Should I appeal?

[coop00]

What is the name of your state (only U.S. law)? Illinois.
I was recently terminated from a bank where I was working as a PC Tech. I filed for unemployment benefits, and have received a notification that I am ineligible due to the circumstances of my termination. The cause of termination on the notice I received states that I was terminated for "innapropriate use of the company email systems". I am responsible for my own actions, and cannot deny that it is true. However, I feel that my termination was unfair due to the fact that I have never been written up for that or any other behavior offense, and that there are at least three other employees who were given written warnings for the same offense at the same time of my termination. Because I know that other employees were engaged in similar actions, I feel as though I was singled out because of a dispute with the senior network administrator. There are co-workers who were aware of this, including my supervisor, and the president of our marketing dept. I'm sure that the senior network administrator had access to emails from my mailbox that were unfavorable to him.
How can the employer fire me, but just write up the others? If I had unlimited access to all the email records of the associates who received the written warnings, I'm sure our cases would be similar. If I had received a written warning, you can be sure I would have not repeated those actions again, but I was never given the opportunity.
My last performance review was favorable, and included a higher than normal raise. I was never issued any performance or behavior warnings. I actually had a private meeting with my supervisor just four days before my termination, and he said nothing about my email usage or any other performance problems.
I don't think that it was fair to fire me for the same offense as the other employees were issued written warnings for. Should I appeal my unemployment benefits eligibility, or let it go?

 

[commentator]

You should always appeal, some states are more claimant friendly than others, and this maybe interpreted several ways.

First of all, be sure you continue to certify for weeks of benefits, although you are not receiving checks. If you were to be approved in hearing, you would be back paid for each of the weeks that had passed if you had certified for the weeks.

When you do your appeal, first and foremost, what they will want to know is "Was there a specific company policy that said that misuse of the company email or internet system was considered misconduct, was against the rules, was a fireable offense, and were you made aware of this company policy?" In other words, if you had to sign off on such a policy when you came to work there, and particularly if you were warned regularly that such misuse was a serious offense.

That said, they would look at the level of misuse, in other words, if you had been using your system to bring up really gross porn, or from their records it was obvious that you had done this many times a day, that might be a factor.
Otherwise, if your level of misconduct was not far above the level of misconduct presented by the other people, you might have a pretty good case.

Get me straight, it was perfectly legal for them to write them up but fire you because they didn't like what you were saying about them in the emails ( a truly unwise thing for you to have done in any case!) But for unemployment purposes, it may make a fairly decent argument that the company policy was not followed, and that you were subjected to summary firing without being given any opportunity to change your behavior, while others were not treated the same. It will be about whether your misuse of the computer system rises to the level of major misconduct. If the company says it did, then why did they not fire the other employees for the same level of misconduct?

When you present your case, either by telephone or in person, you will need to be sure to include the fact that you had no prior warnings or write ups for this issue or any other. State that you were aware of the company policies, but you saw other employees doing this without discipline, and did not violate the policy beyond what others were doing. State that you would not have done this if you had believed it would result in the loss of your job, and that if you had been given a warning like the other employees, you would have corrected your behavior at once. Avoid the "fairness" issue, stress that they were not administering their policy on computer misuse evenhandedly.

It is usually not easy to win a case where computer misuse is involved, because it is very easy for the company to monitor this, and most companies have specific language in their handbooks concerning it, but the fact that there were others involved who received different disciplinary measures may work in your favor in the appeal.

 

[coop00]

When you do your appeal, first and foremost, what they will want to know is "Was there a specific company policy that said that misuse of the company email or internet system was considered misconduct, was against the rules, was a fireable offense, and were you made aware of this company policy?" In other words, if you had to sign off on such a policy when you came to work there, and particularly if you were warned regularly that such misuse was a serious offense.

Thanks so much for your response.

Yes, there was a policy in the handbook, but no there no regular warnings issued. There were no bulletins, emails, or newsletters for any type of general warning.
I would suppose that my former employer could argue that my inappropriate emails were more inappropriate that anthe employees inappropriate emails, but how could anyone ever prove either case? I cretainly don't have access to the email system anymore. I had saved some potentially incriminating items, just in case something like this ever happened. But my former employer could just deny that they exist. Are they obligated to disclose to the appeal referee that it is true that other employees were issued written warnings for the same offense as I was terminated for?

 

[commentator]

Well, not exactly. The thing is, when you and the employer both make your statements, the ajudicator is supposed to make the assumption that either or both of you could be lying. In other words, it comes down to who is "most believable" in the situation. If you have concrete proof, of course that would help to make you more believable.

If I were you, I would put into my statement that Mary Jones, Sally Smith and Jane Doe, who were my co-workers were also called in at the same time, and were all given written warnings. I, on the other hand, was discharged, though my violation of the policy had been on exactly the same level and to the same degree as theirs. You do not really have to prove this is true, you are just stating it. I doubt if any of those still employed would want to appear at your hearing to testify to it. But at the same time, it is the kind of thing that would be easily verifiable.
I don't really imagine that the employer, under oath, would try to say they did not issue these other reprimands.

If they could print off vast records that showed you had spent many hours on the internet when you should have been working, or if they could produce a bunch of print outs of things that you had been looking at that were disgusting porn or something, this would make a much better case for them, regardless of whether your co-workers were doing the same or not. But I doubt if they can do this.

I don't think I would mention having copies of my emails or anything. I'd just emphasize that your mis-use of the internet was about commensurate with the general practice misuse of the internet by your co-workers.

You might mention that you had had a personality clash with one of the supervisors, or had raised some questions about other issues and you believe this had weight in your being terminated, but I don't think I would bring up that I'd said she was a fat stupid so and so in my email and she read it and that's why she fired me. You want to present yourself in the best light possible here.

 

[coop00]

Thanks again for your excellent responses.

I will get to work on your suggestions, and hope for the best.