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  1. #1
    mjk75 is offline Junior Member
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    denied unemployment benifits due to gross misconduct resulting from off the job DUI

    What is the name of your state (only U.S. law)? Maryland
    Hello - I was terminated the end of September for a DUI offense that occurred in the beginning of June. I notified my employer immediately of the offense. They requested to be updated on any court proceedings and I complied. I received 12 points on my driver's license as a result of the DUI conviction and was told that was the reason for my termination. I was not aware that could potentially be an issue or I would have asked the court to decrease my points during my hearing. My license remains valid. The Personal and Policy Manual states that a good driving record is needed for 'hire'. I am in alcohol treatment which I voluntarily enrolled myself in the week following my DUI. I have not missed any work as a result of this issue nor am I unable to continue to perform my work duties.
    I received notification today that I have been denied unemployment benefits due to gross misconduct. Specifically, "The claimant's conduct was either a deliberate and willful disregard of the standards of behavior which the employer has a right to expect or a series of repeated violations of employment rules proving a wanton disregard of his/her obligation to the employer" My conduct was neither deliberate, intentional nor willful. I was under the influence of alcohol (again, off hours) and have been subsequently diagnosed with alcoholism - which in the state of Maryland is considered a disease. So my question is, how can I have deliberately and willfully violated employee standards when I was not in a rational frame of mind due to the effects of alcohol? All of my personnel evaluations have been outstanding up to this point. I was with the agency for eight and half years. This is my second DUI, the first of which was three years ago and did not result in a conviction (PBJ). I was not obligated to inform them about it (since it there was no conviction) but did anyway. At that time I did receive a letter to my home stating that further infractions could result in immediate disciplinary actions up to an including termination. However, I did not agree to those terms or sign off on them. I was simply sent a letter. I was not on any type of probation when this or that offense occurred, nor did the agency implement any provisions either time. Maryland is a 'fire at will' state, meaning they do not have to have a reason to terminate an employee, but since this was an alcohol related infraction, I am wondering if I have any leeway... probably not with getting my position back but at the very least obtaining unemployment benefits? BTW, this is evidence of the destruction alcohol can reap on one's life... I have remained alcohol free since the night of my DUI and continue to faithfully attend my treatment program. Thank you in advance for any advice that may be offered.
  2. #2
    pattytx is offline Senior Member
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    It may be a disease, but it's only a disease protected by the ADA if you are NOT drinking and are in rehab. The law does not protect current users, whether you're on the clock or not.

    You did not have to "agree" to the terms in the earlier letter; it was not up for negotiation. You were notified what could happen if the situation recurred, YOU chose to drink, and you were fired because you were convicted of a DUI charge. Thank God you didn't kill somebody.
    ---------------------------------------------------------------------------------------------------------------------------------------------------------
    You have not won the law suit lottery; in fact, you haven't even won the law suit scratch-off.
  3. #3
    mjk75 is offline Junior Member
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    Agreed. Not justifying my actions at all - completely understand the seriousness of them and what could have very easily happened... This situation was life changing for me and it is only in that that I am grateful it did occur and thank God I did not hurt anyone. I realize these are all consequences of my actions and I am not saying they are not deserved. I'm only trying to find a way to secure unemployment so it can assist in paying my bills. I am working part time and getting as many hours as possible in that position but finding a comparable salary to what I had, even with my education, is difficult. What does the ADA protect? Do I have an argument at all? Thank you for your response.
  4. #4
    Stevef is offline Senior Member
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    You really don't have anything to lose by appealing the denial of unemployment benefits.
  5. #5
    FlyingRon is offline Senior Member
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    If it qualifies for ADA, can I get handicapped plates? It will make it far easier to stagger out to my car when leaving the bar.
  6. #6
    cbg
    cbg is offline Senior Member
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    No, you do not have any argument at all. The ADA only protects you from discrimination on the basis of the fact that you have a history of alcoholism or that you underwent rehab; it does not under any stretch of the imagination prohibit your employer from firing you on the basis of your actions while under the influence, on or off the clock. Nor does the fact that MD considers alcoholism a disease (which, btw, I agree with) mean that you are automatically entitled to UI. You are still subject to the same rules and regulations for eligibility as anyone else.

