should my leaves would have reset they did not mention it and did not reset it, to include in my severance. My point is, even if it were a fact that I exhausted my paid leaves, I used them only when needed, since if I were a habitual late comer or always "sick" I would have spent my paid leaves say, 3 or 4 months before my leaves reset. Take into consideration that I am a single mother of a 6 and 4 year old both going to school, so I divided these leaves among 3 people who may have emergencies, sick or doctor's appointments. Correct me if my reasoning is wrong, but if it were an attendance "misconduct" I do not see them being able to prove it mentioning my reasons. I also have a statement (text message) from a present employee of theirs that she has exhausted her paid leaves and was just not paid when she does not come in to work and she is always late. No warnings were given and was not even given a performance evaluation in her 3 years of working for them. Would a text message "statement" suffice?
Yes, they can make attendance into good cause to deny unemployment benefits. You do not have to be warned about attendance and the law looks at it as it is common sense to an employee that they are expected to show up to work. You were not there long enough to claim protection under the Family and Medical Leave Act, because you had to be there for 12 months and had worked at least 1250 hours before you could even have asked for that. Just because you were really sick or your kids had emergencies this is not considered the employer's problem by the courts. Additionally (and while it may seem like I am hammering on you, this is just what the courts and unemployment appeals keep saying in all of the cases), the employer can insist employees make medical appointments and other appointments on their own time and not the employer's time. Thus, you can see you are fighting an uphill battle if they are raising the attendance issue as good cause.

Also, statements from other employees really does not help unless you are arguing that this is being done to you only because of your age/race/sex/disability and the other employee is in a different class than you are.
Customer: replied 5 years ago.
I was hired 9/27/2010 and terminated on 10/3/2011. Would that count? Please know that I just moved here in the U.S.A from a different country where I was born and raised. So if some employment laws may be common sense for anybody from here or have been staying here for a long time most of the laws are not common sense to me as I am still learning about it.
No, the time you took off you were not there sufficient time and did not work enough hours to have asked for leave under FMLA. You acquired your 1 year after that.
Customer: replied 5 years ago.
Ok. So what can you advice me then? To hope that they will not raise an attendance issue as misconduct since this is where you see my case's weakness? If they do, I will be disqualified and cannot file an appeal because of it. Other than that, am I safe with all otehr issues that may arise?
On any of the issues besides attendance that they raise you have to present evidence that minimizes that as misconduct and make it seem either minor or prove it did not occur because of their lack of documentation. As far as the attendance issue, all you can do is present the facts surrounding your absences and that the employer approved them to try to minimize those absences as good cause, which is going to be a tough argument to win with, but the best one you can make on that issue.
Law Educator, Esq. and 4 other Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
One last thing. It says in the letter that I can send any written documents I wish to be considered before the telephone fact-finding interview. Can I send in my paychecks and paycheck for my severance pay, medical records or any documentation with my explanation, that may be relevant to the case?
Yes, you can send all of that in by mail as support for your case.