Employer contesting unemployment

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

I was recently terminated from my position as a waitress (full-time, no benefits) at a local independently owned restaurant.

Here is what happened:

The host we have is a hair stylist by day. We've been joking around for awhile that he should cut my hair some slow Monday.

Well, that happened to be a few Mondays ago.

Yeah, extremely poor judgment on my part, to do that at work (even if we WERE outside). Another employee told the boss when he called the restaurant. Bossman came to the restaurant and promptly sent the host home, and told me to finish my shift and his wife (co-owner) would be calling me to let me know their decision.

I finished my shift. The next day, his wife called and terminated me.

My family seems to think that I can get unemployment based on the following facts:
- no customers in the restaurant
- none came in
- we were outside (though still on restaurant property)
- no supervisor/boss present at the time (I was seniormost person there at the time, besides a chef who speaks very little English)
- I clocked out
- other employees were present to handle a customer if one were to walk in
- we would have immediately stopped what we were doing had one walked in
- other employees have not been disciplined for texting, facebooking, reading, studying, etc. while ON the clock during non-busy times. They have been verbally reprimanded (don't do that!) but there has been no disciplinary action taken, warnings issued, etc.


I understand what I did was completely stupid, and I am not fighting my termination. I can see where my boss was coming from in deciding to terminate me.

Based on responses from another legal question forum and the urging of my family, I filed for unemployment and received my financial determination and began filing my claims.

Last week, I went in to the restaurant to pick up my final check and return their property, where the Bossman verbally accosted me, telling me that he would spend thousands in court fees to make sure I didn't get a penny and that I didn't deserve unemployment and I should stop milking the system or try getting a job and keeping it this time, and how dare I, etc. etc. etc. Apparently, he had just received the notification that I had applied for UE.

I kept my mouth shut except to tell him that I was no longer his employee and I didn't need to stand for him speaking to me that way, told them I just wanted my pay and I would get out. He then made me leave through the back door of the restaurant, saying that didn't want me to "make a scene" in the restaurant (I was crying by that point).

I have been hired at a new (awesome) job and will be starting on June 28, so this won't be an issue much longer.

I just checked the status of my unemployment claim and it says there is an issue with it; I assume it is my former employer contesting my claim.

What happens now?

This is like calling an outfield fly.

Commentator, YOURS!

pattytx said:

This is like calling an outfield fly.

Commentator, YOURS!

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Aw, c'mon pattytx! What are your thoughts?

- I clocked out

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They cannot claim theft with you "stealing time" from them.

Did the other person clock out? Was the other person fired?

Hmmm, I have certainly heard this one before. Bored employees, the devil's workshop! But since it seems that there was not really a policy against doing this sort of thing at work during slow times, you had never been warned against this, or seen anyone else get into trouble for doing personal things during slow times, this falls somewhere between "not a real misconduct offense" and "something you should have known was wrong, even to do it once."

The downside of this argument for you is that (1) you were the one who was unofficially in charge--you'll need to stress that this was not an official designation, just something that had been put on you and

(2) you clocked yourself out and stepped outside the restaurant, having full intent to be off the clock for a few minutes while this happened. Had their ever been any warnings or disciplinary actions about an employee clocking themself off and then back on the clock? What was the company's policy on that particular thing?

(3) what were you going to do if --halfway through your haircut, customers had come into the restaurant? You say there were enough staff up front to deal with customers, so you two were like on break or something? Is there an official sign out process for going on breaks? If so had these been followed?

The first thing that happens is that you will receive fairly soon we hope, a letter telling you either benefits have been approved or denied. This is called an initial decision. Either you or your former employer may appeal this decision within 15 days. If you are approved you will be paid for the weeks you have filed for, and will continue to file until the end of the first week before you start your next great new job. Even though you are going back to works, there is this time that you were off, these weeks that you would be paid for if you win this unemployment decision. If you win, of course this employer will hire an attorney and request an appeal, as he has the right to do and is so threatening.

At this point, even if you are already at work on your new job, you will need to do the hearing, maybe by telephone, but you will need to be there, so that you don't have to pay back any unemployment you have already drawn. Whichever of you did not prevail in the first decision will present their material first, then the other party will speak, and the hearing officer will record everything, clarify, ask questions, and then later make a second decision. This is usually as high as the appeal goes.