    You can and should, however, appeal, if it is not too late to do so. I operate on this theory: If you do appeal, you may prevail and you may not. If you don't appeal, you definitely won't. It can't hurt, it doesn't cost anything, and there is no penalty for being wrong.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  7. #7
    BOR
    BOR is offline Senior Member
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    Quote Originally Posted by mjk75 View Post
    What is the name of your state (only U.S. law)? I was under the influence of alcohol (again, off hours) and have been subsequently diagnosed with alcoholism - which in the state of Maryland is considered a disease.

    Maryland is a 'fire at will' state, meaning they do not have to have a reason to terminate an employee, but since this was an alcohol related infraction, I am wondering if I have any leeway...
    IF you are saying it is illegal to terminate you for being an alcoholic, that is a matter for a lawyer to look over. Here is Ohio, as a related matter of law, it is illegal to fire someone for a "Handicap", (emphasis added) and the OSC has ruled a handicap includes alcoholism.

    HOWEVER, a good driving record is a bona fide part of employment, ergo, such statutory exception, if applicable, facially, would not apply post termination, IMO.

    You can of course appeal the Unemployment decision.
    Last edited by BOR; 10-26-2010 at 02:16 PM.
  8. #8
    csi7 is offline Senior Member
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    File the appeal decision.
    Keep claiming your weeks until your appeal hearing.
    Keep all your information in a file.
  9. #9
    davidmcbeth3 is offline Senior Member
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    Have no idea why you notified your employer??? In respect to an off-duty dui that did not result in loss of your driving license & ability to work... then I dont think that this should be considered "misconduct" under UI claims. Go to goggle scholar & check it out -- you will need to cite case law in your (other other) states that support your claim.
  10. #10
    cbg
    cbg is offline Senior Member
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    Just to split a hair, but an important hair:

    The OP was not fired because of a "handicap", "disability" or whatever you want to call it. The OP was not even fired because he is an alcoholic.

    The OP was fired because of something he did while he was under the influence. Different story altogether.

    Being fired BECAUSE OF being an alcoholic is, as far as that goes, protected under Federal law as well as the laws of most (not all) states. Being fired because of what you do while you are under the influence of alcohol is not protected in any state.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  11. #11
    commentator is offline Senior Member
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    [then I dont think that this should be considered "misconduct" under UI claims. Go to goggle scholar & check it out -- you will need to cite case law in your (other other) states that support your claim.[/QUOTE]

    OP, please please do not ever quote law to the unemployment appeals tribunal, especially not other states' laws. Okay? Your state unemployment workers have great familiarity with the unemployment laws, do not need you to look it up and misquote it to them. What they need from you is familiarity with the exact circumstances of your situation. They can and will apply the law.

    Now that you have received your unemployment decision denying benefits, immediately appeal this decision. You do not have to make any arguments or give any additional information in this request to appeal, you do not have to say anything except "I wish to appeal this decision" and they will give you the opportunity to request a hearing either by telephone or in person.

    As csi says, be sure to continue to make weekly certifications for unemployment benefits, even though you are not receiving checks. If you prevail in your appeal, you can be back paid for these weeks only if you have certified for them.

    Now, what does it say exactly in the company handbook regarding driving, that a good driving record is required for hire? Does it say anything about a certain number of points against your license being considered ground for termination? Do you have a copy of the termination documents you were given when you were let go? Do you have a copy of the employee handbook? If not, try to stretch your memory. Had there been prior incidents of people being terminated for this reason that you were familiar with?

    What I'd advise you to do first of all, while waiting for your hearing to be held is to sit down and make a timeline of all the pertinent facts. When you got your first DUI, when you were written up by your company, what you were told at that time, how long ago that was. Try to keep this related to the facts related to your employer, dates you told them things, dates, they took actions. If you're not exactly sure when what was said, try to get close. Make good guesses. Use the calendar.

    Then you got this DUI. You notified the company of the DUI. Why did you not get terminated then? They waited until the case was actually heard in September, and when you told them what? I'm a little shaky there. You told them you had gone to court and that you HAD been convicted this time? Okay, at this time they terminated you. I totally do not understand the thing about you would have gotten points taken off your license if you had known they would fire you if you had more than 12 points, but this might be relevant. Who told you what about it?

    As I suggested, be able to produce the letter they gave you at termination. Does their letter say "gross misconduct"? Does it cite the handbook? Does it mention the 12 points?

