Employment Law

Employment Law Questions? Ask an Employment Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Employment Law
This answer was rated:

I was terminated for tardiness from my employer on 2/12/2013

in Pennsylvania. I applied for...
I was terminated for tardiness from my employer on 2/12/2013 in Pennsylvania. I applied for UC Benefits in Pennsylvania and the claim was initially denied-tardiness was willful misconduct. I appealed that decision and the hearing was held on 4/22/2013. The referee decided on 4/26/13 that I did not show good cause for my tardiness which determined to be willful misconduct. However, I DID present the evidence and good cause reasons for my tardiness during the hearing. I intend to appeal his decision to the Board of Review because he left out critical details of the hearing along with some other important information. I believe had he not done so, I would have probably gotten my UC benefits. Do you think that I can get the decision reversed by the Board because of the omitted information which showed good cause??

Here are the details of my situation/details of the hearing (including details of my testimony he left out):
1. I was employed with Company P from May 27, 2008 to Feb 12, 2013.
2. On October 10, 2012, the Employer placed the Claimant on a ninety day probationary period due to excessive tardiness.
3. My work schedule was 11am to 730pm (I would leave approx. 1030am using public transportation.)
4. On November 4, 2012 the Claimant was approved for intermittent Family and Medical Leave (FMLA) for any health related issues that occurred due to the Claimant's immune system medication.
(This is very incorrect-I told the referee: I was approved for FMLA in October 2011 for HIV related issues and side effects caused by my HIV medication, Atripla. Side effects included, but not limited to: XXXXX XXXXX problems waking up)
5. On January 11, 2013, the Employer extended the Claimant's ninety day probation an additional thirty days. The Claimant was advised that he was required to "report to work on time at 11:00 a.m. on each day when you do not have a medical-related tardiness .... "
6. During the thirty day period, the Claimant did have non-medically related lateness.
7. On February 12, 2013, the Employer discharged the Claimant for excessive tardiness.

My employer did not show at the hearing.

Here is the referee's reasoning:
The Claimant testified that he deals with a serious medical issue which would result in his being late due to the reaction to the medications he takes. The Claimant also testified that the public transportation would be late. The Claimant further testified that his probation was extended another thirty days in order for the Claimant to report to work on time when he did not have a medical-related tardiness. The record is clear that during the extended probationary period, the Claimant had additional dates where he was late and it was due to his medical issues.

(Those indicated dates were FMLA days where I was out the entire day or 1-3 hrs late. He left out details of my intermittent FMLA. If I had medical-related health issues, I could take an entire day off or I could let my employer know that I would be 1-3 hours late. I had to notify them at least an hour before my start time. These days off/tardiness periods were indicated on my timesheets as FMLA time. I also told him that I would often have trouble waking up, causing me to oversleep in the morning due to the HIV med side effects, if I did not wake up before 10am to notify my employer, I would still do my best to get to work and I would arrive a few minutes late-which was interpreted as habitual tardiness. I submitted proof via company memo that my arrival times were a only few minutes, 2 to 11 mins at most, past my start time. I also had to notify my supervisors even if I was going to be 1 minute late-which I did do every time per company policy.)

His decision continues:
The Referee does not credit the testimony of the Claimant. The Claimant testified that he would leave thirty minutes prior to his start time at work. The Claimant was aware or should have been aware that his employment was in jeopardy due to his habitual tardiness. At that point, it was incumbent upon the Claimant to leave earlier for work in order to deal with any unforeseen events such as passengers with wheelchairs who needed to be loaded on the bus, and issues with traffic or construction on the roads. Moreover, the Referee concludes that the Employer only counted non-medical related tardiness in its final determination to discharge the Claimant. Therefore, as the Claimant has not provided any good cause or justification for his non-medical related tardiness, benefits are denied.

(I did testify that some mornings I did leave earlier for the bus if I could and sometimes I did. I mentioned to him again about the side effects of my HIV medication which made it often difficult to wake up in the mornings, let alone earlier than I did already.)

My Conclusion: I believe that I gave good cause for my tardiness. HIV related health reasons and public transportation issues beyond my control. Do you think the Board would rule in my favor??
Show More
Show Less
Ask Your Own Employment Law Question
Answered in 36 minutes by:
5/7/2013
TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4,430
Experience: Contracts, Wrongful termination and discrimination
Verified
Hi,

Thank you for your question.

