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LadyLawyer, Lawyer
Category: Employment Law
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Experience:  Employment Lawyer
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My question is regarding being denied unemployment benefits by TN Dept of Labor code 50-7-303.  I submitted a detailed question prior to this posting explaining my situation.  Did you receive? I think it was lost because I also had a question regarding your terms/agreement that I couldn't view.  Anyway, previous explanation was detailing that I worked for small dental office as RDA, had to be out of work for 5 days in January because 2 year old daughter was admitted to hospital for week in critical condition with pneumonia and RSV virus, and then sent home with oxygen.  I had to stay with her in hospital for 5 days and was out 1 day after release so oxygen could be setup at home.  My mother was then able to stay with daughter. Gave employer written excused absence. No problem was expressed, just concern for my daughter.  Approx. 3 weeks later daughter was admitted to ER during night for severe stomach virus/ dehydration. Was not released until next day.  Missed one day. Gave employer written excuse. My mother was then able to takeover care of my child so I would not have to miss work.  I was given no verbal or written notice there was a problem with these two unfortunate absences. In fact, I was given bonuses for exemplary employee and bonuses for reaching our office goals as part of the office team.  I am a single mother and this was a huge surprise to me to be suddenly fired.  I filed for unemployment benefits on 3/11/13 and received denial letter today with right to appeal.  Letter stated claimant was discharged from employment for unacceptable attendance. The employer had warned the claimant about violating attendance standards. Final incident was due to tardiness.  I was not tardy.  I do not have a copy of employer's attendance policy.  I understood 3 unexcused absences were basis for termination.  Do I have any legal recourse?  This is my first RDA job and I regret not keeping my own records.  I did not keep copy of written excuses from hospital, just turned into office manager. Do I have a right to request records from employer?  I worked hard for this dental office and even attended educational courses after hours without compensation.  Please advise what legal recourse I have and how to appeal denial of unemployment

LADYLAWYER : Hello, Thanks for choosing! I look forward to helping you with legal information today.
LADYLAWYER : So sorry to hear about this. I hope your daughter is doing better?
LADYLAWYER : Were you under any sort of employment contract with your employer? Have you already requested a copy of your employment records and been denied?
LADYLAWYER : I see you asked this question several hours ago and are not currently online. I just got online myself and need to attend to some follow up questions from customers I helped earlier today. I will check back in before I sign off but if you haven't yet replied to my questions, please just reply when you are able and then I will answer you as soon as I can later today. Thanks so much!

I just received the letter today from TN Dept of Labor today denying unemployment benefits and I have 15 days to appeal. I don't know the best way to proceed from this point. I have not requested a copy of my employment records from my employer and I was not under contract with him. Should I ask for my employment records from my employer? I'm sure if my employer just provided TN Dept of Labor with attendance record it would automatically appear there was an attendance problem. But with my situation with hospitalized toddler, I was hoping they would reconsider. The dentist I worked for praised me for being such as good registered dental assistant, especially for my first job, and has advised me he will give me a high recommendation. I believe I was fired in large part due to the office manager at the dental office, which is neither here nor there. I just really need to know how to provide evidence to the Labor Board that this was a medical situation where my toddler was in ICU, I'm a single mom, I'm looking for work everyday, and I need this unemployment help until I can find another job.

LADYLAWYER : Thank you!
LADYLAWYER : I can tell you that 9 times out of 10, a person is denied benefits and then granted them on appeal.

That is good news.

LADYLAWYER : If you haven't asked for your employment records, you should do so, yes.
LADYLAWYER : they probably won't give them to you, but they are supposed to allow you to view them.
LADYLAWYER : In any case, just appeal, state what you have told me here, and then the burden will be on the employer to prove otherwise.

So I should call the dentist and ask if I can pick up a copy of my records?

LADYLAWYER : They are supposed to give you IE benefits unless you have done something outrageous, but again, they are now usually awarded until you appeal.
LADYLAWYER : When they say no, you can state that in your appeal.

The letter from the TN Dept of Labor said there will be a hearing. I cannot afford an attorney. I should just be prepared with what I have stated here. I don't even have copies of excuses as I turned them into the office manager.

LADYLAWYER : That is okay, your employer will be asked to provide a copy of your file. You just tell your version of events and let the DEPT know what you turned in and when. It's okay that you do not have an attorney.
LADYLAWYER : Most people don't and the hearing is set up so they do not have to.

Okay. Any other documentation you can advise that I bring to hearing? I believe the employee handbook stated something like days missed because of illness of family members were not excused. Would hospitalization of child be considered legally as an illness?

LADYLAWYER : Just remember that your employer MUST prove "misconduct" on your part. Right now, you are appealing in order to make the employer prove misconduct. Specifically, in order to prove disqualifying “misconduct,” the employer can show any of the following:Conscious disregard of the rights or interests of the employer (like those employees who start their own competing company on your time/using your equipment!);Deliberate violations or disregard of reasonable standards of behavior that the employer expects of its employees (“deliberate” will still require proof of notice of such standards);Carelessness or neglect of such a degree or recurrence as to show an intentional or substantial disregard of the employer’s interest or to manifest equal culpability, wrongful intent or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer;Deliberate disregard of a written attendance policy and the discharge is in compliance with such policy (the “deliberate” language here may still provide some wiggle room in the “my child was sick, my car broke down, etc., I couldn’t help it” situations);A knowing violation of a regulation of this state by an employee of an employer licensed by this state, which violation would cause the employer to be sanctioned or have the employer’s license revoked or suspended by this state; orA violation of an employer’s rule, unless the employee can demonstrate that he/she did not know, and could not reasonably know, of the rule’s requirements, or the rule is unlawful or not reasonably related to the job environment and performance.
LADYLAWYER : Misconduct has to be serious and generally, with absences, it has to be considered repeated and deliberate, with reckless disregard for the employer.
LADYLAWYER : Your doctors will have copies of the notes they gave you; see if you can get copies thought them.
LADYLAWYER : *through

Okay, thank you. I understand more about it now and it cannot be said I did anything with reckless disregard for my employer. It was just very unfortunate circumstances. Thank you for your advice.

LADYLAWYER : You are most welcome! If you have any further questions, I am most happy to answer them! I strive for an excellent customer service rating, so if you need any additional help with this, just let me know. If not, would you kindly consider a positive rating for me at this time? It costs you nothing further to do but it does allow the site to compensate me for helping you. Thanks!

Yes, I will rate excellent service. Thank you.

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