Am I eligible for unemployment?

[CSantelli1985]

I just cut and pasted.

 

[CSantelli1985]

If commentator responds to this, that would be great.

 

[>Charlotte<]

On one site you said you've already filed. On this site you said you haven't. Which is it?

 

[CSantelli1985]

I filed already. I copied and pasted the other thing. My claims examiner interview is November 5th. New Jersey has 3 levels of misconduct: Simple, severe, and gross. Simple misconduct only brings an 8 week penalty and then you can collect. If I get hit with that, I will just let the sleeping dogs lie, because the 8 weeks will be up in a few weeks anyway, and there are stories about people appealing simple misconduct disqualifications and having it bumped up to severe. That's a big risk. It also takes several months to appeal and by then, I may well have found another job already.

 

[commentator]

This person is a classic example of how you can't fix ....you know. I'll just let sleeping dogs lie, he says, because if you appeal simple misconduct, you can get it bumped up to ...... yada yada yada. Wrong, too. Okay, just don't apply then. Don't appeal if you get denied. How's that? Since your mind was already made up, and you waded in here and got exactly the misinformation you were looking for out of what you were told, you need to just go on and follow your own advice. It is maddening to tell people something they don't have a clue about, and have them come back and argue with everyone who might accidentally know something about it (and I bet he argued with the people who were signing him up on unemployment too!) If you are denied...oh well, forget it. Glad I missed this one, folks.

 

[CSantelli1985]

This person is a classic example of how you can't fix ....you know. I'll just let sleeping dogs lie, he says, because if you appeal simple misconduct, you can get it bumped up to ...... yada yada yada. Wrong, too. Okay, just don't apply then. Don't appeal if you get denied. How's that? Since your mind was already made up, and you waded in here and got exactly the misinformation you were looking for out of what you were told, you need to just go on and follow your own advice. It is maddening to tell people something they don't have a clue about, and have them come back and argue with everyone who might accidentally know something about it (and I bet he argued with the people who were signing him up on unemployment too!) If you are denied...oh well, forget it. Glad I missed this one, folks.

I'm sorry. I'm just a pessimist by nature. I already filed for unemployment and have my fact finding interview November 5th. I only said I will let the sleeping dog lie if I get the 8 week disqualification because it is possible to get bumped up to severe misconduct on appeal and that's a big risk. It is possible I won't get any disqualification. It's also possible the HR manager won't even respond. The HR department is very disorganized there. Commentator, CBG said you are an unemployment claims adjuster, what do you think about my situation?

 

[LdiJ]

I'm sorry. I'm just a pessimist by nature. I already filed for unemployment and have my fact finding interview November 5th. I only said I will let the sleeping dog lie if I get the 8 week disqualification because it is possible to get bumped up to severe misconduct on appeal and that's a big risk. It is possible I won't get any disqualification. It's also possible the HR manager won't even respond. The HR department is very disorganized there. Commentator, CBG said you are an unemployment claims adjuster, what do you think about my situation?

Its very frustrating to deal with both pessimists and optimists on a legal forum. They tend to view things their way and its hard to get legal reality across to them. Its much easy to deal with pragmatists.

 

[eerelations]

Commentator, CBG said you are an unemployment claims adjuster, what do you think about my situation?

commentator has already responded. She's not impressed with your attitude and believes (based on your posts here and on the other site) that no matter what she says, you are going to twist it to suit your pessimism.

 

[CSantelli1985]

commentator has already responded. She's not impressed with your attitude and believes (based on your posts here and on the other site) that no matter what she says, you are going to twist it to suit your pessimism.

I won't. I promise. My take on the situation now is my boss saying the last incident was borderline insubordination was a stretch. I would say that it I had been written up for insubordination before, it could be a problem, but that isn't the case. I'm really sorry about my attitude. None of the advice I got on here came from somebody who is an unemployment claims examiner who probably sees situations like mine regularly. I am only worried because of what my boss said. If there was an HR person in that termination meeting and she said, "we won't contest unemployment," I wouldn't be worried. Again, I am sorry for all the pessimism. And my mind is not made up. I am just worried.

 

[cbg]

No, but much of the advice you got here came from HR people who are the ones who deal with unemployment claims from the employer side, and who make the decisions as to who to contest and who not to. We told you that we would not contest the claim if you worked for us, but that evidently wasn't good enough for you.

