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Samuel II
Samuel II, Attorney at Law
Category: Employment Law
Satisfied Customers: 27011
Experience:  More than 20 years of experience practicing law.
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I was discharged on 9/22/15. I had a meeting with my

Customer Question

I was discharged on 9/22/15. I had a meeting with my superior late afternoon. I was told that i was being separated for poor work performance. Earlier in the day, i was counseled for filing a late worker's comp claim on an employee. It was strange that i was being counseled. There was no indication it would lead to my separation, since it was not discussed at the time of my separation. I filed for unemployment and was notified that there would be a hearing because the employer was claiming misconduct. Failing to file the claim timely was a mistake, not misconduct. The act was not deliberate or willful. I have my unemployment claim in a few days
Submitted: 1 year ago.
Category: Employment Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

I am sorry to hear of this situation. Do you have any type of employee handbook or anything that you can use to show the policy of the employer as it defines misconduct?

I do not see where you list the state this is happening in. What state, please?

Customer: replied 1 year ago.
new jersey....employee handbook is more for union associates not mgt
Expert:  Samuel II replied 1 year ago.

Ok. Thank you. I suggest you have a viable argument.

Keep in mind that you should consider presenting the information in this manner.

First, you are correct. Isolated incidents of poor judgment are normally not considered misconduct. The employer must be prepared to show that the former employee's behavior is part of a pattern of misconduct. So you can bring that up - ask the employer to cite other instances to show a pattern. Misconduct that is part of a pattern by the employee, or which is considered especially egregious or potentially dangerous to the employer.

You also can ask about Knowledge. An employee must have an understanding of the behavior that his or her employer expected and be aware of the likely consequences of failing to meet the employer's expectations. Without a clear understanding of the expected behavior, it is often not possible to prove that the employee's actions were willful. And so ask your employer if they feel this was a willful and deliberate act on your behalf to purposely harm them.

Ask how your MISTAKE damaged the employer. A willful action or inaction must be harmful and present damage to the employer.

So if you know the answers to those questions are going to benefit you then I suggest you consider going in that direction. If you have never been reprimanded or written up before then I suggest you need to bring that out.

Expert:  Samuel II replied 1 year ago.

Please let me know if you have other questions in this regard. Keep in mind, I can only answer and provide information for what you ask. I do not know what you need to know, unless you tell me. Please rate positive as this is how I get credit for my time and information.

Thank you