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Old 11-05-2013, 03:09 PM
 
9 posts, read 16,258 times
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I will start by summarizing my situation and then ask a few specific questions...

I began working with a state agency in SC just under a year ago. I worked in a small department in the human/social services field and had a little over ten years' experience in the field. I went through a population-specific training period over the first three months of my employment. This training was beneficial but provided little guidance on specific procedures in my office and community. Upon completing the training, I was assigned a caseload of 30-35 clients and placed in the on-call rotation. At approximately the same time, I was moved from a position classified as "temporary" to "full-time", which allowed me to obtain fringe benefits. For the first two months after certification, my assignments were completed by required deadlines and I truly enjoyed my work.

About two months after I became certified for my position, our department lost two of its five caseworkers. The extra work was divided among the three of us remaining. Meanwhile, new cases were received on a daily basis and added to our already-overwhelming workload (i.e., my primary caseload increased by 20-25 cases within a month). We were expected to meet with clients in their homes monthly (spread throughout the county), attend court hearings, investigate clients, maintain case files, document activities, write service plans, complete assessments, and other related duties. We were provided with a vehicle one day per week (requests for cars may or may not be honored at other times) and required to stay in the office one day per week; using a personal car was customary and requesting mileage reimbursement was a cumbersome process that took valuable work time.

Our supervisor was often demanding and overbearing (to put it mildly), micromanaging and threatening rather than supporting our team. I began struggling to keep up with the workload and fell behind on the third month, at the same time that expectations were nearly doubled. On a daily basis, I took work home with me so that I could complete paperwork on my own time, often working until midnight. I was called into my supervisor's office on 6/19 and counseled on missing a deadline for a client by a day (this occurred on 5/25). I acknowledged the error and signed a memo. My supervisor told me that I "may not be cut out for this type of work" and made it clear that she was not a fan of mine during this meeting. On 7/15, I received a warning of substandard performance due to my paperwork being behind (no clients were ever neglected...I was assessing and addressing the needs of nearly 60 clients). I was advised that I had 30 days to get everything caught up to meet expectations.

Due to personal issues, I was not able to immediately make significant progress on this task outside of work hours. Each day, my supervisor would demand that some issue be addressed or assignment be completed while constantly insisting on my explaining why other work had not been completed. The situation became increasingly stressful. However, I was determined to keep my job and was able to allocate a significant amount of time to working at home before the 30 days lapsed. On 7/25, I was called to the office from a field visit by my supervisor. At that time, I was notified that my position was terminated and told to pack my personal belongings. The termination letter states that "your employment with _______ is terminated for unsuccessful completion of your probationary period."

I applied for UI after losing my job and had a telephone interview. On 8/21, I received a denial of UI benefits. It states that I was "discharged from your job with your most recent bona fide employer for failing to perform assigned work to the satisfaction of your employer. This is a discharge for cause in connection with the work under...you are disqualified for 18 weeks." On 10/31, I received a Notice of Appeal Hearing by Telephone, which is scheduled for tomorrow. It states that the issues are: voluntary quit (for good cause) and discharge (for disqualifying cause).

Questions:
1. What can I expect during the hearing? Will I most likely speak directly with my former supervisor or an HR person?
2. What types of questions would you recommend my asking the other party?
3. Documentation suggests that their version keeps changing...unsatisfactory probationary period, not completing work to expectations, and voluntary quit. Is this typical or does it seem a bit sketchy?
4. SC law states: "For the purposes of this item, "misconduct" is limited to conduct evincing such wilfull and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer." Are they suggesting that my actions constitute misconduct?
5. I was never provided with an employee handbook as I have been at previous jobs. The only time I would see policies is when a hard copy was attached to the counseling memo and substandard work notice. Is it worth bringing this up/relevant as an issue?
6. I have received no discovery or evidence to be presented by the opposing party. I understand that should be made available to me prior to the hearing. What should I expect with that?

