January 2016 Briefly: An Unemployment Case Analysis
The claimant was discharged for inappropriate behavior. The claimant was allowed benefits upon finding that she was not discharged for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge.
At the Hearing
The Employers Evidence: The claimant, a manager, had been approached by an employee whose mother was very ill. The employee testified that she had wanted to discuss her work-related options with the claimant. The employer’s policy, which the claimant received at hire, required that any supervisor who learned of a potentially qualifying event was to refer the employee to Human Resources or a higher manager so the employee could apply for FMLA leave. Instead of doing so, the claimant recommended hospice. The employer testified that the claimant also denied time off requests from her subordinates who wished to attend children’s doctors’ appointments and other important events. Another factor in her discharge was a group of reports that the claimant behaved badly by yelling at, belittling, and behaving disrespectfully toward her employees. One employee, who did not testify, resigned due to the claimant’s behavior.
The Claimant’s Evidence: The claimant testified that she was aware of the employer’s FMLA policy, however the employee in question did not specifically request it or other time off, and therefore the claimant was not required to refer the employee elsewhere. The claimant also testified that she was discharged in retaliation for mentioning that she might file a complaint against her manager. She denied any inappropriate behavior.
The Hearing Decision
The Administrative Law Judge found that the claimant was discharged for misconduct connected with the work and she was disqualified from benefits. The administrative law judge found that the employer proved that the claimant deliberately failed to follow a company policy of which she was aware and responsible for enforcing as a supervisor. The claimant appealed, arguing that the administrative law judge incorrectly allowed hearsay testimony, and argued that it was the employee’s responsibility to go to Human Resources to apply for leave.
The Board of Review Decision
The Board of Review agreed with the Administrative Law Judge and the disqualification remained in effect. The Board found that the Administrative Law Judge’s Findings of Fact were reasonably based on the evidence, as the employer’s first-hand testimony was clear and credible and supported by other witnesses. The Board decided that because the ALJ found that the claimant was aware of the requirement to refer the employee to HR, and deliberately failed to do so, her discharge was for misconduct connected with the work.
- An employee’s discharge for failing to perform a necessary and required duty may result in a finding of misconduct. In this case, the claimant was aware of the requirement to refer the employee to HR. Her failure to do so was a deliberate violation of the employer’s policy. Be prepared to prove that the requirement exists, that the claimant was made aware of the requirement, and was made aware that failure to follow the required procedures may result in termination of employment.
- If a hearing decision is appealed, the Board of Review will review the evidence and the decision to determine complies with state law. It is the Administrative Law Judge’s responsibility to hear the testimony of the witnesses, examine the evidence, make findings of fact, and make a decision based on the hearing record. The Board’s decision is generally not whether the claimant should be allowed benefits, but whether the Administrative Law Judge made any errors which would require a different decision.* In this case, the ALJ found the employer witnesses’ testimony more credible than the claimant’s, despite the fact that some of the employer’s evidence was hearsay testimony. The Board found that the ALJ’s decision was reasonably based on the record of evidence, and the ALJ’s decision remained in effect. *A few states will take evidence if a hearing decision is appealed. Please contact your unemployment consultants with questions about your state.
To learn more about how Equifax Workforce Solutions can help your organization with unemployment cost management and unemployment hearing support, contact Pete Krieshok at pete.krieshok@Equifax.com.
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