Fired in Illinois for appearing to be asleep but I wasn't asleep. How to fight back? (file, receive)

[Cg27]

I was terminated from my Job on Nov 19 approximately 5 minutes before my shift the acting supervisor at that time left me a message to come to his office to meet with him before clocking in. Once I arrived he was still meeting with another employee. Once we met the supervisor told me I was being fired for being asleep on Nov 12 and that another employee reported it. He didn't say when it was reported but the day before on Nov 18 I was at a 4pm staff meeting and the supervisor was their and made no mention of it. I know the employer doesn't have to but the timeline here is obviously something to consider. Point being it seems the supervisor got this info on exactly Nov 19 and possibly from the employee who was meeting with the supervisor before me. What's telling is this other employee had been disciplined as well for leaving shift on Nov 12 still clocked in and without permission. Repeatedly leading up to Nov 12 and yet right after my meeting this employee contacts me and tells me the supervisor gave him a warning for what is obviously misconduct and pretty sure was caught on camera. Plus I had to call him to comeback that night because he had been gone for a couple hours and another supervisor from another residence was looking for him and I even told that supervisor he was gone and was still on the phone w me while I'm trying to contact this employee on another line. I'll try to be as relevant as possible as I know the State only cares about the reason why I was fired but also show extueanting circumstances that may help me if I get denied or if I should submit anything to the interview rep before she decides. She told me I had until the end of the week to submit any statement from an employee saying I wasn't sleep but honestly why should I have to?

My termination reads: A staff reported that so and so was asleep in the common area on Nov 12. So and so was viewed on camera appearing to be sleep. Another staff puts a heater in front of so and so, and then leans to the rights and does not move for 45 minutes. Of course this Supervisor and I didn't care for each other but I didn't bring it up during the interview I had on Dec 13 because I knew that wouldn't matter. When I initially spoke with the supervisor on Nov 19 he verbally added other things to why I was fired but did not include them on the actual termination form I received, so again I did not mention those accusations during my interview because they weren't true and the supervisor didn't include them. I thought it wouldn't benefit me to do so. Plus the camera would not have supported the accusations anyway nor did I receive any verbal or written warnings about those things at anytime during my 6 years there. Not even for " appearing" to be asleep.

First off all I was not asleep, I was sitting in a chair. So I wasn't laying down or doing anything deliberate. I didn't have a pillow, my head wasn't down or resting in my hand, I was simply sitting there. There where 3 other employees on shift and they all left at some point and I was there by myself which they all got in trouble for. 2 of the employees took a client out leaving me alone which was why they got warnings. And the other employee left to do personal things without permission. At some point another shift supervisor was sent by the supervisor to check on the house when the ss arrived I was doing my job and he actually called the supervisor to let him know what was going on. I had all the paperwork up to date and documented. I was fulfilling cleaning responsibilities and the other staff arrived later and we're told they needed to contact the supervisor before they leave. I did my job to the best of my ability and I had no warning or write ups at all leading up to Nov 19.

The heater issue, there was one heater that we all took turns sitting in front off not just on Nov 12 but ever since it got cold out. I am not clear if the heater was put in front of me or not but either way is it relevant ? But of course after that employee was done using it. That was common behavior and I was never told it was a issue to use it to get warm. Not moving for 45 minutes I don't know how that can be the case because the supervisor admits the camera does not show my face or the front of me when I asked him about the camera and what he saw. He doesn't even include behavior that would support being asleep. It doesn't show I had to be shook awake or staff even heard me snoring....nothing. It doesn't say it because the camera didn't support the accusation so it seems forced to fit where it doesn't.

The only evidence I have is a text message conversation between myself and an employee and what these text show is 1) before nov 12 and after things were just not good 2) one of the employees from that shift admits she went and told the supervisor things about everyone from that shift because she was "over" everybody and because she got in trouble she was taken everyone down with her. Also this acting supervisor and I did not care for each other. Everyone knew it and they had just hired a permanent Supervisor who was to start in a few days before he fired me and I know he fired me truly because after going to his boss about him and getting my way he was going to get me. In fact I don't know if the employees from that night were trying to save themselves but the employee who admits she basically lied and or exaggerated the truth was the one telling me she felt he was out to get me ever since I stood my ground in a respectful way. But I didn't include this in the interview but the way the interviewer was talking she's going to deny but I hope not. I basically read to her what the term said , said I wasn't sleep. Said the supervisor admitted the camera only shows the back of me and proves nothing or supports the accusation. Said I had meeting on nov 18 w supervisor who said nothing at all to me about nov 12 but fired me on nov 19 and it was important to note when he received this info and why did he wait a week to discipline me, I stressed what the term paper DIDNOT say in proving or even showing any behavior that I was sleep. She made the comment the heater was relevant because it got me fired....huh? I told her it wasn't really relevant because there was no rule saying I couldn't sit there and get warm or that I couldn't use it. I also brought documenting complaints/accusations employees make about another. There was none included during my term meeting or the copy of my employee file. I know known is needed but an employee lied and now I'm not sure if I can win this. I doubt she writes a statement for the company and I am not sure but I believe the cameras record over themselves in a certain amount of days. The camera would be enough to show I'm telling the truth or even if it "appears" I'm sleep that's not being sleep and I never intended to give that appearance.