Any other thoughts, experience or advice would be greatly appreciated. This process is challenging and there are a lot of unknowns for me.
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Old 11-05-2013, 04:39 PM
 
14,500 posts, read 30,913,531 times
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First off, poor performance is not misconduct in the UI world. Never has been. It's treated as inability.

The exception would be if you used to be able to do your job, and then started to fail.

Not sure what your adjudicator was thinking other than to deny you in hopes you'd let it drop. What you need to do is be sure to bring up the increased case load. You can't be punished for being able to handle 30-35 clients, and then because you failed to handle the 20-25 client increase that you were somehow slacking off. So be sure to mention the INCREASE in work load. At that point, any failure on your part is inability not misconduct.

Because this is a discharge, the burden is on the employer to prove the misconduct. Therefore, you don't have to say hardly anything. You only need to make sure that if the employer is trying to establish that you used to do your job and then started to fail, that you be sure to stress that the workload was increasing and that was the cause of your failure so that you can't be held to have delibrately done anything wrong.
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Old 11-05-2013, 04:50 PM
 
9 posts, read 16,258 times
Reputation: 20
Thanks for your encouragement! I hope that this employer routinely challenges claims in the hopes that no appeal is filed. I would understand if I just slacked off at work, but I was virtually neglecting everything else in my life in an effort to keep up with the workload. Thankfully, I have a supportive family because my kids and I would be in bad shape otherwise! I don't know how people survive while their appeal is pending.
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Old 11-05-2013, 05:07 PM
 
Location: Wisconsin
25,590 posts, read 56,250,866 times
Reputation: 23241
Quote:
This is a discharge for cause in connection with the work under...you are disqualified for 18 weeks."
That's a pretty stiff disqualification period.

However, you should be able to collect benefits in another 3-4 weeks, if I'm counting correctly.

Nonetheless, if you win the appeal, you'll be paid retro for those 18 weeks.

Interviewer didn't bother to ascertain intentional and wilful misconduct - unless there is something in the SC code which allows SC to impose a penalty for poor performance - whether or not intentional - which is odd.

Chyvan, could there be something in the SC Code which would allow a penalty under OP's circumstances - i.e., not wilful and deliberate?

Might be a good idea to determine SC's status on that issue before the hearing.

Last edited by Ariadne22; 11-05-2013 at 05:32 PM..
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Old 11-05-2013, 05:32 PM
 
Location: home state of Myrtle Beach!
6,888 posts, read 22,426,019 times
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Quote:
Originally Posted by Ariadne22 View Post
That's a pretty stiff qualification period.

However, you should be able to collect benefits in another 3-4 weeks, if I'm counting correctly.

Nonetheless, if you win the appeal, you'll be paid retro for those 18 weeks.

Interviewer didn't bother to ascertain intentional and wilful misconduct - unless there is something in the SC code which allows SC to impose a penalty for poor performance - whether or not intentional - which is odd.

Chyvan, could there be something in the SC Code which would allow a penalty under OP's circumstances - i.e., not wilful and deliberate?

Might be a good idea to determine SC's status on that issue before the hearing.
So SC State is trying to get out of paying. Not surprised one bit. Remember, I'm an SC resident and hubby is a former UE recipient. I don't think too highly of our state government.

When hubby was discharged from his job he was not meeting sales goals. His UE was approved without having to appeal. Sure, he had to wait, I don't remember how long now, several weeks to actually start receiving benefits. Isn't OP's situation similar, basically?
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Old 11-05-2013, 05:34 PM
 
Location: Wisconsin
25,590 posts, read 56,250,866 times
Reputation: 23241
Except SC may view working on quota/commission differently than working for a wage.
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Old 11-05-2013, 07:21 PM
 
9 posts, read 16,258 times
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Quote:
Originally Posted by Ariadne22 View Post
Except SC may view working on quota/commission differently than working for a wage.
I was an exempt employee, salaried position. The state law seems clear that not meeting "quotas or production requirements" is not a disqualifying offense, per state statutes; I would equate my caseload as my "quota".

