Definition of Willful Disregard? & Pay out of Benefits

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

Hello,

On 11/3/08 I was dismissed from my position of Equipment Coordinator (basically a Service Manager)with my company with no reasoning given to me for my discharge at that time. I was told by HR that "Wisconsin is an At-will state, and we do not have to give you a reason".

On 11/14/08 I received a cover letter along with what my company is calling my “Final Check”. In this cover letter they stated that they had terminated my employment due to what they are calling a “Willful Disregard” for their Interest’s in a installation that had yet to be completed at the time of my dismissal. They also stated that they changed their minds and no longer intended to pay out my earned vacation and personal time of 60 hours ($1,110.58 of value). Can they legally refuse to pay these under these circumstances?

As stated in their cover letter, they claim that after my discharge they had performed an “ investigation” into a situation related to a job we were to perform the following week (the week of 11/10). The allegations were brought to them from an employee that I was in charge of overseeing on 11/3. At NO TIME was I confronted about any of these allegations prior to my release on the same day. Had they chosen to confront me, they would have found out the truth about the situation that they were mislead to believe was a warranty situation, when indeed it was not. Based on comments in their original statement to the DWD, they are essentially claiming that I had an intent to steal some of the equipment that again they claim was being removed under "warranty" which was not the case. I have documentation from the vendor involved that the job WAS NOT warranty, and that the end user was to retain ownership of the equipment after the installation was complete. My only intent was to try to purchase the equipment from its rightful owner (the end user) once the job was completed, and it was determined whether or not the equipment was even usable. Based on the fact that I was not even employed with my company at the time the work occurred, I believe that they can only argue that I had an "intent" to steal the items. Obviously I never actually stole anything.

With this, they have chosen to fight me for UI. My right to benefits was found to be in my favor after my original telephone statement was taken and the facts verified by the DWD on 11/25. However, my employer is now appealing that decision and a UI hearing is set for next Tuesday the 16th.

After doing some initial research, Im under the impression that in order for the DWD to disallow benefits in this case, my company would have to prove a number of things:

First, they would have to prove Willful disregard which I do not think they can.

Second, they would have to have a policy in their employee handbook that covers willful disregard specifically.

Third, they would have to produce a signed copy of that handbook that showed I had agreed to its content.

Fourth, if they do not have a policy on file, the employer must give the employee at least one warning that future violation of that policy my result in a discharge. Again....I was not confronted or given a warning prior to my discharge.
Although I do not have a handbook to reference, I doubt they can provide any of that.
Am I on the right track with that thinking?

Being that at the actual time of termination, their decision was based on hearsay, do they even have the right to argue willful disregard after the fact? Can I use this against them in this hearing? Any other suggestions as to how to handle myself in this hearing, and possibly legal advice on how to portray the facts?

Thank You so Much,

Ben

They also stated that they changed their minds and no longer intended to pay out my earned vacation and personal time of 60 hours ($1,110.58 of value). Can they legally refuse to pay these under these circumstances? Wisconsin does not require the payout of vacation upon separation. Wisconsin does require that an employer comply with their own policy/standard practices. So if your employer's policy or practice is not to pay out vacation if someone is terminated for misconduct, then they do not need to pay you any vacation time.

First, they would have to prove Willful disregard which I do not think they can. Correct. In UC statute terms, your employer has to prove that you engaged in an intentional disregard of their best interests.

Second, they would have to have a policy in their employee handbook that covers willful disregard specifically. Helpful for your employer but not necessary for them to prevail at the UC hearing.

Third, they would have to produce a signed copy of that handbook that showed I had agreed to its content. Again, helpful for your employer but not necessary.

Fourth, if they do not have a policy on file, the employer must give the employee at least one warning that future violation of that policy my result in a discharge. Again....I was not confronted or given a warning prior to my discharge. Not true. No laws require that an employer give a written warning or advance notice of the possibility of termination. That wouldn't even make sense. If you'd assaulted your supervisor (for example), they're not required to tell you that if you do that again, you'll be terminated.

Although I do not have a handbook to reference, I doubt they can provide any of that.
Am I on the right track with that thinking? Only partially. While a handbook with written rules are helpful to employers for UC purposes, they're not necessary for the employer to prevail. Using the example above, no handbook is going to state "if you punch your supervisor in the nose, you'll be fired" but if you do so, you will be fired and the State will deny UC benefits.

At the hearing, the burden of proof will be on your employer to show that you engaged in wilfull misconduct and that there is reasonable evidence to support that the reason they fired you is accurate.

Being that at the time of discharge I was told I would be paid the benefits, and that after their "investigation" they suddenly changed their mind, does that give me any footing to stand on to challenge them? Also, I beleive that in the past they normally pay out benefits when someone is discharged.
When I contacted the Equal Right Division of the WI DWD, they led me to believe that the employer has to pay benefits that are earned unless they have a policy stating that they do not have to pay them upon termination.
They referred me to their Labor Standards Complaint form # LS-119-E, which I intend to file pending the outcome of my hearing.

Again...any advice or help is greatly appreciated

Being that at the time of discharge I was told I would be paid the benefits, and that after their "investigation" they suddenly changed their mind, does that give me any footing to stand on to challenge them? The only footing you have to challenge them would be based on your employer's policy/past practices. The question is what have they done regarding paying vacation pay to other employees who have been terminated for misconduct?

Last question on the benefits:

Would they not have to prove misconduct in order to claim misconduct as a reason for discharge?

Also, As I had stated in the original post the check stub on my last check says "Final Check". I have yet to cash this, as I have heard of instances where once you cash a check with a memo line, you are bound to the information stated....in this case "Final Check". Should I wait to cash this check until i can resolve both the UI issue and the benefits issue?

Would you recommend filing the LS-119-E, or should I try to resolve with the employer once the UI is settled....hopefully in my favor

Thanks Again,

Ben

I see no reason not to. Restrictive endorsements, which this is not, are rarely binding anyway. But final check just means it's for the last hours you worked. You can cash it without affecting your claim for UC or vacation pay.