[Chyvan]

If you get a denial, type in the entire decision. Then you can start getting help with an appeal. On the off chance you know you were denied but the decision is slow in getting to you, you can always file your appeal request without the actual decision letter. Just submit, "the determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled." There will still be plenty of time before your hearing to start preparing. Just do not be late filing that appeal request.

[Cg27]

Thanks for the quick reply. I am all nerves right now. I am not sure if I will get denied but the interviewer seemed to give that feeling. If I do have to appeal I plan on definitely taking your advice.

Based on what I shared as far as evidence and what my employer termed me for what chance do you think I have in not being denied ?

[Chyvan]

In a discharge, it's not your evidence that's all that important. I suppose if you can prove that Nov 12 was your day off, that would be great evidence. However, it's not your job to prove anything, but if you admit to something or it gets misinterpreted, you've just done your employer's job for them. Many people try to win these things based on the fact that what they did is not misconduct. I say, use all means available to you to win. That can mean, the employer doesn't respond (it happens), what they say is trivial (some employers feel so bad about firing you, they don't try to interfer with your UI), their case is all based on hearsay (an HR/payroll/owner says, 'I was told by someone that . . .'), then finally there are employers that prove you did something, and what they proved didn't rise to the level of misconduct.

In my state, sleeping on the job is clearly misconduct.

2. Sleeping on the job is generally considered to be misconduct connected with the work. However, sleeping on the job may not establish misconduct, such as when:
a. The claimant's sleeping was caused by an unusual circumstance, such as a lengthy period of work; or
b. Drowsiness induced by medically prescribed drugs.

Also, from case law, the exceptions provide little help. The courts have ruled that failure to inform your employer of your prescription meds prior to falling asleep is misconduct, and your supposed to inform your employer of the unusual circumstances before you fall asleep.

So just assume that IL is the same way. There is no way you can prove that you weren't sleeping unless you have a witness to testify to that or you can show that you weren't scheduled to work the day you were accused of sleeping. The beauty of the UI system in a discharge, is that you don't have prove that. You'll get benefits if your employer fails to sufficiently prove that you did.

They'll need a credible witness to testify that you were sleeping on the job, and I just don't think they'll do that if it comes to a hearing. However, deputies that do phone interviews don't require that kind of proof, so you just have to wait for that decision to come before you can take it to the next level, and hope you don't because it just makes life easier.

[charlygal]

Originally Posted by Cg27

My termination reads: A staff reported that so and so was asleep in the common area on Nov 12. So and so was viewed on camera appearing to be sleep.

They have video of you sleeping???

[Cg27]

I wasn't asleep. I'm not just saying this its actually true. I have no idea what he was looking at on the video and he admitted the camera showed him nothing...I was sitting in a chair, the chair had arms , and I leaned against one of the arms. Leaned against, as I sat there getting warm from the heater and I recall it very specifically because I was sitting with an employee, he left. There were 2 upstairs and they both asked at different times if I wanted the dinner they made. I responded and I had to turn around to do it sense my back was to them. That was the only interactions I had with them other then telling the other employee left again and then they left. They returned but after that I was around except for them asking me when they got back what the boss said. So there is/was a video of me sitting in a chair with a heater near by. Responding to things I was being asked. First the boss says you sleep 45 to an hour. The write up says only 45 minutes. My guess is I was sitting there less then that but why does it matter when and how I sit? Since July of this year we've had 4 Supervisors and clearly management wasn't consistent in anyway. I doubt the camera will be available. If it is I've got nothing to worry about. But I don't know it all I'm trying to be positive and I want all advice. I'm 26 years old never had this happen and I need all the help and guidance I can get. I'm telling my view of events as honest as I can.

[Cg27]

And I honestly don't recall how i was sitting. To the left the right all I know is I wasn't sleep my head was up that entire shift. I sat their like a Popsicle because it was cold That's it.

[Cg27]

So I finally got a decision today. I am eligible for benefits. I had the initial phone interview on December 13 and they made the determination today. I am completely relieved and I am pretty sure whatever the employer told them just wasn't believable. It's amazing whenever someone gets fired for "sleeping" or some type of gross misconduct most people, even on here assume your guilty. I am certain I wasn't asleep and I'm just thankful to God who sees and knows all things. It's a terrible feeling to be put in a situation like this.

I knew for my situation not saying anything at all in the initial interview besides "I don't know" or being vague wasn't going to cut, I went straight for the kill and made my case. Maybe Illinois is less strict who knows but the fact they sided with me is a relief and I doubt the employer will appeal.

[Ariadne22]

No, Illinois is pretty strict. You apparently were very believable. Illinois will generally find for the employer if there is any doubt.

Congratulations.

[Cg27]

With that being said Chyvan I thanks for the guidance. This employer has actually participated in hearings before where employees agreed to be witnesses for them in specific cases. Publicly documented to. If they could have proven it they would have but I suppose they simply couldn't do it. If someone is terminated for appearing to be asleep, they claim they have it on camera....why wouldn't they fight it? I think the words used in my term are very important....to say "Appearing" to me means...someone isn't sure if the accused was asleep or not.