I have a paralegal certification (trying to change fields)...I'm pretty certain that the facts of the case are such that I am due UI benefits. However, I have seen some foolishness in the SC judicial system so you never know!

If my former employer has evidence, shouldn't I have received a copy by now? I'm also unclear as to whether I am responsible for sending copies of my paperwork to them as opposed to the unemployment office. Any insight as to the procedures of the hearing itself would be helpful.

Thanks so much to all!

Last edited by jeninsc74; 11-05-2013 at 07:23 PM.. Reason: Revision
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Old 11-05-2013, 07:26 PM
 
14,500 posts, read 30,913,531 times
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According to this http://workforcesecurity.doleta.gov/...onmonetary.pdf on page 5-17, SC allows for a disqualification of WF+20, and then when you read footnote 6, "Partial ineligibility of 5 to 19 weeks, plus waiting week, if individual is discharged for cause other than misconduct. Duration of ineligibility period determined in each case according to the seriousness of the cause for discharge."

So apparently, SC recoginizes "for cause" and I have no clue what that legal definition has been construed to mean. At 18 weeks, they pretty much threw the book at you.

I'll do some googling to see if I can find a SC court decision that addresses the issue, but I'm wondering if this is something that was part of UI changes in the laws of many SE USA states like GA and FL, and there won't be any test cases.

UPDATE: It is new. I checked the 2006 guide and SC only had a misconduct disqualification. Let's hope this has been in existance long enough that it's gone to court now, and I can see how a judge has intrepreted it. Now, I'm not so sure it's new, because I found a 1991 case addressing the issue. Ok, it is new wording in the law, but apparently SC courts had already adopted the standard in case law from long before.

This is how it's defined:

In Lee v. S.C. Employment Security Commission, 277 S.C. 586, 291 S.E. (2d) 378 (1982), we interpreted the phrase "discharge for misconduct"[2] to include "the disregard of the standard of behavior which an employer can rightfully expect from an employee." 277 S.C. at 588, 291 S.E. (2d) at 379. (Emphasis supplied). We have not had occasion to determine what behavior an employer may rightfully expect. However, the general rule is that, where the employer's request is reasonable, a refusal to comply will constitute misconduct, justifying a discharge for cause. See, e.g. Sandstrom v. Douglas Machine Corp., 372 N.W. (2d) 89 (Minn. App. 1985); Simpson v. Commonwealth Unemployment Compensation Board, 69 Pa. Cmwlth. 120, 450 A. (2d) 305 (PA 1982); Cf., Singleton v. Ross, 82 A.D. (2d) 952, 440 N.Y.S. (2d) 767 (1981). "What is `reasonable' will vary according to the circumstances of each case," Sandstrom, supra, 372 N.W. (2d) at 91. Not only must the reasonableness of the employer's request be evaluated, but also the employee's reason for noncompliance. Simpson, supra.

I think the bolded section is the key. The increased workload may not have been reasonable, and you didn't refuse to comply. This is where that "I did the best job I could" testimony comes in. You didn't refuse, but tried your hardest to meet the requirements, so be sure to add that when it's your turn to talk.

Last edited by Chyvan; 11-05-2013 at 07:48 PM..
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Old 11-05-2013, 10:16 PM
 
9 posts, read 16,258 times
Reputation: 20
I am reviewing the case law that you cited and appreciate your efforts to assist me with this issue. If I stumble upon additional questions on the subject, I'll post them on this thread before the hearing. Thanks!
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Old 11-05-2013, 10:50 PM
 
Location: Wisconsin
25,590 posts, read 56,250,866 times
Reputation: 23241
Be sure to cite the relevant case law supporting any argument you make. I'm sure you know that, but just sayin'. You really do have to connect the dots for the ALJs. Makes decision against an employer easier, not mention you remove their wiggle room..

Let us know what happens.
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