Virginia unemployment compensation

[RichVA]

What is the name of your state (only U.S. law)? Virginia

I was terminated in April for what was termed poor performance. I applied for UC and the company contested. My former employer won the first-level hearing.

I appealed and I have been given a hearing. I have a few questions.

First, I did not receive copies of any of the performance documentation prior to the first hearing. The deputy conducting the hearing was rattling off events that had happened six and seven months earlier. I had been emailed some of them at the time that the happened but a computer crash had wiped those out. Do I have to be provided with copies of any documentation to be used against me prior to the hearing? Would this be something I could bring up in the appeal?

Second, the basis for my appeal is the timeline. Yes, I did have some lapses that are documented by the company. None of them would be considered serious (ie nothing that would be considered misconduct), just some dumb mistakes. On Feb. 15 I received a written warning, the first notice that my employment was in danger if the issues persisted. I got the message and straightened up. There is zero documentation of poor performance from that date on. I have some documentation that I had improved in the specific areas that were listed as issues. Nevertheless, after eight weeks, I was terminated. Does the fact that there is no documentation of poor performance after I received my first warning work in my favor?

Third, does it sound like hiring a lawyer for the appeal would be helpful? The back unemployment if I win totals about $6,000.

Finally, if I lose is there another level of appeal in Virginia?

A lot of questions, I know, I appreciate any help.

 

[commentator]

It sounds as though you need to call the appeals tribunal prior to the hearing date and request that you be provided with the material that was presented in evidence by the employer in the initial decision. No, you do not need to wait till the hearing and then bring up something that says you didn't receive the copies of the material that they turned in. This will have absolutely no bearing on the decision, and it is not required that you have them. However, if you ask, they should provide them to you.

Do you agree that these incidents actually took place, that you received warnings on these dates? Whether a computer crash took them off your system or not, we are assuming that they were, at some point, brought to your attention and that you were aware you had gotten them, right?

So you were terminated for performance issues. And there was warning and documentation, which you signed or were aware that you had received. In other words, you had been doing the job right, you begun to screw up, and they gave you a written warning about your performance issues. Correct? Then one day, they called you in and fired you. Without additional warnings. You do not know what you had done or not done related to performance that got you fired? Is it a measurable thing, like a sales quota, or sending out product that did not meet standards, or a general thing, like "bad attitude"?

If it's easy to prove you did the measurable bad performance (like shipping bad product or persistent absenteeism), that lowers your chances of winning the argument that you did improve you performance. If it's an intangible like "attitude" you have a better chance. If it is a group of things, like being absent, being tardy, forgetting to lock up properly, then it will be easier for you to say you did generally improve your performance and you were doing your best. (Provided you were not tardy, or absent,or didn't forget something big) Bring up any evidence of your improved performance that you have,whether spoken praise by a supervisor, written praise, appraisals, work sheets, evaluations, raises you received between February and April.

Frankly, your chances in the hearing are not sounding too good. What you are going to argue is that after receiving the February written warning, you did correct your behavior or performance, and had no further offenses, and yet were fired anyway. If they come in with some documentation that you did mess up on your performance after that written warning, then you probably will not win this. Your best defense is to say that you did improve your performance, that you did everything in your power to keep your job, and that you were performing to the best of your ability.

Hiring an attorney under these circumstances is an option, but I'm not sure it will help a whole lot. Because the events that have already happened will have more to do with whether you win this than the way your case is presented. There is no jury to sway. The adjudicator who hears the case must go strictly by the law. An attorney can get the materials for you, he could present it beautifully, but as I said, if they've got the proof on you, and a documented trail of warnings and progressive discipline, it's hard to beat it.

If you lose at this point, you will go to the next step, which is a board of review, which will not give you an in person hearing, but will look again at your case to determine if unemployment law was followed. Eventually it can go as high as to court, but if the law is leaning against you from the beginning, it's not really going to change much to follow it down to the bloody end.

 

[RichVA]

Thanks much for your reply.

On the termination notice that they sent to the state, there were two performance issues listed as the reason for my termination. One is pretty specific and after the date of the final warning I have documentation of improved performance there and there is no documentation of any further issues.

The second is more vague and subjective and I was to receive two shift evaluations per week to gauge my progress. It was an eight-week period and I received a total of one shift evaluation. I inquired a few times about receiving the evals and I was blown off. Eventually I got the impression that they had zero interest in my improvement and wanted to get rid of me to reduce payroll (something that was mentioned in passing a few times during the process).

So I have one issue that has documented improvement and another, more vague issue that has virtually no documentation one way or the other.

The bottom line is do they carry the burden of proof here?

And if I'm specifically warned that my job is in danger if I don't improve in areas A and B can they turn around and fire me for C or D? (and I'm speaking in terms of misconduct for unemployment compensation; I realize the "at will" nature of employment)

Thanks again.

 

[commentator]

Okay, good. This sounds much better for the home team. If you were supposed to be given feedback, which was then ignored and not provided, be sure you work this into your presentation at the hearing.

If you were warned for issues A and B, which you then made a good faith effort to get corrected, and then were terminated for C and D, for which there were no write ups or warnings, that's good for your case.

The burden of proof is on the terminating party. The party of course in this case is the employer. It is notoriously hard to document performance issues, especially if they did not stick to one specific performance issue and did not do the follow ups planned or provide you with feedback. If they at any time in the last few months mentioned getting rid of people to reduce payroll in your hearing, be sure this is presented in evidence.

Your stance is that you corrected every performance issue you could based on the information they had given you. You did not want to lose your job, and you did your job to the best of your abilities. Be sure to bring up with the dates (even if they are a general guess) the times when you asked for the evaluations that were not given related to the issues you had been warned about.

Be professional, polite, and sincere. Also be sure that you are filing for each week of benefits, though you are not receiving them, so that if you win this hearing you can be backpaid for these weeks. Good luck.