In order to keep you from drawing, they would need to determine that your behavior on that particular day fell into the category of gross misconduct, in other words something so bad you should have known it was wrong to do it even that one time. Example--if you and the hairdresser had been out back having wild sex. Or if you and he were angry at each other and stepped out back to have a fist fight. Or exchange drugs in a drug buy. Or loading up the restaurant's equipment in your car to steal.

Your argument is that it was poor judgment on your part, was an unwise thing to do, you now realize, but you did not realize it would take as long as it did, you felt that the work in the restaurant was fully covered while you were out back, you did not think you were doing anything that harmed the business or harmed anyone, and you had no idea your job would be endangered if you were found doing this.

So it's kind of a toss up. If he hires an attorney, they will posture and try to intimidate you, but I bet they probably didn't have any real hard and fast policy about what was proper for employees to do during slow times at the restaurant, and you were not given any warnings, or had not seen others warned for what they did during slow times. I certainly suspect they did not have a policy that you could not step out back and let someone trim your hair, but they will argue this falls into gross misconduct. Could go either way.

The most damning thing I think you did was clocking out before you went out there. Some restaurants really object to people clocking in and out in this manner, do have policies against it, but since you did it, knowing it would be seen, it appears you thought it would be all right.

Pay no attention to the former employer. You have kicked him in his most sensitive area, his pocketbook. He has the right to fire employees, but in order to do so without their receiving benefits which raise his employer taxes, he must show he had a valid misconduct reason to terminate you. This involves -- you know your job was in jeopardy and you willfully chose to do something that was wrong, might have endangered someone's life and health and certainly was detrimental to his business." Does gettin a quick
hair "trim" qualify? That's what they'll be trying to determine.

Keep making your weekly certifications till the new job actually starts. You are entitled to each week you're off if approved. If you lose the initial decision and want to appeal, do so promptly. You will not have to say anything in the appeal papers except "I wish to appeal this decision." Request an in person hearing if possible, even if you have to get off work at your new job to do so.It's worth it.

Oh, and by the way, stop calling what the guy did a "haircut." It was he was going to "trim your hair" He was going to step outside with you and "trim your hair." A haircut creates a vision of a very long drawn out procedure with you wearing a plastic cape, him hovering over you like "M'sieur Boodreau" . A trim is a little snip or two with the scissors while you stand there. Semantics

thelizzy said:

Aw, c'mon pattytx! What are your thoughts?

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And now you see why I leave some of these to Commentator.

Because I would have said, you clocked out without authorization, which any reasonable person should know is not proper, and there should not have to be a policy saying so.

TinkerBelleLuvr said:

They cannot claim theft with you "stealing time" from them.

Did the other person clock out? Was the other person fired?

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No, the other person did not clock out. I don't think he was fired in the traditional sense; last I heard, he was taken off the schedule and then the Bosslady did not contact him, so he told me he was going in to pick up his final check and "officially resign".

commentator said:

The downside of this argument for you is that (1) you were the one who was unofficially in charge--you'll need to stress that this was not an official designation, just something that had been put on you and

(2) you clocked yourself out and stepped outside the restaurant, having full intent to be off the clock for a few minutes while this happened. Had their ever been any warnings or disciplinary actions about an employee clocking themself off and then back on the clock? What was the company's policy on that particular thing?

(3) what were you going to do if --halfway through your haircut, customers had come into the restaurant? You say there were enough staff up front to deal with customers, so you two were like on break or something? Is there an official sign out process for going on breaks? If so had these been followed?

The first thing that happens is that you will receive fairly soon we hope, a letter telling you either benefits have been approved or denied. This is called an initial decision. Either you or your former employer may appeal this decision within 15 days. If you are approved you will be paid for the weeks you have filed for, and will continue to file until the end of the first week before you start your next great new job. Even though you are going back to works, there is this time that you were off, these weeks that you would be paid for if you win this unemployment decision. If you win, of course this employer will hire an attorney and request an appeal, as he has the right to do and is so threatening.

In order to keep you from drawing, they would need to determine that your behavior on that particular day fell into the category of gross misconduct, in other words something so bad you should have known it was wrong to do it even that one time. Example--if you and the hairdresser had been out back having wild sex. Or if you and he were angry at each other and stepped out back to have a fist fight. Or exchange drugs in a drug buy. Or loading up the restaurant's equipment in your car to steal.

