I was fired at a Las Vegas casino for a cash shortage **UPDATE 4/28/19**

[winston3338]

Thanks swalsh411, Thats all I'm going to do is go present my side and be humble about it. After this past saturday night the back pay is now just over $5000. It should have never taken this long or got that high but they're backed up so I'm thinking it's worth an hour of my time. Thanks for all your advice, at least now I have the information I need to give it a shot. Everyone here has been great and I'm happy to have found this site.

Football will come back around in september and I may just go work at another casino for the season. I've worked race and sports for so long it's an easy way of life. This time around I'll be more careful. I got a little lazy and needed new glasses and just wasn't paying attention to my machine like I should have been. It was my fault. In Vegas R&S writers don't die, we just change casinos and I'm lucky to have met a lot of people in the business if needed. Thanks to everyone who posted in this thread. I'll let you know how it goes.

 

[winston3338]

If anyones still with me, I did think of something else to have prepared. Should I ask any questions of my previous employer, if given the chance like...

Do they have any written rules or anything I signed relating to shortages.

Besides my previous period of employment, since I've returned to work the second time, have I had any warnings or write ups for any reasons.
(would this be a good time to ask the arbitrator to consider disregarding the previous write up because it's not related to this period of employment)

Or should I just go into my side of my presentation because I have no idea what I'm talking about.

 

[mlane58]

If anyones still with me, I did think of something else to have prepared. Should I ask any questions of my previous employer, if given the chance like...

Do they have any written rules or anything I signed relating to shortages.

Besides my previous period of employment, since I've returned to work the second time, have I had any warnings or write ups for any reasons.
(would this be a good time to ask the arbitrator to consider disregarding the previous write up because it's not related to this period of employment)

Or should I just go into my side of my presentation because I have no idea what I'm talking about.

You will have the opportunity to question the employer and you should ask questions as they relate to why you were terminated. Don't ask about write-ups that don't pertain to why you were fired. The hearing will most likely ask the employer about any policies that are in place and were you aware of them and whether they have evidence that you were---like a signed aknowledgement of the policy, etc...

 

[commentator]

Instead of asking them questions, I suggest you put out statements of things you know to be true, such as: "other than this one incident, I have had no other previous warnings or disciplinary actions AND I always did my job to the best of my ability." (In various wordings, you really can't say this one too much!)

"To the best of my knowledge, there was no written policy or procedure for dealing with shortages. I was told verbally when I began to work there in 20xx that yada yada. While I was working there, I did not ever see an incident where someone was actually terminated for having a cash shortage (if this is the case.) Cash shortages are sometimes made, in spite of the cashier's best efforts."

Remember the old trial adage. Don't ask a question you don't know the answer to. It's not NECESSARY that you ask questions of the employer, IF they actually show up for the hearing. You might ask them when the end of the season is, and what their usual procedure is at the end of the season (lay offs) bringing it to the attention of the hearing officer that if they hadn't fired you when they did, they would have been laying you off very shortly.

 

[mlane58]

Instead of asking them questions, I suggest you put out statements of things you know to be true, such as: "other than this one incident, I have had no other previous warnings or disciplinary actions AND I always did my job to the best of my ability." (In various wordings, you really can't say this one too much!)

As the employer representative, I would object that this is irrelevant as to why the OP was terminated.

"To the best of my knowledge, there was no written policy or procedure for dealing with shortages. I was told verbally when I began to work there in 20xx that yada yada. While I was working there, I did not ever see an incident where someone was actually terminated for having a cash shortage (if this is the case.) Cash shortages are sometimes made, in spite of the cashier's best efforts."

Again, I would make an objection as this is also irrelevant and wasn't a factor as to why they were terminated and the OP wouldn't have first hand knowledge of other incidents and the outcome of those employees. Also all the employer has to do is produce a signed aknowledgement from the OP about the policy and the OP is toast on that issue.

