November 2017 Briefly: An Unemployment Case Analysis

November 2017 Briefly

Background

The claimant was discharged for excessive absenteeism. She was disqualified from benefits upon a finding that she was discharged for misconduct connected with the work. The claimant appealed, and a hearing was scheduled before an administrative law judge.

At the Hearing

The Employer’s Evidence: The employer offered evidence and testimony showing that the claimant, who had received the employer’s attendance policy at hire, was discharged for violating it. The claimant’s final warning indicated that further unexcused absences could result in the termination of her employment. Two employer witnesses testified that the claimant had been told verbally that, per policy, further absences could only be excused by a doctor’s note. (Both witnesses had made notes of that conversation, and provided those notes as evidence during the hearing.) On the date of the final incident, the claimant reported an absence due to illness. One of the employer’s witnesses testified that he gave the claimant the opportunity to provide a doctor’s note to excuse the absence, but she could not.
The Claimant’s Evidence: The claimant testified that she had received the employer’s policy, and had received prior warnings as reported by the employer’s witnesses. However, she testified that the conversation about providing doctor’s documentation never happened and she was not under any obligation to provide a doctor’s note to excuse her final absence.

The Hearing Decision

The administrative law judge (ALJ) found that the claimant was discharged for misconduct connected with the work, and she was disqualified from benefits. The ALJ found that the claimant’s record of absenteeism, and the fact that she’d received multiple warnings, were sufficient evidence to prove that she’d violated the policy. Her record of absenteeism rose to the level of misconduct connected with the work and she remained disqualified from the receipt of benefits. The claimant appealed.

The Board of Review Decision

The Board of Review agreed with the administrative law judge and the claimant remained disqualified. The Board found that the employer proved that the employer maintained an absenteeism policy which provided that doctor’s documentation could be required for absences, and that the claimant was specifically told that further absences would need to be excused with documentation. The employer also proved that the claimant violated the policy and was warned. She was unable to excuse the final incident; therefore her record of absenteeism rose to the level of misconduct connected with the work.

Takeaways

  1. Excessive absenteeism in violation of a known and reasonable company policy can be disqualifying misconduct. In a case involving excessive absenteeism, it is important to be prepared to present evidence about the provisions in your policy, proof the claimant was aware of the policy, proof the claimant violated the policy, and was warned pursuant to the policy. The claimant will be allowed to testify about the reasons for her absenteeism. If the final incident and/or the majority of the incidents were for reasons which were outside of the claimant’s control to void, including illness, the claimant could be allowed benefits.
  2. If a claimant could have avoided discharge by presenting documentation to prove that an incident was outside of her control, the claimant could be disqualified. In this case, the employer was able to prove, despite the claimant’s denial, that she was aware that doctor’s documentation would be required to excuse an absence. Both managers involved in the conversation testified about it under oath and provided notes which were written at the time of the conversation. The claimant’s denial that the conversation happened was therefore less credible than the employer’s testimony. If you have reason to believe a claimant will deny an event, provide all possible proof that the event happened. Any notes which were made at the time of the event can support first-hand testimony. (If one person’s notes are presented at hearing by someone else, and the note-writer does not appear to testify, however, they can be considered hearsay and might not outweigh a claimant’s denial under oath.)

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About Peg Elofson

Peg oversees our Unemployment Hearing Consultants. She has more than 15 years of experience in the unemployment industry, with particular focus in unemployment appeals. Her experience includes account management, hearing representation, and Board of Review appeals. Peg joined Equifax through the acquisition of TALX Corporation in 2007. She holds BSBA and JD degrees from Creighton University.