I'm assuming you have won the initial appeal for unemployment benefits, and the facility is appealing the decision. Keep certifying for your weeks of benefits,even if you have stopped receiving them. When you get your hearing date, call the appeals tribunal number you have on the paperwork and ask them if you can submit notarized statements from patients' family members into evidence. It would be sort of tough to get this sort of witnesses to actually appear for you. And perhaps another employee of the facility who is still there would be putting their job in jeopardy if they appeared for you. As in an "at will" state, they could very well be fired for it. But if they lie, when you get a chance to speak, remind them they are under oath, and you tell the truth very strictly. In fact, when you have the opportunity to ask a question, you can ask, "You do understand that you are under oath, don't you? And you and I both know exactly what happened, don't we?"
However, if you won the initial approval, it may be that you have a pretty good chance to win the appeal. It very well may be that the facility's evidence that you had any wrongdoing was not substantial. Don't accept that attorney's opinion, as quite frankly, he doesn't sound as if he has had much experience with unemployment insurance hearings. "He said/she said" is the stuff our lives are made of!
If possible, ask for an in person hearing. However, since you are not the one appealing, they may ask for a telephone hearing, and that's what you have to go with.
It will be a conference call, everyone will be sworn in, and the whole process will be taped. Since they are appealing the initial decision, the company will speak first. They will present their side of the story, attempting to prove that they fired you for documented good cause which rose to the level of misconduct. Do not be surprised if they come up with some information that you have never heard about while they are giving this argument, such as write ups and verbal counselings that you do not remember having occurred.
What they would need to prove is that they have verified evidence that you mistreated and neglected a patient or patients to the extent that it was considered major misconduct, (such as slapping one in the head with a bedpan or failing to check on someone who was calling for your help.) If it was not this major, if it was just an ongoing series of little events where you may have say, told a patient to shut up, or called him a "dummy" or failed to get to a patient who was calling you or who needed attention for an unreasonable period of time...these should have been accompanied by a train of progressive discipline. In other words, a verbal warning, written warnings, suspension...In other words, what they will be trying to determine is if you (1) did something that would clearly be classified as major misconduct or (2) did several small things that tallied and compiled would rise to the level of misconduct, that you did so willfully and fully aware that your continuing violations of the rules could result in your termination. In other words, did you know your job was in danger, that if you behaved this particular way you would be terminated? This is what the referee will be listening for.
After they are completely finished, you will be given your turn to speak. Tell the story exactly as it happened in your perception. Repeat exactly what they said to you, show anything they gave you in writing. Mention any witnesses to the situation, even if they do not testify on your behalf. You want to get on record exactly who might have heard this incident. As I said, "he said/she said" is okay in these hearings.
Be sure if you did not know your job was in jeopardy, and that you did nothing wrong, that you get these things stated and in the record. You may want to write things down to read them into evidence when you are speaking.
If you did not receive any warnings, write ups, or reprimands, be sure and say this. If you were given good reviews up till this particular incident occurred, mention this. If you have a group of patient relatives who have offered to say good things about you, mention this even if you do not get to submit their statements into evidence. They'd be listening for a pattern of on going abuse and neglect. If no one mentions this but the facility, and you've got a successful history up to now, your chances of winning the appeal get better and better. Remember, in this case, your word is just as good as the employer's. They are not given more credence just because of being the employer.
Stick only to the reason you were terminated. If they then come up and say, "And then, by the way, she was late three times since she's been here, and she parked in the wrong parking spot once!" you just ignore these issues, as the referee hearing this case will do.
From what I'm hearing, I do not think you need to hire an attorney to represent you. Particularly not this particular attorney. All an attorney will do is get the facts of the case straight and present your side of the situation. You can do this for yourself if you take good notes, present your case firmly and positively, and keep your cool. Pretend you are your own attorney. You are.
The attorney you talked to was trying, it sounds like, to tell you that you can sue the facilityif you have an EEOC case against them for a reason such as being discharged for being over 40, or due to race, religion, you know,the basic EEOC issues. But this is unrelated to the unemployment insurance situation. It is a very good idea to fight this, as a CNA with an unchallenged firing for patient abuse is not a hot ticket for rehire anywhere. At least now, after winning this appeal, you can say that although you were terminated they did not have adequate grounds to prove you did something wrong.
If I were you, I'd also check with the state CNA licensure and certification board to make sure they couldn't put a black mark on my record or anything. Winning your unemployment appeal will help you establish that this would not be appropriate.
