Need to appeal Unemployment determination

[Mark A.]

What is the name of your state (only U.S. law)? PA

I was terminated from my employment 5 weeks ago. I filed for Unemployment 4 1/2 weeks ago and after all that wait, got the denial letter today. It said I violated a company rule concerning confidentiality. A client lodged a complaint against me for violating a client's confidentiality (a client who had left the group I ran a few days earlier). What I did was use poor judgment and referenced that client as an example of how not to handle something. What I referenced was something the client had already shared in group with the same group members. I did not give any private information about her that was not known by the group.

There were 3 women in the group and 2 of the women gave me written statements saying I did not violate this client's confidentiality. They both also complained to HR about the wrongfulness of my being let go...of course, it went nowhere. They have both said they would help me going forward.

As I have been denied unemployment (by the way, neither my former company or the Unemployment Claims Examiner interviewed these two group members. In fact, my former company's HR Dept didn't even speak to me about the matter...they chose to cover their butts and believe the client's complaint and fire me), do I need a lawyer for my appeal? I'm sending out the Appeal info today. Also, would I need these two witnesses at the Appeal Hearing or would their statements "Notarized" be enough? And, what would you say my chances of victory are? Thanks. I really need the unemployment income...at least for a little while. I financially qualify-knew that 4 weeks ago.

 

[commentator]

First of all, keep applying for weekly benefits. We assume you have been doing this while waiting for the decision anyway, but keep doing it as you have been, until the appeals hearing is held.

What you do is immediately request to appeal the decision. I suggest an "in person" hearing. I am not convinced that based on what you are saying here, it would help you very much to have both these two co workers subpoenaed to appear in your hearing, though you can do that.
Notarized statements from these persons would not be helpful at all.

I am not sure what they might show, other than that you did not, in their opinion, violate privacy policies. I can see where the using of a person's situation as an example, her having already shared information with the group (was she present or not present during this exchange?) might have been very poorly received, and it might very well have caused other group members to refrain from sharing in the future, since they would possibly not want to be subjected to being used as a bad example, as you said yes, it was quite poor judgment. But what these other group members think about the appropriateness of your having been terminated isn't really important in the hearing.

If you had had no prior warnings about this issue, then they must be saying that you violated a policy that you were aware of and that you knew might lead directly to your termination, and yet you chose to do it anyway. Your defense would be either that you were not aware of the way the policy was going to be interpreted, that you were unaware of the policy (which probably is in a handbook or in something you signed at the time you came on board) or that you did not say or do anything that violated the person's confidentiality.

Quote: by the way, neither my former company or the Unemployment Claims Examiner interviewed these two group members. In fact, my former company's HR Dept didn't even speak to me about the matter...they chose to cover their butts and believe the client's complaint and fire me),

All the two clients could do is express their opinion about whether or not you violated the other person's confidentiality. The employer is in no way obligated to listen to what they have to say before terminating you in your "at will" state. The employer is the one who gets to make this call, they are not "covering their asses" per se, they are just chosing to terminate you "at will." The unemployment system will decide if they had a valid, misconduct reason to terminate you. The burden of proof is upon the employer to show that you were aware of the policies and that you deliberately chose to violate them, rising to the level of gross misconduct, something you knew was bad enough to get you fired, even if you did it only that one time and had had no prior warnings.

The unemployment adjudicator wasn't particularly interested in these two people's opinions either. They probably asked you, and then asked the employer what was said, or what the employer was told had been said in the complaint. It was either said, or not said, opinions about whether what was said violated the person's privacy by other members of the group are not relevant.

Unemployment hearings are set up so that an attorney probably wouldn't be a great deal of help for you. They are designed so that most people will be able to self represent, so the expense of hiring an attorney, who probably would not be much more able than you to answer questions and present your argument that you did not commit misconduct worthy of termination, that the employer did not have a valid, misconduct reason to terminate you is not likely to be worth it. Unemployment insurance is just not that much money, and what an attorney could do isn't really going to be significant compared to what you can do yourself, which is just answer the relevant questions and defend the concept that you did not knowingly violate the company's privacy policy, that you had had no previous occasions where this had been an issue, that you did not intend to violate the policy and that what you did did not violate the policy.

Unemployment is not needs based. In other words, nobody cares how poor you are or how badly you need to be approved. It is set up on a very strict system of approval and denial based upon whether or not your conduct met the definition of misconduct such that your employer had a valid reason to terminate you.

File the appeal promptly and within the time limit to do so. Just submit a statement that you "wish to appeal the decision." DO NOT attempt to make any arguments or submit any material in the request for an appeal.