Are you saying that there are days when you were not ill and were not experiencing medically related side effects in which you were late to work only because of traffic problems?
Ask Your Own Employment Law Question
Customer reply replied 4 years ago

Yes, there were days like that too in the past. During the last 30 days of my employment (the probation period), I was late 2 days that were not FMLA tardiness. During the probationary period, I had 8 FMLA days out sick, 3 FMLA late days (advance 1 hr. notification), and 2 late days (by about 5 mins.) One of those days were probably due to my illness only, the other due to public transportation issues & my illness.


 


The referee did not ask that question specifically.


 


Honestly, I am sick every day-some worse than others. I have had HIV for 23 years.


 


Also, the employer, the HR director specifically, made a statement in their phone interview with UC service center prior to the hearing which was "He took advantage of the situation." Isn't that retaliatory or discriminatory in nature or something like that??


 

I think you should file a claim for FMLA retaliation with the US Department of Labor Wage and Hour Division (You will need to contact them to file the claim). http://www.dol.gov/whd/fmla/

I also think you need to file an ADA discrimination claim with the EEOC. www.eeoc.gov/field/

Both of these claims can result in back pay and reinstatement.

The Unemployment Commission does not necessarily understand the rules surrounding FMLA and the ADA. They may find against you because there were days when the illness did not cause your tardiness, and it sounds like you may have admitted to that. However, I encourage you to proceed with the appeal, as this sounds like a situation where you were being singled out.

An attack on all three fronts by you may end up winning the day!

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Ask Your Own Employment Law Question
Customer reply replied 4 years ago

Thanks for your reply! I do have a couple more questions:


 


Do I need to get a lawyer involved to submit a legal brief or can I appeal with the details that were left out as I did for you here? I read that it's not required, but increases my chances cause an attorney could cite precedent cases in PA. One precedent that I've seen often is that "Illness, properly reported to the employer does not constitute willful misconduct." Brown v. Unemployment Compensation Board of Review, 854 A.2d 626, 629 (Pa. Cmwlth. 2004). So I think I have at least that one to prove my case.


 


I find it a little disturbing that the referee barely mentioned my medical condition, the actual medication I'm on, and its side effects. As if it was a minor thing or like it didn't matter. In fact, i remember him saying that it's (oversleeping as a specific side effect) not on FMLA request form. This was not the FMLA Certification he commenting on--it was the request form. So, in his mind, it's not written down so it's not a side effect of the medication I just spelled out for him?? Clearly, he's not an expert to make such a ruling.


 


My other question: I should mention the quote from the HR director in their telephone interview to the Board too, yes?? I don't see how my evidence can be interpreted as taking advantage of the situation.


 


The EEOC and ADA claims I intend to file as well, thanks for that!! Friends of mine suggested I do that a couple months ago, but it wasn't until I saw her statement that I felt that their firing me was a response to time I took off in February. I was out from Feb. 5, 2013 and returned the following Monday, Feb. 11th and was fired on the 12th.


 


Your thoughts??

If you get a lawyer involved, it definitely does increase your likelihood of recovery in all the claims. I think you hit it on the head that the UC examiner did not grant the proper weight to your medical issues. I think that statement that the HR director said is damning.
TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4,430
Experience: Contracts, Wrongful termination and discrimination
Verified
TexLaw and 87 other Employment Law Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago

Timing might be an issue for the UC Board appeal to get an attorney involved since the deadline is 5/13/13, but ill see if I can find someone tomorrow. I also contacted the Unemployment Project for help when I got my initial hearing info and they said they arent taking on anymore clients this year until the fall.


 


Although filing one is optional, do you have suggestions as to where I can look for examples of a PA legal brief?


 


Thanks again for your all your help!!! I really appreciate it!!

Sounds like a good plan. Unfortunately, I am not aware of where you could find an example of a brief. Because these proceedings are informal, I wouldn't worry to much about the form. If you are going to do it yourself, you may simply write it in a letter format.
Ask Your Own Employment Law Question
Customer reply replied 4 years ago

Ok, great I will do that.


 


Thanks!

Good Luck!
Ask Your Own Employment Law Question
Ask TexLaw Your Own Question
TexLaw
TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4,430
4,430 Satisfied Customers
Experience: Contracts, Wrongful termination and discrimination

TexLaw is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,184 satisfied customers

JD, BBA, recognized by ABA for excellence.

