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My husband is 68 almost years old have never been fired from…

Customer Question
My husband is 68...

My husband is 68 almost 69 years old have never been fired from a job retired after 32 years at freightliner, then over 11 years with SCI corporation. Was recruited by another company in mortuary business and was fired after seven months saying he dented the company car and did not notify employer. My husband did not know the vehicle was damaged, the damage was on the roof of a high van. Know being denied UI. Employer discussed with UI office of off duty car accident a hit and run which he was the victim an had nothing to do with employer or UI claim. He have appealed the decision do my husband need an attorney at this time?

Lawyer's Assistant: Was the termination discussed with a manager or HR? Or with a lawyer?

No this is a small family business.

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

At will it's hourly in Portland Oregon

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We are senior citizens and need the money at this time.

Submitted: 4 months ago.Category: Employment Law
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3/16/2018
Employment Lawyer: John, Employment Lawyer replied 4 months ago
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 6,009
Experience: Exclusively practice labor and employment law.
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The Oregon Employment Department routinely denies claims based on findings of "misconduct." In fact, misconduct is the most common basis for denial of claims.

The term "misconduct connected with work" has a specific meaning under Oregon unemployment law. ORS 657.176(2)(a) and (b) disqualifies employees who were fired or suspended due to "misconduct connected with work" from receipt of unemployment benefits. As further clarification to ORS 657.176, OAR(###) ###-####3) defines misconduct as follows: "A willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct." An act or series of actions that amount to a willful or wantonly negligent disregard of an employer’s interest is misconduct. The willful or wantonly negligent failure to maintain a license, certification or other similar authority necessary to the performance of the occupation involved is misconduct, so long as such failure is reasonably attributable to the individual.

Misconduct does not include isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience.

The issue in many appeals comes down to whether an employee engaged in a "willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee." By statute, misconduct does not include mistakes, isolated instances of poor judgment, or other areas where employees are trying their best but simply not succeeding. It is important to note that employers bear the burden of proving misconduct. In other words, employees are not legally responsible for proving their innocence.

Willful violations typically describe situations where employees are accused of knowingly violating a rule.

indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have known that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.

In this instance, I would have to opine that this is a good faith mistake on the part of your husband. I'm not sure how someone is supposed to know there is a dent on the top of a van. Even if reporting vehicle dents is a rule of the job and failing to do so would be misconduct, which itself sounds contrived, a dent on the roof would not normally be found as willful and wanton. I don't really think you need an attorney for this, but it wouldn't harm the matter.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers (even though the website already charged you, it does not credit me with the answer unless and until you indicate you are satisfied with the answer). If you are on a mobile device, you may need to scroll to the right. Thank you, ***** ***** wish you all the best with this matter.

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Customer reply replied 4 months ago
This did give me most the of information I need. My only concern is We , or he need to know before the hearing what all what's in the employer report so he can prepare for the appeal hearing, is this something that can be obtained before the hearing?
Employment Lawyer: John, Employment Lawyer replied 4 months ago

Yes, the file can be obtained by calling the agency beforehand and requesting it. Likewise, you have to submit any documents you wish to present as evidence to the judge and employer. Hope this helps. Thanks

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