Your argument is that it was poor judgment on your part, was an unwise thing to do, you now realize, but you did not realize it would take as long as it did, you felt that the work in the restaurant was fully covered while you were out back, you did not think you were doing anything that harmed the business or harmed anyone, and you had no idea your job would be endangered if you were found doing this.

So it's kind of a toss up. If he hires an attorney, they will posture and try to intimidate you, but I bet they probably didn't have any real hard and fast policy about what was proper for employees to do during slow times at the restaurant, and you were not given any warnings, or had not seen others warned for what they did during slow times. I certainly suspect they did not have a policy that you could not step out back and let someone trim your hair, but they will argue this falls into gross misconduct. Could go either way.

The most damning thing I think you did was clocking out before you went out there. Some restaurants really object to people clocking in and out in this manner, do have policies against it, but since you did it, knowing it would be seen, it appears you thought it would be all right.

Pay no attention to the former employer. You have kicked him in his most sensitive area, his pocketbook. He has the right to fire employees, but in order to do so without their receiving benefits which raise his employer taxes, he must show he had a valid misconduct reason to terminate you. This involves -- you know your job was in jeopardy and you willfully chose to do something that was wrong, might have endangered someone's life and health and certainly was detrimental to his business." Does gettin a quick
hair "trim" qualify? That's what they'll be trying to determine.

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1) You are correct. My designation was most certainly "unofficial". The Bossman and Bosslady had no problem leaving me in charge when they wanted to leave and go shopping, but were quick to remind me of my "place" in other situations.

2) No, there were no previous instances of such a thing happening. There was no policy; people were often sent home if the restaurant was busy or told to go take breaks. When management was not around (which was about 75% of the time), the employees used their own judgment as to when someone could take a break or go home. It is an independent restaurant, therefore, no corporate policy in place.

3) There is no official sign out process for going on breaks besides knowing that someone is there to take care of people who may walk in. If customers had walked in, we would have stopped IMMEDIATELY.

My initial decision was approved. I stated the case on the unemployment website pretty much exactly as I have shared here. I know that my employer will read my statement etc. I was absolutely truthful. Keep in mind, however, that she was not there. There is a computer record of my clocking out; the Bossman is saying that that is irrelevant.

Re: detrimental to the business

Bossman is claiming that if the health department had seen what we were doing (even if we WERE outside) that they could have shut down his restaurant for two weeks. I don't know if this is true or not. I thought that since we were outside, away from the dining area, we were okay. Obviously that was not the case.

Okay, now you are approved. YOu'll be paid for the weeks you certified for. You'll start your new job, and stop certifying for unemployment benefits after the first week you have worked at it. REmember you're always certifying for the previous week after it passes, so don't fail to certify for that last week you did not work.

What the employer got was a notice very similar to what you got, saying that your action --probably something like "did not rise to the level of misconduct" and therefore your claim was approved. He will NOT have access to your claim or the website on which you filed and your information that you submitted to unemployment. So he does not know what you told them, what you said to explain what happened, as you do not know what he said. The decision was made by the ajudicator who saw both statements.

If he within the accepted time, files a request to appeal the decision, then comes a hearing either in person or by telephone conference call. As I said, be sure you attend this hearing, even if you are back to work, because you don't want to lose by default and have to pay back the unemployment you have drawn while you are off. At this hearing, he will present his case as to why he had good misconduct reason to fire you, and you'll present what you've said here, stressing the things you've stressed.

If three or four weeks go by and you do not hear anything about a hearing, you're pretty much home free, as he cannot then appeal the decision later.

Thank you so much for your help. I am pretty sure that they have appealed, as I checked the status of my claim online and it vaguely says that there is a problem, but continue filing my claims. I'm just waiting for a letter in the mail with steps on what happens next.

Thanks again.

No! DO NOT ever go by what is showing up on line with any unemployment system when you check your claim. They may not have released your claim to pay yet. What is on line has nothing to do with anything.

If you do not start getting checks within about a week, you need to call them and talk with a living human being who can check your claim, make ajustments if necessary. It is your responsibility to do that. If someone there forgot to release your claim after the decision in your favor, you don't just assume they've appealed and that's why you 're not getting checks. You call and hold the phone till you find out definitely.

If your employer appeals you will receive a written notice of the hearing. This is all you need to worry about. You cannot go on line and be able to tell if they have appealed. If you don't get a written notice of appeal before any hearing, and your address has been kept updated by you in the system, then it isn't a valid appeals hearing.