Remember the old trial adage. Don't ask a question you don't know the answer to. It's not NECESSARY that you ask questions of the employer, IF they actually show up for the hearing. You might ask them when the end of the season is, and what their usual procedure is at the end of the season (lay offs) bringing it to the attention of the hearing officer that if they hadn't fired you when they did, they would have been laying you off very shortly.

Again, IRRELEVANT! The hearing is to decide if the OP qualifies for benefits based on the reason they were terminated not for a possible layoff that might happen in the future. I sure would like to see any state unemployment decisions that would support your thinking. If any hearing officer in any state made a decisiuon in favor of the claimant on any of those factors, Iguarentee I would win on appeal.

 

[commentator]

Unemployment hearings are legally set up procedings but they do not operate as courts do. In this hearing, first one party speaks, the other party speaks. You don't get to do objections or break in while the other party is speaking. If the hearing officer believes that the testimony is irrelevant, they can break in and ask questions, get the process "back on track" but the other attorney or representative can't break in with objections and argue while the one party is presenting evidence.

This has something to do with the intent to keep these hearings as user friendly as they can, avoid the situation where the common layperson has to have a legal representative or they don't stand a chance, as has happened in the courts.

And within the unemployment system, most employers do not relish their responsibility to pay unemployment taxes and allow people to draw benefits charged to their accounts, even when they are legitimately entitled. There is the general expectation that the employer may use any means at their disposal to keep from laying off seasonal employees.

It is quite common for employers to attempt to evade their unemployment responsibilities by suddenly finding it necessary to fire everyone on their staff instead of laying them off due to lack of work. So this is very relevant in this situation.

As to the other incidents and whether the claimant had seen others terminated for this type behavior, notice I did say, IF this is the case. If he did sign something accepting these rules, it's in the employee handbook that an overage of xx amount is immediate grounds for dismissal, that does weaken his case and he shouldn't bring it up. But in information he'd given before, he said has the employee handbook and there's nothing about shortages in it. This would eliminate one way he could have possibly known that a shortage could result in immediate dismissal.

Another way he could possibly have known that it was common practice to terminate people on the spot for shortages is if he had seen it happen during his tenure there. If one regularly sees this happen during the course of his employment, then he knows quite well that he is "one and done" when it comes to a shortage.

It is very possible that this employer used this shortage as a reason to terminate the employee having not ever terminated anyone else for a shortage before, simply because they wanted to get rid of him. While they have a legal right to do so, this does not necessarily mean that his error was misconduct as determined by interpretation of unemployment statutes.

 

[mlane58]

Unemployment hearings are legally set up procedings but they do not operate as courts do. In this hearing, first one party speaks, the other party speaks. You don't get to do objections or break in while the other party is speaking. If the hearing officer believes that the testimony is irrelevant, they can break in and ask questions, get the process "back on track" but the other attorney or representative can't break in with objections and argue while the one party is presenting evidence.

Don't preach to me please. I have been representing employers in unemployment hearings for over 20 years and know very well what the procedures are and yes, you can make objections as is done in a court room and as a matter of fact I just had an appeal heaing last weak and make several objections in that hearing and all were noted by the hearing officer.

As to the other incidents and whether the claimant had seen others terminated for this type behavior, notice I did say, IF this is the case. If he did sign something accepting these rules, it's in the employee handbook that an overage of xx amount is immediate grounds for dismissal, that does weaken his case and he shouldn't bring it up. But in information he'd given before, he said has the employee handbook and there's nothing about shortages in it. This would eliminate one way he could have possibly known that a shortage could result in immediate dismissal.

The handbook doesn't have to state anything about overages. All the employer has to show is that OP's actions were detremental to his business and the employee was aware of it and how many employees you know actually read their handbooks as they say they do? Very few!

Every hearing officer in every hearing I have been involved in (well over 2,000), will always either stop the claimant or employer from proceeding when the testimony veres off track from why the claimant was terminated, not why little johnny was terminated for a similar incident or "I have never been in trouble before, I have always been a stellar employee". because it has nothing to do with why this OP was terminated or what led up to the termination.