 

[commentator]

I am not currently a claims adjuster. I did work extensively in the field at one time. I do not, of course, work in New Jersey, but in regard to unemployment insurance, all the states work on the same basic framework, which is based on the federal definitions and guidelines.

In no way does the employer get to say whether or not you draw unemployment, whether they fight it or not. It was absolutely a bad idea for you to even ask your employer about it. Employers pay unemployment taxes based on the number of people who draw from their company. They don't want ANYBODY to get unemployment. And the decision to grant benefits is not up to the employer. It is up to the unemployment system which listens to both sides of the issue and makes a decision based upon the most believable of the two parties. You may be lying, they may be lying. They look at the story and try to get the big picture.

You did not commit misconduct. You did not commit borderline insubordination, regardless of what your employer told you. You were essentially begging them to threaten you and lie to you by whimpering to them about whether or not you'd get unemployment. They complied with your wishes. They'd have been even happier if you had not filed at all. But by law, you have the right to file, and have a decision made regarding whether or not the employer had a valid misconduct reason to terminate you.

I DO NOT SEE ANY CLEAR CUT MISCONDUCT ANYWHERE IN YOUR STORY. You did not deliberately do a poor job or sabotage anything. You did not over sell your skills when you came to work with them. You have received only one recent formal warning (all the verbal "Pick it up!" in the world doesn't really count.) After receiving it, you did your best to improve your performance. Didn't you? Of course you did.

In fact, as you have been repeatedly told, misconduct due to performance is one of the least likely issues a person can be terminated for and it be considered misconduct. In order to receive unemployment benefits, you must be out of work "through no fault of your own." That means the employer cannot show that they had a valid misconduct reason to terminate you.

Misconduct is wrong work related behavior that you had control over. If there is a reasonable amount of evidence that you showed up for work and did your best, all the performance issues in the world are not going to disqualify you.

Misconduct for performance issues would be like say, if, at one time, you did the job adequately, and then you started just goofing off, sleeping under the desk instead of working, doing your personal business instead of your assigned work, that's misconduct. It isn't what you're worrying about, and it most certainly isn't gross misconduct. Gross misconduct is something that was so bad that you should've known that you shouldn't have done it, even one time. Stealing money from your employer, punching a co worker in the face, setting the building on fire, those are the gross misconduct reasons that would disqualify you even if the employer does not "fight" the unemployment. If you went into a hearing, and they found that you had done something like that, and that was the reason you were fired, there'd be no unemployment, regardless.

What you describe doesn't even sound like misconduct of any kind at all to me. And for heaven's sake, there's NOTHING in this story you've given us that would cause your claim to be bumped up from the category of " misconduct lite" (if it is to be determined as misconduct in the first place) to serious misconduct. If you were not approved, you'd be silly not to appeal the claim since it costs nothing and HAS NO DOWNSIDE. You're not going to be jacked up to gross misconduct. You either are or are not guilty of misconduct in general. You know you are not, regardless of how you dither around and repeat what your employer told you about this and that on the internet forums here.

You tell your story to unemployment, and you let the chips fall as they will. They are going to ask the right questions of you, such as "Did you do the job to the best of your ability?" Whether the employers were pleased with your performance or not, if you were showing up and trying your best, they very likely will NOT call it misconduct. Do not say you committed misconduct or agree with your employer that they should not have kept you on board or you really weren't doing a good job or that you were insubordinate. Why would you do something self defeating like that? Don't bother to repeat all they told you about whether or not they'd "let" you draw to the adjudicator. It's totally irrelevant.

The unemployment system is not supposed to be slanted in favor of the employer. If it was, every employee would be fired for something, and no unemployment taxes would ever be paid by employers.

No one is expected to be an expert in unemployment insurance who does not work in the system. You have received plenty of good sound general information on line both in this forum and others. And then when you say, having cooked up some sort of plan, "Oh well...., I guess I'll just...." yada yada yada, and what you are saying is not the wise thing to do IF you are adjudicated to have committed misconduct I get a little frustrated.
If you're denied, or penalized, appeal the darn thing. Even if you've found another job, you want to be back paid for the weeks since you filed the claim, the weeks you were actually off work before you found another job.