    Can you say that your behavior does not rise to the level of misconduct because it is not something that you knew to be something that would get you fired if you did it, even one time?This is the general definition of work related misconduct.

    We're not talking about being an alcoholic. They didn't walk in one day and say you're fired because you're an alcoholic. They fired you for getting a DUI conviction. Okay, we can pretty much agree that drinking and driving is misconduct. But was it work related misconduct? That's about the only thing I can pick out of this where you might prevail in an appeal, to argue that this behavior does not rise to the level of work related misconduct. It did not occur in a company vehicle did it?

    They can argue that you had a warning once before. They can argue that keeping a good driving record is considered a ---what, do you have to drive as a part of your job? Drive company vehicles? Where exactly do they say, or why do they maintain that one must not have a DUI conviction or have less than 12 points on their license as a requirement to work there?

    If you had robbed or murdered someone off the job, yet were still able and available for work, that might be gross civil misconduct, and they might certainly legally fire you because they thought you were creating a poor company image, or just because they were horrified by what you had done, yet it would be hard to say that it was gross job related misconduct.

    And you did not know you were going to get a DUI, you did not know you were going to take an action that would lead to your termination from work.

    If you had been a truck driver, and you were convicted of DUI and lost your license as a result, this might be considered a very legitimate misconduct reason to terminate you, as your job was contingent upon your ability to drive legally. Each time you drank, especially any time you drank and got behind the wheel, not only could you have killed yourself and other innocent people, you could also have lost your legitimate livelihood by losing your ability to drive. You don't win in unemployment with this set of circumstances

    But depending on the specifics of your job description, you may have an argument that your DUI was not gross work related misconduct and was not a good job related reason to terminate you.

    I'd stay dead away from the "illness" business. They don't care how pitiful you are or how good you're doing right now, either. They don't care if the state, the nation or God Himself has said alcoholism is a disease. That doesn't excuse you from wrongdoing while under the influence of alcohol, and your wrongdoing wasn't the drinking, it was the driving.

    But is this enough grounds to terminate you from your long term job for gross misconduct? Maybe a shadow of doubt here that you can present. As someone else here has said, you have nothing to lose by appealing, and if you do not make a timely appeal, you haven't a chance.
    Last edited by commentator; 10-26-2010 at 03:31 PM.
  12. #12
    mjk75 is offline Junior Member
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    Thank you for all that have replied.

    Commentator - I especially appreciate your well thought-out l response. I certainly plan on appealing. I received the letter today and have 15 days to file, stated on the letter as 11/5/2010. I will continue to file bi-weekly claims.

    [/QUOTE]
    Now, what does it say exactly in the company handbook regarding driving, that a good driving record is required for hire? Does it say anything about a certain number of points against your license being considered ground for termination? Do you have a copy of the termination documents you were given when you were let go? Do you have a copy of the employee handbook? If not, try to stretch your memory. Had there been prior incidents of people being terminated for this reason that you were familiar with? [/QUOTE]


    --I do have a copy of the Personnel Polices and Procedures Manual and have gone through it with a fine tooth comb, originally trying to build a case for wrongful termination but decided it would be tricky without an attorney (which, BTW, after receiving my denial letter today did call a recommended lawyer who focuses on employment issues; I will be meeting with him later this week). But anyway, the manual only states a good driving record is needed for hire. No mention of it after that. Nothing is stated regarding point accumulation or that it may be a reason for termination. Being there over eight years, I have never once heard of someone being fired for point accumulation on their driver license. I refused to sign the termination letter because I did not agree with statements within it regarding the points made me unable to complete my job responsibilities. I asked for a copy of it but because I refused to sign it, I was denied a copy. I then pointed out that it was my understanding that I was entitled to any documents within my personnel file. To which she responded, "Well it isn't anywhere at this moment." Ok.