 

[winston3338]

Good morning and thank you both for your very detailed replies. I have been reading and noting every word both of you posted all morning but thought I would post after the 30 minute phone consultation I had mentioned in my post #11. She pretty much echoed what has been posted here but it seems to stick a little more hearing it instead of reading it. I was able to take many notes and along with the information in this thread, I feel I have my best shot at presenting my case.

Thank you commentator, you have given me every bit of information I could think of and so much more that I had no idea about. There is no amount of money I could place on the valuable information you have given me but I promise to use it to the best of my abilities. You have been a great asset to have in my corner and I appreciate your time and information. I'm sure you paid for it with your blood, sweat and tears through out your life.

Thank you mlane58, you have presented the other side of this and to be honest, the hair on the back of my neck stood up as I read your replies. You have driven home the point that this will be no walk in the park. You have show-en me that I will be up against true professionals who are on top of their game so I need to stick to the points that I have learned in this thread from everyone who posted. Thanks again and I'm glad I won't be sitting across from you during my appeal. You have been a real eye opener.

 

[winston3338]

Ok, I have received my hearing date and I want to run this by anyone who cares to give advice.

My original decision denying me unemployment says:

Summary of facts:

You were discharged for a violation of the company cash policy.
Your cash shortage was over the limit the employer allowed.
You state you are not certain as to what caused your drawer to be short.

A discharge for violating the company's over and short policy, with warnings for same types of instances is considered misconduct in connection with the work.

Benefits are denied as shown above.
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My notice of hearing says:

The following issues will be considered:

NRS 612.385 Whether the claimant's discharge was for reasons of misconduct.

From: DETR - Unemployment Insurance Benefits Appeals

DETR]DETR - Unemployment Insurance Benefits Appeals - Unemployment Insurance Benefits Appeals

Misconduct: NRS 612.385 Discharge for Misconduct. A person is ineligible for benefits for the week in which he has filed a claim for benefits, if he was discharged from his last or next to last employment for misconduct connected with his work and remains ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit amount in each of not more that 15 weeks thereafter as determined by the administrator in each case according to the seriousness of the misconduct.

General Definition: Misconduct is an act that is in disregard of the employer's interests, a deliberate violation of a known reasonable rule of the employer, a disregard of standards of behavior which the employer has a right to expect, or negligence to such a degree as to show an element of wrongfulness or demonstrate a substantial disregard of the employer's interests. It is not misconduct when the failure of performance is due to inability, or if the action is ordinary negligence in isolated instances or a good faith error in judgment or discretion.

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Heres what I have so far:

1) I Did not received a file so I was going to call monday and see if I can pick up a copy.

2) To the

A discharge for violating the company's over and short policy, with warnings for same types of instances is considered misconduct in connection with the work.

I should let the arbitrator know that the only write up/warning I received was during the first period of employment from Aug, 08 until they laid me off in Dec of 08. After being laid off I collected unemployment for 9 months and fulfilled my requirements to look for work in accord with UI regulations.

When they called me back in Sept/2010, not only was it a different period of employment but, I went through a new employee orientation and a 90 day probation period again, at their insistence proving they treated this like a new position until I was let go in Dec,2010 for this alleged shortage.

3) I'm wondering if I violated any of these rules or any others found at:

DETR - Unemployment Insurance Benefits Appeals

Duty to employer: An employee owes a duty to support and serve the employer's interests and not to engage in acts or statements that show a disregard of the employer's interests. Making inappropriate disparaging remarks about the employer, the supervisor, the product or the service that have the potential of harming the employer, may constitute misconduct. Mere griping or normal complaints directed through proper channels, such as the chain of command or through a grievance procedure, are not misconduct unless it reaches the point of interfering with the work.

Work Performance: An individual's failure to perform work properly or neglect of duty is misconduct if he intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests. It is not misconduct when the failure of performance is due to inability, or if the action is ordinary negligence in isolated instances or are good faith errors in judgment or discretion.