It sounds like your employer was trying to get rid of people due to their work situation. They needed to terminate someone, would prefer it if everyone just quit, when they wouldn't have to lay anyone off, and there would be no unemployment at all. They may have made a hiring mistake by hiring you, when you did not really have the skills they were looking for. Too bad for them. Not your fault, if you were frank with them, and you tried your best to learn and please them.

That you were terminated, that they said it was for "performance issues," that doesn't mean you will not be approved for unemployment benefits. No amount of "what are my chances do you think?" on the internet will help anything. You'll hear soon. If you are denied or penalized, appeal.

 

[commentator]

I in no way meant to slur good employers or indicate that all employers wouldn't pay their legitimate taxes if they could avoid it. But the bottom line is that it costs the employer money if the claim is approved. Therefore, it is to their advantage if the employee is fired for a good misconduct reason and is not approved for benefits.

The claims system has heard it all before. They know that most employers don't want you to be approved. They may or may not have a valid misconduct reason to terminate you, but they are not automatically believed. This OP should just tell what happened on the day she was terminated, and skip telling the claims adjudicator negative things that would work in the employer's favor. Stress that he/she always did the job to the best of their abilities. Then TRY to let it go until it's time to appeal. The OP should remember that the employer is free to appeal if she is approved fully. They may not. They may. Doesn't change the case one iota. That stuff about them jumping up the level of misconduct after the appeal hearing does NOT apply to this situation. They're not going to find out she shot the HR rep or poisoned her boss with Skinny Sweet during an appeals hearing.

 

[CSantelli1985]

I in no way meant to slur good employers or indicate that all employers wouldn't pay their legitimate taxes if they could avoid it. But the bottom line is that it costs the employer money if the claim is approved. Therefore, it is to their advantage if the employee is fired for a good misconduct reason and is not approved for benefits.

The claims system has heard it all before. They know that most employers don't want you to be approved. They may or may not have a valid misconduct reason to terminate you, but they are not automatically believed. This OP should just tell what happened on the day she was terminated, and skip telling the claims adjudicator negative things that would work in the employer's favor. Stress that he/she always did the job to the best of their abilities. Then TRY to let it go until it's time to appeal. The OP should remember that the employer is free to appeal if she is approved fully. They may not. They may. Doesn't change the case one iota. That stuff about them jumping up the level of misconduct after the appeal hearing does NOT apply to this situation. They're not going to find out she shot the HR rep or poisoned her boss with Skinny Sweet during an appeals hearing.

Actually, I'm a he, but I see your point. The best thing I can do in this claims examiner interview is be honest and say as little as possible. If the company doesn't respond to the unemployment form, and they ask if I had ever gotten any written warnings, I will say yes, because my work wasn't up to her standards. I don't want to lie because they may still contact the employer. I will say that I was conscientious, always came in on time, stayed late, asked when I didn't understand something. That sort of thing. If the claims examiner asks about that final incident, I will just say I was under the gun and my boss said two different things and I misunderstood. That certainly isn't insubordination. It would be insubordination if my boss told me something and I refused, and there were witnesses, or if I had been written up for insubordination before. But that isn't the case. It almost seems like a he said/she said situation. I also think that my boss saying, "You just gave up at the end. You weren't even trying," won't hold up. That is just her opinion.

 

[commentator]

What you are about to have is a "fact finding." This means that you'll be talking to an adjudicator who will make the initial decision either granting or not granting benefits. Then if either party wants to appeal would come the formal hearing at which you will have a hearing officer and both parties either by phone or in person.

Absolutely do not lie. They will make a big attempt to contact the employer under these circumstances. You can bet your buttons that the HR person will respond, regardless of what the supervisor may have said to you. Even if they don't, you still tell the absolute truth. Just don't give too much negative information they aren't asking for. DO NOT admit to having committed misconduct. Do not bring up any other issues you might have been warned about like coming in late or having a bad attitude or chewing gum in line.

But in this initial situation, they will be asking you specific questions. Listen carefully. It'll likely be "What happened on the last day you were employed?" "What exactly did your employer say was the reason you were being terminated?" "Had you had any warnings?" (Of course at this time you will be very honest and tell them you did receive the written warning. Be sure to say that when you got this, you promised to improve your performance and that you tried to do this TO YOUR UTMOST.) They usually ask something like, 'Did you know your job was in jeopardy?" Of course you would answer this affirmatively, but stress also that you were trying your very hardest and that you always did the job to the best of your abilities.

