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  1. #1
    VykkDraygo is offline Junior Member
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    Question Suspended for 3 weeks then fired!

    I was recently suspended for yelling at my boss on the phone for not having a schedule posted for the next week (which started the next day). 2 days later I had a meeting with my owner in which he said they would discuss the issue. Three weeks after that I got a letter in the mail saying that I was fired for poor work performance (which is bs, I had 1 write up in a year)(while still on suspension). I feel the only reason I was suspended was so they could avoid paying me unemployment, but they realized I had a set of store keys they needed back, so they had to terminate me to retrieve them. I have filed a small claim in the amount of $648(the amount I would have gotten from unemplyment for 3 weeks pay). Do i have a case? If so can you please point me to some kind of reference... New York State
    Last edited by VykkDraygo; 06-24-2011 at 03:18 PM. Reason: added state
  2. #2
    cbg
    cbg is offline Senior Member
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    If you mean, did your employers do anything illegal for which you can sue them, no, they did not.

    If you mean, is your claim for $648 likely to be successful, no, I very much doubt it. There was nothing stopping you from filing for unemployment during your suspension. The law does not require that the employer fire you before you can collect - you could have filed during the unpaid suspension. If you did not do so because you thought the employer had to use the word, fired, that's not the employer's fault.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  3. #3
    ecmst12 is offline Senior Member
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    You might not get unemployment either. Yelling at your boss could easily be considered willful misconduct.
  4. #4
    swalsh411 is offline Senior Member
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    Quote Originally Posted by VykkDraygo View Post
    I feel the only reason I was suspended was so they could avoid paying me unemployment
    That makes no sense. Suspending without pay vs. terminating somebody is the same thing in terms of unemployment eligibility. You do not need to be "officially" terminated in order to qualify for unemployment. If your employer tells you not to show up to work, whether it be temporary or permanent, you should file for unemployment.

    Why did you not file when you first suspending? It's not your employer's fault you have a fundamental misunderstanding of how eligibility works. Why should they be responsible for reimbursing your ignorance?
  5. #5
    commentator is offline Senior Member
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    Yes, a very basic perusal of the state's unemployment site, or asking someone other than your employers would have told you that anyone can sign up for and set up a claim for unemployment at any time. The employer has no way to stop you from doing this.

    And a claim only pays from the date it is filed, even if you were out of work for several weeks before then. In other words, if you elected not to sign up for three weeks or so that you were not receiving any wages, it is not your employer's responsibility to make sure you filed for unemployment, it is yours.

    That they have terminated you for performance issues makes it fairly likely that you will be approved, because "performance issues" involves deliberate misconduct, which means you had knowledge of and the ability to do what would have been acceptable job performance, and you maliciously chose to do the wrong thing or not do enough even though you knew your job might be in jeopardy. So what you need to do in the unemployment process is to stress that you did your job to the best of your ability.

    As for suing the employer for the money you MIGHT have made if you had signed up on your unemployment insurance and had been approved, that is completely crazy and a waste of your time. The employer had the right to fire you or to put you on an indefinite suspension forever, nothing about that stopped you from filing for unemployment except your own lack of information. I am afraid any unemployment law that could be cited would do nothing but prove this is a silly idea. Concentrate on getting your unemployment insurance approved, you have no grounds to ask them for a backdate here either.
  6. #6
    VykkDraygo is offline Junior Member
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    Your all nuts!

    Wow. Well 1st I did file for unemployment and have received it. 2nd I did try to apply for unemployment while suspended and I was told (by unemployment) that I could not unless I was fired! 3rd I am a little apprehensive to take legal advise from any of you seeing as none of you seem to know squat!
  7. #7
    Antigone* is offline Senior Member
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    Quote Originally Posted by VykkDraygo View Post
    Wow. Well 1st I did file for unemployment and have received it. 2nd I did try to apply for unemployment while suspended and I was told (by unemployment) that I could not unless I was fired! 3rd I am a little apprehensive to take legal advise from any of you seeing as none of you seem to know squat!
    Don't let the door smack you on the behind as you leave.