Violation of employer rules: It is misconduct if an employee violates a rule, if the rule is reasonable and the individual knew or should have known the rule, and the violation substantially injures or tends to injure the employer's interests. The violation may be misconduct, even if it involved a minor matter, if the claimant had been given prior warnings for violation of that rule or other rules. While the final incident is of primary consideration in determining misconduct, a series of incidents, while not misconduct taken individually, may establish a pattern of behavior detrimental to the employer's interests and become misconduct.

It may not be misconduct if: (1) the rule is either not enforced or enforced unequally, (2) the violation is condoned, or (3) the employer fails to follow his own policy of progressive discipline, for example, firing an employee for strike one when there is a three-strikes-and-out policy.

That covers it for now. Any input would be appreciated...

 

[commentator]

You are going to have a real leg up as you go into your hearing. Because you know the law, and you can pitch your story in a way that would emphasize the evidence that you did not break the law. Re read what past posts have advised. Prepare, prepare, prepare, as far as having your material outlined. Don't try to write it up and submit it in writing, but put it together, get it organized, and present in an orderly fashion.

DO NOT, repeat DO NOT quote law to your appeals hearing judge. DO NOT cite law, this aggrivates them senselessly. Simply say something like, " I was not familiar with a company policy that stated that I would be terminated if the overage was more than $XXX." If that's true. I think your very best material is that fact that during this period of employment, you had had no prior write ups or warnings. That in your earlier one, you'd had one. That you were doing the job to the best of your ability. That it is really impossible not to have shortages sometimes, even though you were very diligent about following the company's procedures.

Otherwise, good luck to you on your hearing, this is pretty much all I've got on it.

 

[winston3338]

I've got it commentator. I have changed the wording above to I should let the arbitrator know instead of object and I'll make sure I keep it toned down during the hearing. Thanks for all your help.

 

[winston3338]

I guess I have to apologize to Commentator and everyone in this thread and explain that in my quest to find all the information I could, I posted my same information in another forum and some smart a$$, CBG came on, (who by the way contributed nothing to this thread) and posted the following...

Defense for Misconduct Related to a Cash Shortage in Nevada

Quoting cbg:Evidently he does not like the answers that many people have been working hard to give him elsewhere.

https://forum.freeadvice.com/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-firing-wrongful-termination-5/hiring-f...ge-516675.html
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I replied...

http://www.expertlaw.com/forums/showthread.php?p=422427&posted=1#post422427

No, I'm looking for the most information I can have. I only have one shot at this and the odds are stacked against me because their professionals and I'm not. I received excellent answers from very smart people in the other forum but I guess in your world you don't look for other opinions. I call that closed minded. What do you call it CBG?

So I'm sorry if my using the WORLD WIDE WEB offends anyone besides CBG but I need all the information I can get. I didn't mean to offend anyone who took the time to answer here. You have all been very kind to help me so much. Thank you again.

 

[cbg]

And here is the response I left for you:

Commentator has over 30 years experience on the inside of UI issues. I post on a half dozen boards and no one on any other board has a fraction of the knowledge she does.

And yes, when volunteers have been bending over backwards for days trying to help you, I find it offensive when you appear to be blowing it off and looking for alternate sources of information. Which may or may not have been what you intended but for damn sure is how it comes across.

Had you posted on multiple boards simultaneously, I would have responded differently. But when you wait until after the responders on the sole board you initally posted on had been working on your situation for DAYS, and THEN you post elsewhere, whether you intended it as such or not it comes across as an insult.

 

[winston3338]

Thanks for your response CBG. I have asked the moderators of that site to delete that thread.

 

[winston3338]

Well, if anyone sees this it is my whole case notes so if you have any advice, corrections or comments I am open to them. Tomorrow is d-day and this is all I have to present. I have all my work records and have made two sets of copies for the referee and the employer.