See it's not so much whether the employer fights it or not, its whether there has been a pattern of progressive discipline for misconduct by the employer to the employee, that the claimant was aware that they were in danger of being fired for the misconduct they are being warned about (see why "performance" is such a tough one to convict on?) that they had control of the behavior (unlike, say, being absent because you were very ill with medical statements) and that, knowing they were in danger of being terminated, they continued to do the misconduct behavior, chosing to be fired rather than change or do differently.

The employment system looks at it that you can't help not being talented enough to produce the performance demanded. Not catching on quick enough is not misconduct. Not being fast enough to make production isn't misconduct. Not being able to sell seventy vacuum cleaners a month isn't misconduct. You gave them no false impressions of your abilities (even though doing this isn't considered misconduct, either. The unemployment system looks at it as that they should've checked your references to see if you could do what you claimed you could do. ) You made a good faith effort to learn to do what they wanted you to do. You did not, at any time, just give up and stop trying. DO NOT admit to anything like this.

Don't mention what your boss said, except that he said you were being fired for performance issues. You don't have to say that he said you committed "borderline insubordination." That's his opinion. You don't tell them that he said he "wouldn't fight" your receiving unemployment. As I said, that's irrelevant. It's not his to say. The less you talk, except to answer the questions, the better. Be positive, professional and get to the point. That's probably where women tend to make a mistake, because they tend much more than men most of the time to give too much information, not stick to the point.

Good luck with this, try not to stress, and let us know how it all works out.

 

[CSantelli1985]

What you are about to have is a "fact finding." This means that you'll be talking to an adjudicator who will make the initial decision either granting or not granting benefits. Then if either party wants to appeal would come the formal hearing at which you will have a hearing officer and both parties either by phone or in person.

Absolutely do not lie. They will make a big attempt to contact the employer under these circumstances. You can bet your buttons that the HR person will respond, regardless of what the supervisor may have said to you. Even if they don't, you still tell the absolute truth. Just don't give too much negative information they aren't asking for. DO NOT admit to having committed misconduct. Do not bring up any other issues you might have been warned about like coming in late or having a bad attitude or chewing gum in line.

But in this initial situation, they will be asking you specific questions. Listen carefully. It'll likely be "What happened on the last day you were employed?" "What exactly did your employer say was the reason you were being terminated?" "Had you had any warnings?" (Of course at this time you will be very honest and tell them you did receive the written warning. Be sure to say that when you got this, you promised to improve your performance and that you tried to do this TO YOUR UTMOST.) They usually ask something like, 'Did you know your job was in jeopardy?" Of course you would answer this affirmatively, but stress also that you were trying your very hardest and that you always did the job to the best of your abilities.

See it's not so much whether the employer fights it or not, its whether there has been a pattern of progressive discipline for misconduct by the employer to the employee, that the claimant was aware that they were in danger of being fired for the misconduct they are being warned about (see why "performance" is such a tough one to convict on?) that they had control of the behavior (unlike, say, being absent because you were very ill with medical statements) and that, knowing they were in danger of being terminated, they continued to do the misconduct behavior, chosing to be fired rather than change or do differently.

The employment system looks at it that you can't help not being talented enough to produce the performance demanded. Not catching on quick enough is not misconduct. Not being fast enough to make production isn't misconduct. Not being able to sell seventy vacuum cleaners a month isn't misconduct. You gave them no false impressions of your abilities (even though doing this isn't considered misconduct, either. The unemployment system looks at it as that they should've checked your references to see if you could do what you claimed you could do. ) You made a good faith effort to learn to do what they wanted you to do. You did not, at any time, just give up and stop trying. DO NOT admit to anything like this.

Don't mention what your boss said, except that he said you were being fired for performance issues. You don't have to say that he said you committed "borderline insubordination." That's his opinion. You don't tell them that he said he "wouldn't fight" your receiving unemployment. As I said, that's irrelevant. It's not his to say. The less you talk, except to answer the questions, the better. Be positive, professional and get to the point. That's probably where women tend to make a mistake, because they tend much more than men most of the time to give too much information, not stick to the point.

Good luck with this, try not to stress, and let us know how it all works out.

Commentator, thank you for all your advice.