    I'm not surprised you got fired with your attitude and demeanor.
  8. #8
    cbg
    cbg is offline Senior Member
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    Liar.

    There is no possible way you've been approved for UI this fast if you had not even applied for it last week. There is also no way the unemployment office told you that you could not collect unless you were fired, since that is not true.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  9. #9
    Antigone* is offline Senior Member
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    Quote Originally Posted by cbg View Post
    Liar.

    There is no possible way you've been approved for UI this fast if you had not even applied for it last week. There is also no way the unemployment office told you that you could not collect unless you were fired, since that is not true.

    Now, that is calling it as you see it
  10. #10
    mlane58 is offline Senior Member
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    Quote Originally Posted by VykkDraygo View Post
    Wow. Well 1st I did file for unemployment and have received it. 2nd I did try to apply for unemployment while suspended and I was told (by unemployment) that I could not unless I was fired! 3rd I am a little apprehensive to take legal advise from any of you seeing as none of you seem to know squat!
    Another satisfied customer that unfortunetly didn't hear what they wanted. You got the correct information as the responders here have more than 50 years of HR experience and commentator has many years working in the unemployment realm. I for one can say that I highly doubt youy heard that from New York unemployment. Take your whine somewhere else.
  11. #11
    BOR
    BOR is offline Senior Member
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    Quote Originally Posted by VykkDraygo View Post
    I have filed a small claim in the amount of $648(the amount I would have gotten from unemplyment for 3 weeks pay). Do i have a case? If so can you please point me to some kind of reference... New York State
    I can't imagine a small claims court in the country entertaining, jurisdiction wise, such a complaint.

    The proper venue is the Unemployment dept. or whatever it is called in NY state.

    Even if it were a wrongful dishcharge/suspension in violation of settled law, which it is not, Small claims court is not the proper venue, the Supreme Court would probably be.

    My guess is it will be dismissed for lack of subject matter jurisdiction?
  12. #12
    VykkDraygo is offline Junior Member
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    liar?

    That's pretty harsh... I really have no reason to lie to anyone! I did get approved for UI (Ive been out of work for months, and just recently filed suit is why i posted a week ago). UI did tell me I couldn't apply unless I was let go. Also they are the ones who advised me to go to small claims court. I do however apologize to those of you who do have some clue as to what you are talking about.
  13. #13
    cbg
    cbg is offline Senior Member
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    You got the correct information based on the information you provided, and I STILL don't believe the UI office told you that you could only collect if you were fired. That may have been what you understood, but it's damned sure that's not what you were told. But now you're changing your story. I have no more time to waste on liars.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  14. #14
    commentator is offline Senior Member
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    I find this really really really hard to believe. And I do have some clue of what I speak. Especially about taking the employer to small claims court because you were suspended, not terminated, and therefore couldn't file for unemployment benefits, and therefore they should be held liable for the benefits you MIGHT have been approved for and have eventually drawn. There sure isn't anything that looks like this that I could see in the NY u.i. statutes.

    Employers get their taxes increased if someone is fired and then is approved for unemployment. They do not enjoy having fired former employees draw benefits. If it were so that a person could not file for unemployment until "officially terminated" there'd be many thousands of NY people running around on permanent suspension without pay for years. Not every person who is fired is able to draw benefits, either, by a long shot. Since you did get approved, more power to you. But you are certainly on your own taking the employer to small claims court in this case, because I have never heard tell of it, and do not think it could possibly be a good idea.

    And I have heard of, and told people many times (when they begin ranting and complaining about how badly they have been treated by their former employer) to sue the employer if you think they owe you money, but I have certainly never told anyone that they should sue the employer for back weeks of unemployment benefits. Because flatly, you are not owed this money by your employer, that is not where unemployment insurance comes from and it is always a personal choice of the claimant when to sign up on a claim.
    Last edited by commentator; 06-27-2011 at 04:07 PM.

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