Then before the hearing, familiarize yourself with the definition of misconduct, read over the decision and review the circumstances, and then when the hearing comes, you should be able to present your case yourself. And keep filing the weekly certifications for benefits. If your appeal is granted, you'd be back paid for each week since you began filing that you have filed for appropriately.

 

[Mark A.]

Thank you for your time. What happened was a client(client A) had left my group a couple of days prior. After the group session, a client brought up the manner in which client A left the group. In no malicious or harsh manner...I referenced that client as an example of what not to do in terms of self-care. We were talking about assertive communication and I used that client as an example of how people are their own worst enemy. I very briefly referenced her background of going from one therapist to another therapist...always looking for that perfect situation. What I referenced was information Client A had ALREADY shared with the SAME small group of people. No new or private information was referenced.

While referencing a client who left the group was not the best judgment, is that grounds for termination?...because one of the three clients went to HR?

A year prior to this, I was suspended for two days because I mistakenly contacted a client's therapist without a written release. Over 95%of the time, clients would sign the release during the Intake process. This client did not. I simply left a voicemail message for her individual therapist as to how she did in group. I made a mistake in not checking to see if I had a release signed. There was no ill intent. This client, who has a history of filing lawsuits against professionals, called HR after she found out from her therapist that I had left a summary voicemail pertaining to her treatment. HR suspended me for 2 days...not a written warning or a verbal reprimand...a 2 day suspension. I had no issues for a year until this happened.

Your response leads me to believe I won't win my appeal...even though I did NOT share private, confidential information about Client A to the group...simply referenced what she herself had stated to group. It's like I could do 99.5% of things well and one poor use of judgment...with no malicious or slanderous intent...and I'm gone. The company has been letting others go as well. I'm hardly the first.

 

[cbg]

There are two different issues implied by your question. A - was this a legal termination and B - can I get unemployment.

B is better estimated by commentator. Only the UI office has any vote that counts, but she is much better than any other poster here at helping you maximize your chances.

In terms of A, though, your employer does not need "grounds" to terminate you. 49 out of 50 states are at-will states and the 50th, which is not yours, recognizes the at-will doctrine in some situations. An employer may legally term you for any reason not expressly prohibited by law, just as you can quit at any time and for any reason. You do not have to have actually violated confidentiality (I am making no judgement as to whether you did or not); it's enough that your employer believes you did. WHY the employer believes you did is immaterial. It is also quite legal to term you for "using poor judgement". Which by your own words you did.

This is entirely separate from whether or not it is enough to block unemployment.

 

[commentator]

It is always worth your time to go on and file the appeal, and keep making the weekly certifications for benefits. There is always a chance that you will be approved, and it costs nothing to do the appeals process but a little of your time. I was trying very hard to get you to move your mind from your indignation at the company and the unemployment system not wanting to interview the two other group members to exactly what the hearing will focus on.

I think that you might have a winnable case if the company isn't too terribly sharp about how they present their PROOF, since they do have the burden of proof in this situation, that while in conversation with three members of the group, you willfully, knowingly, and with malicious intent violated the confidentiality of a client who was not even present.

This seems to be based upon the opinion and reporting of one person in a group of three that you made a comment to, after the group meeting was over. She went to your employers and told them you had violated this person's confidentiality, though the other two people in the group did not perceive it this way and were very surprised that you had been terminated for your chance remarks. It sounds as though this person may have had some sort of vendetta, or intention of getting you terminated.

It also sounds like the company may have been looking for a reason to terminate people, as letting them go due to lack of work would result in automatic payment of unemployment benefits, so they might've jumped at an opportunity to terminate you.

What you have to show is that 1) you were familiar with the company's privacy policies and release of information guidelines. (2) you did nothing in this situation that would violate the formal policies in place for your agency. You had received no formal write ups or warnings that you were in danger of termination for possible violations of this policy.

What happened a year ago you should not even bring up. If the company brings it up, you should emphasize that these were two different issues, this happened over a year before, and there had been no further problems at all concerning this issue since your suspension way back on such and so date. They have to keep the issue concerned with the exact thing you did that resulted in your termination, they can't just throw in random other warnings or suspensions or issues you might have had and say this shows a pattern of misconduct.

They're trying to say that the violation of this person's confidentiality in a private conversation with three other group members, all of whom had heard everything you discussed before in group violated the person's confidentiality enough to rise to the level of misconduct so serious that you deserved to be fired for it, even for doing it one time. That you were aware of what an awful thing it would be to do (?) and that you did it deliberately to what? provide the others with information about the client? No they already had heard the information. You were using these comments in an attempt to edify your other group members about what you thought about the better way to handle a problem might be, unwisely using this person as an example maybe, but with no serious intentions to do her harm or violate her confidentiality. You were given no opportunity to explain yourself, no chance to correct anything wrong you might've done, and were summarily fired. be sure you throw in the mix that you always, always did your job to the best of your abilities, and that you did not want to lose your job.