I WOULD ASK THAT YOU DISREGARD THE VERBAL CONSULTATION/WARNING ISSUED IN 2008 BECAUSE:

THE VERBAL CONSULTATION OCCURRED DURING A DIFFERENT PERIOD OF EMPLOYMENT. THE FIRST PERIOD OF EMPLOYMENT WAS FROM AUGUST/2008 UNTIL DECEMBER/2008 WHEN THAT VERBAL CONSULTATION OCCURRED AND I NEVER HAD ANY OTHER PROBLEMS AND RECEIVED A SATISFACTORY REVIEW. THAT PERIOD OF EMPLOYMENT ENDED WHEN I WAS TERMINATED DUE TO REDUCTION IN THEIR WORK FORCE IN DECEMBER/2008. AFTER THIS WARNING I WORKED HARD TO LEARN HOW NOT TO LET IT HAPPEN AGAIN.
* (GIVE FIRST PERIOD OF EMPLOYMENT COPIES) *

I WAS OUT OF WORK FROM DECEMBER/2008 UNTIL SEPTEMBER/2009 AND WHILE COLLECTING UNEMPLOYMENT. I FULFILLED MY OBLIGATION TO LOOK FOR WORK AS REQUIRED BY THE DEPARTMENT OF EMPLOYMENT.
* (GIVE COPIES OF UNEMPLOYMENT PAYMENTS) **

IN SEPTEMBER, 2010 I REAPPLIED ON LINE AND WAS HIRED FOR A SECOND PERIOD OF EMPLOYMENT THAT HAD IT’S OWN EMPLOYEE ORIENTATION AND 90 DAY PROBATION PERIOD. I RECEIVED A SATISFACTORY REVIEW THAT’S IN THE SECOND PERIOD OF EMPLOYMENT PACKET THAT I GAVE YOU. THE FACT THAT THEY HIRED ME FOR A SECOND TIME SHOULD PROVE THAT THE WARNING WAS IN THE PAST AND FORGIVEN BY THE COMPANY. DURING THIS PERIOD OF EMPLOYMENT THERE HAD BEEN NO WRITE UPS OR WARNINGS ISSUED. I ALSO HAVE THE EMPLOYEE HANDBOOK AND IT HAS NOTHING ABOUT SHORTAGES OR CONSEQUENCES. I WAS TOLD I WOULD PROBABLY BE LAID OFF AGAIN AFTER THE END OF FOOTBALL SEASON AND THAT WAS JUST TWO WEEKS AWAY. I DID MY JOB TO THE BEST OF MY ABILITY AND DIDN’T WANT TO, OR MEAN TO GET FIRED. I DON’T KNOW OF ANY EMPLOYEES THAT WERE ACTUALLY TERMINATED FOR HAVING A CASH SHORTAGE. CASH SHORTAGES ARE VERY COMMON IN THE R&S BOOK. IT WAS NEVER DISCUSSED NOR WAS I FAMILIAR WITH THE COMPANY POLICY THAT A SHORTAGE OF OVER $500 WOULD BE AUTOMATIC TERMINATION. THIS WAS AN UNINTENTIONAL MISTAKE
* (GIVE COPIES OF SECOND PERIOD OF EMPLOYMENT) *


* CLOSING STATEMENT, ADDRESS THE MISCONDUCT *

I was doing my job to the best of my ability and made a reasonable error that’s common and happens all the time in a race and sports book. I didn't do it intentionally, knowingly, or deliberately. I was working in good faith. Shortages are very common in the race and sports book and I did make mistakes occasionally, everyone does. It was impossible for me to avoid doing it. I wouldn't have done it if there were any way I could have helped it. I wanted to keep my job and even offered to pay the money back but I was fired anyway. I was following, to the best of my abilities, the accepted procedures for doing the job. I read that a “loss is ordinarily attributed to inefficiency, inability, incapacity, good-faith errors in judgment or discretion, or some combination of these factors and not to misconduct” and that’s what happened here.








Misconduct: (NRS 612.385), General Definition: Misconduct is an act that is in disregard of the employer's interests, a deliberate violation of a known reasonable rule of the employer, a disregard of standards of behavior which the employer has a right to expect, or negligence to such a degree as to show an element of wrongfulness or demonstrate a substantial disregard of the employer's interests. It is not misconduct when the failure of performance is due to inability, or if the action is ordinary negligence in isolated instances or a good faith error in judgment or discretion.