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

12,549 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

12,316 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

12,054 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

3,912 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

< Previous | Next >

Related Employment Law Questions
CIVIL - EEOC - Discrimination, Retaliation, Wrongful
CIVIL - EEOC - Discrimination, Retaliation, Wrongful Termination... How to WRITE/WORD the petition to the court for:One of the retaliations = Suspension without warning of the use of vacation time Jul… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
While on FMLA, I received wage replacement through my
While on FMLA, I received wage replacement through my employer. Can this compensation be reimbursed similar to sick and vacation by auto insurance company? … read more
Asad Rahman
Asad Rahman
Attorney
J.D.
2,296 satisfied customers
I have filed a complaint with EEOC under Age discrimination
I have filed a complaint with EEOC under Age discrimination and harassment. Had to resign from job at State agency 2 weeks after receiving PIP due to continuous harassment for more than a year, have w… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
I have a question about unemployment benefits and EEOC
i have a question about unemployment benefits and EEOC procedures … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I filed a discrimination/ retaliation claim; race; age claim
I filed a discrimination/ retaliation claim; race; age claim against my former employer with the NY State Division Of Human Rights. i received the respondents answers to my complaint. … read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,173 satisfied customers
I want to file a wage discrimination claim. I make $2.00
I want to file a wage discrimination claim. I make $2.00 less per hour than a coworker who does the same job. … read more
Marsha411JD
Marsha411JD
Lawyer
Doctoral Degree
12,316 satisfied customers
I will skip the entire story of discrimination, retaliation,
I will skip the entire story of discrimination, retaliation, and coercion by both my University Human Resources Department and my own Union Director (who did not read the fine print and refused to dis… read more
John
John
Employment Lawyer
Doctoral Degree
3,912 satisfied customers
I asked for FMLA PAPERWORK AND WAS FIRED. Arkansas I am also
I already have intermittent FMLA for narcolepsey and am covered by the ADA. I was fired because they said that I was over the companies 80 hour rule. However after further investigation. I was actually at 79.25 hours.… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I am filing for unemployment but have no wage earned other
I am filing for unemployment but have no wage earned other than workers compensation. how do I file as well get that information … read more
Michael Bradley
Michael Bradley
JD
1,193 satisfied customers
After having filed an EEOC discrimination complaint at
After having filed an EEOC discrimination complaint at Texxxxxxxxx xxxxxxx xxxxxx - one of the retaliations that occurred was a witnessed verbal assault by the supervisor, during a "review" meeting of… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I did a working interview while on unemployment and claimed
I did a working interview while on unemployment and claimed it and now have to open up a new claim. I'm fearful I will now not receive my benefits … read more
Ray
Ray
Lawyer
Doctoral Degree
30,899 satisfied customers
In a US District Court complaint are thier any retaliation
In a US District Court complaint are thier any retaliation laws or acts that could be used In a retaliation lawsuit against a state that would overcome a claim of state soveirgn immunity by that state… read more
Ray
Ray
Lawyer
Doctoral Degree
30,899 satisfied customers
I am doing my nj unemployment claims examiner interview
I am doing my nj unemployment claims examiner interview today … read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers
Nj Depart. Of Labor asking for refund of Unemployment
Nj Depart. Of Labor asking for refund of Unemployment Benefits from 2015 because I resigned from my parttime job., but I was awarded Benefits because my full time employer let me go. This request for … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
I am considering filing an EEOC claim of discrimination and
I am considering filing an EEOC claim of discrimination and retaliation. My employer was going to terminate me, but said I could resign instead. I had about 30 seconds to decide. I wrote a resignation… read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
1,003 satisfied customers
I have been harassed,discriminated and retaliated for years.
I have been harassed,discriminated and retaliated for years. I am a public school teacher 65 years old with an ADA letter of accommodations. My principal violates the ADA law, the union contract she h… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I went to the EEOC for age discrimination. They in turn made
I went to the EEOC for age discrimination. They in turn made me sign an AOF retracting it for 90 days severance. I felt I was forced to resign … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
After retaliation for FMLA filing, company holding my
After retaliation for FMLA filing, company holding my personal effects to get my company cell phone passcode. I don't want them reading my texts. What to do? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x