I won't say your chances seem great, but neither will I say they are terrible, either. The unemployment system is not supposed to give any more weight to either parties' testimony, in other words, they are supposed to go with which party is more believable, realizing the stories may vary. The employer of course does not want you to be approved for benefits, because this costs them money, so they have that interest and intention. You, of course, wish to receive benefits to tide you over until you can find another job, since you lost your job through no fault of your own and were put out of work unexpectedly, without doing anything that you were expecting to cause you the loss of this position. You have some good points you can make in a hearing.

 

[Mark A.]

Thanks for your time. I sent in the appeal information yesterday. Any idea how long it takes to get the appeal hearing. I live outside of Philadelphia. Where would they have it? Would the company's HR Director come?

Also, I'm not sure where to find the information on the company's confidentiality guidelines. Obviously, I signed it and I do remember reading it over carefully, but I can't remember all of what is in it. I'm just thinking about how to prepare for this appeal hearing.

 

[Chyvan]

Any idea how long it takes to get the appeal hearing.

PA is taking around 6 weeks for a hearing.

Where would they have it?

Don't know. Most hearings are held by phone.

Would the company's HR Director come?

Consider yourself lucky if that's what happens. However, chances are you already admitted to the bad act, so it doesn't much matter who the employer sends. In a case where you denied or didn't admit to doing anything, the employer is best served to send a first-hand witness that actually saw and or heard what you did and said. While UI hearings will allow hearsay evidence, it's given very little weight and that's exactly what the HR Director would be providing because that person wasn't in the room.

A witness needs to be under oath and subject to cross examination, and that's pretty difficult to do when the person that ratted on you isn't at your hearing, and why the HR Director testifying to what was told to them is weak.

Also, I'm not sure where to find the information on the companyy's confidentiality guidelines. Obviously, I signed it and I do remember reading it over carefully, but I can't remember all of what is in it.

You don't need the policy right now. If the employer doesn't submit it as evidence, then again, lucky you. Without the written policy, acknowledged by you, it's pretty hard to prove two of the 6 prongs in a "rules violation."

There was a rule
You knew the rule

However, you can do the employer's job for them by keep making admissions like you're doing when you say, "I remember reading it over carefully."

 

[commentator]

One of the very first questions the agency representative will ask during fact finding in this sort of situation is What was the company's policy on this? and Were you given a handbook or policy sheet concerning this? They'll also ask that same question of the employer. It doesn't matter whether or not the employer brings it up, it is basic 101 questioning in an unemployment decision for violation of a company policy. They're not trying to do the employer's work for him, but attempting to get to the heart of the issue.

If you were not aware of a policy which you were supposed to use in the day to day performance of your duties, you look pretty incompetent. If there is a policy somewhere that you have signed off on, whether you'd reviewed it the day before you are accused of violating it or not, you are expected reasonably to be aware of it and familiar with it. To say you were not when it is brought up (which I am pretty sure it is going to be) would not work in your favor.

I think that the claimant might do better with the assertion that what they did or said did not knowingly and deliberately violate the company's policy. Also, does the policy have any suggestions of discipline for violation of the company policy? Does it say that the violation of this policy can result in immediate termination? Did the employer follow their own guidelines in this termination? All this will be looked at by the agency, whether either of the parties brings it up or not.

 

[Mark A.]

C
You don't need the policy right now. If the employer doesn't submit it as evidence, then again, lucky you. Without the written policy, acknowledged by you, it's pretty hard to prove two of the 6 prongs in a "rules violation."

There was a rule
You knew the rule


I know it's not good "judgment" to reference a former client's situation. I don't know about any "rule". And, I did not disclose ANY private information about that client...nothing from the chart...nothing that she hadn't brought up in group herself to the SAME people. That's why 2 of the 3 group members completely disagree that I "violated" any confidentiality. This was a brief conversation that one of the 2 group members (supporting me) brought up. I simply referenced that client's situation as an example of what we had discussed...as she had just left the group that week. The ONLY reason the one client went to HR is because she's a very lonely person, has no friends and had aligned with that client in the previous 2 weeks from the group situation. They had become friends. And, the sad thing is that if the client who reported me had simply said..."Mark, I'm not comfortable referencing Mary in this discussion. She's already left group"....(even though nothing I said was malicious or said with ill intent)...I would have apologized to her immediately and said I'm sorry. She is a person who does this...reports people...files lawsuits...that's what she does.