    [/QUOTE]
    Then you got this DUI. You notified the company of the DUI. Why did you not get terminated then? They waited until the case was actually heard in September, and when you told them what? I'm a little shaky there. You told them you had gone to court and that you HAD been convicted this time? Okay, at this time they terminated you. I totally do not understand the thing about you would have gotten points taken off your license if you had known they would fire you if you had more than 12 points, but this might be relevant. Who told you what about it?[/QUOTE]


    -- I asked her (the HR Director) why they had waited nearly four months to terminate me. She said they were waiting until all the court proceeding were through. Fair enough, but even after they received the updated copy of my driving record that they requested and I promptly sent it was nearly two weeks until they met with me. I was under the understanding the meeting was to discuss the situation further and most likely get firm warning (I did not consider the first to be a firm warning, just a letter when compared to how disciplinary actions are typically handled). I was completely blindsided by the termination. The manual states I am to notify administration of a conviction. This being my second DUI, I knew it would result in a conviction and that is why I notified them immediately. The first time, I notified them because I was scared and trying to be as honest as possible... thinking that would help me. It actually has come back to bite me in the butt because if they didn't know about that one, which they had no reason to, this one wouldn't have been as much as an issue. She stated they, "would have been willing to work with me". Apparently she had just opened my file to see the letter that was previously sent then, all of the sudden the points mattered... [In Maryland, when one goes to court on a traffic violation the judge will often times decrease the number of points - a reason for going to court in the first place rather than just paying the fine. This was my train of thought about asking for a decrease on the points assessed when I went to court but I do not know if they would consider that for a DUI offense. – nor was I given any indication from my agency that the points would be an issue]

    [/QUOTE]
    As I suggested, be able to produce the letter they gave you at termination. Does their letter say "gross misconduct"? Does it cite the handbook? Does it mention the 12 points?[/QUOTE]

    -- I do remember that the letter did not say "gross misconduct". Since being denied a copy, I read it several times trying to commit to memory.

    [/QUOTE]
    Can you say that your behavior does not rise to the level of misconduct because it is not something that you knew to be something that would get you fired if you did it, even one time?This is the general definition of work related misconduct. [/QUOTE]

    --Yes. If I had gone to jail, missed work for reasons relating to the DUI, then I thought they may have a justified (in my opinion) reason. I missed no work and at all times was able to complete my job duties.

    [/QUOTE]
    It did not occur in a company vehicle did it?[/QUOTE]

    -- No. My own vehicle.

    [/QUOTE]
    Where exactly do they say, or why do they maintain that one must not have a DUI conviction or have less than 12 points on their license as a requirement to work there? [/QUOTE]

    -- No where in the manual does it state any of the above. A valid driver's license is required for employment because we have to drive to other agencies and to the homes of recipients who receive Medicaid waiver supports in order to provide quality assurance and monitoring of those supports, but it is always in our own vehicles insured ourselves, not the agency. At no time was my license suspended or revoked.

    [/QUOTE]
    I'd stay dead away from the "illness" business. They don't care how pitiful you are or how good you're doing right now, either. They don't care if the state, the nation or God Himself has said alcoholism is a disease. That doesn't excuse you from wrongdoing while under the influence of alcohol, and your wrongdoing wasn't the drinking, it was the driving.[/QUOTE]

    -- I agree with this point. I was throwing it out there for the purposes of this forum and to explore all options. I am not well versed enough in the law to pursue this thought.

    Thank you again to all who have responded, I have gained valuable insight on pursing this matter.
  13. #13
    aldaron is offline Member
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    Its been my experience most ins cos wont insure employees with recent DUIs while driving. I believe the co has no choice in the matter.
  14. #14
    commentator is offline Senior Member
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    Really think there is a fair possibility of appeal rights here. Gross misconduct will probably not fly for the appeals judge who is experienced in unemployment law.

    It is very significant that the termination did not occur immediately after you had notified them. But do I not understand that you did get a conviction the first time? You said this one was second offense, so apparently you were convicted for first offense DUI the first time? If so, then you weren't being Johnny eagle scout by notifying them the first time, you were simply following the company's rule. Do you have a copy of the first letter, the one they gave you back when you got that first one? If so, does it state that it is a warning and what will happen if this happens again? If so, it's a letter of warning.

    Even so, gross misconduct is probably not going to hold up here, in your unemployment appeal that is. Even if you have to be insurable to work there (I'm curious whether this is the case, if you were told so in the warning letter, seems not to say this in the handbook) Gross misconduct would've been more like having a DUI or alcohol related accident in a company vehicle while on company time.
  15. #15
    aldaron is offline Member
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    OP stated a good driving record is necessary for employment, this can only mean he's driving on co time. The cos insurance carrier has a say in who they insure and do not. All places i've worked when driving is involved a DUI conviction is automatic termination. DUI on co time or personal doesn't matter.

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