So to say "I knew the rule"...I don't know of any RULE stating that referencing a client briefly (without ill intent) is grounds for termination. No, I didn't "know" any rule.

 

[commentator]

So as I said, you go with what you did or said did not violate any of the agency's privacy policies, which you did fully understand, since you had been working there in a professional capacity for xxx months and had not had any previous problems related to this issue.

Since you were there during the actual conversation, and your HR person who will likely be representing the company was not, you do have the believability advantage. Do not throw into the discussion that you think this person who turned you in is a lonely messed up troublemaker who likes to give others a ration of *&^% any time she gets a chance. Just go with the facts, presented professionally and briefly.

 

[Mark A.]

Found out my unemployment hearing is in two weeks. As said in my earlier post, I have two statements from people that were in my group who state that I did not violate the client's confidentiality. I'm requesting the former clients notarize the statements as I'm thinking they'd only matter to the hearing officer if they are notarized. Is that true?

Also, if these women get cold feet and not get the statements notarized for me, do I have any reason to bring up the fact that these women were adamant, as am I, that I did not violate confidentiality? I have their statements, but I don't know if they have any value apart from being notarized.

Finally, can the company go after me and say I've communicated with these clients after I was terminated? What other recourse did I have? They are the ones who witnessed the situation that was the subject of the complaint...which got me terminated. These women were not interviewed by the company and each of them say as much in their statements. If I'm fired, don't I have the right to reach out to the 2 clients who can serve as "witnesses"? I'm not treating them in any way. I'm simply using their support that they offered to give me, as they were upset in how and why I was let go.

 

[commentator]

I already told you what I think. You have got the opinion of two other people that you did not violate confidentiality. As I said, the employer does not have to accept their opinions before firing you and neither does the unemployment hearing officer have to accept their opinions. And with them, you and the employer and the unemployment system has undeniable proof that something happened. You did say something that got you complained against. It wasn't just the one complainer's fancy. But go for it, since you are determined. Be thinking about what other arguments or evidence that you did not violate the confidentiality regulations you can also make.

 

[cbg]

You understand that whether you did or did not violate confidentiality is completely irrelevant, right?

 

[Chyvan]

Found out my unemployment hearing is in two weeks. As said in my earlier post, I have two statements from people that were in my group who state that I did not violate the client's confidentiality. I'm requesting the former clients notarize the statements as I'm thinking they'd only matter to the hearing officer if they are notarized. Is that true?

Also, if these women get cold feet and not get the statements notarized for me, do I have any reason to bring up the fact that these women were adamant, as am I, that I did not violate confidentiality? I have their statements, but I don't know if they have any value apart from being notarized.

If the employer knows what they are doing, the papers whether notarized or not will be thrown out. It's hearsay. To count, your witnesses must be at the hearing and testify under oath and be subject to cross examination. Besides that, YOU are a first-hand witness, and I don't think your employer can bring anyone that trumps your testimony, so you don't need these other women.

Finally, can the company go after me and say I've communicated with these clients after I was terminated?

They can try, but it should be ignored. I call it being fired after you were fired. The employer calls you in and says, "we have to let you go, and things just aren't working out." Then the claimant lets loose with a barrage of 4-letter words. The claimant was already fired, and the worst that the outburst would have is that you never got hired back and got a bad reference, but it wasn't the cause of you losing your job.

 

[Mark A.]

I just got a call from the Hearing Office saying the company's attorney wants to reschedule the hearing.

It's obvious the company will bring an attorney to this hearing and I'm not sure I'm really up for all of this. Between the Unemployment Officer in Erie denying my claim and now this, it seems I have no chance probably. Also, the two women who were in my corner have stopped communicating with me. They had said they would get their statements notarized but did not and have not responded to me.

I got an email from the organization's attorney last week saying I'm not to have any further contact with any organizational employee or client...or they will pursue me on "harrassment" charges. In the last 6 weeks, I made one contact with my former supervisor via letter. Respectfully, but honestly, I shared with her of my discouragement in how she handled my matter, not having my back, etc. I was respectful but honest. It seems that prompted the letter from the attorney.

I think these two former clients of mine may have been contacted by this attorney saying not to have any contact with me. I think they are still current clients (getting their medication there). As I shared their statements with the Company CEO in my appeal letter, I think the company contacted them to say they cannot have communication with me.

My contact with them was not in any "treating" capacity, simply to use their "witness" for future help, as they were present and agreed I did not violate client confidentiality. But, I'm assuming now they've been contacted by the attorney and I'm getting weary wanting to even pursue this now. It has caused me enough depression and anguish and the last thing I need to is to be lambasted at a hearing like this. I don't trust this company in any manner and it seems they are intent on blocking my unemployment and causing me further grief. Thoughts?