UC Hearing: Employer contending separation. Falsely claims I lied on resume

[ShadowBurnXYZ]

What is the name of your state (only U.S. law)? Reside in Georgia, most recent employer was in GA, but benefits were filed in PA

Hello everyone and thank you in advance for your advice.

I relocated to Georgia for a job offer after 5 years with my employer in PA. I started working for a small company down from a huge corporation, but was later fired as they had unrealistic ideas of how fast I could produce a company wide database with data handling software and GUI. I was the only individual working on it, and as with all software development I had some very puzzling bugs to troubleshoot that cost time on the schedule.

I was given a letter of termination memo on company letterhead on the day of my termination. In the letterhead they stated that they were terminating me for lack of performance on my assigned projects. They went on to state that they found my skills "grossly overstated on my resume". I received a DOL-800 in accordance with the Georgia Employment Security law, OCGA 34-8-190(c). It was signed and dated by the owner of the company for 3 days after my termination date, and the reasoning provided simply stated "lack of performance" and nothing more.

Since I lived in PA and only worked in Georgia for 2 months in 2016, the DoL of Georgia and PA advised me to file my unemployment claim in PA. I gave my initial application based on the letter of termination. However, upon recieving my DOL-800 in the mail (We don't have this in PA) I called the UC office to inform them I was discharged for lack of performance. They took some statements from me and said they were going to contact my former employer to collect their side of the story. I was told I would receive a return call within 30 minutes to 5 days. After 5 days I called the office. I was then told that they were unable to reach my former employer and decided to finish the processing of my claim with my testimony only. I was awarded 26 weeks at the maximum compensation for my previous wages earned, and have filed my biweekly claims, performed my work searches, and applied to jobs each week since the time I filed my application to ensure I am in compliance with the law.

My determination of separation was found to be for "lack of performance" according to the PA UC office. My former employer has filed a petition of appeal on the last day possible to contend the reason for my separation. They submitted the MEMO of termination provided to me on my last day with their petition, and filled the reason for disagreeing with the determination as "per the attached memo T was not qualified to perform the task he was hired to do. T misrepresented himself and the work he had performed on his resume"

I have the original DOL-800 sent to me by the company that simply states that I was discharged for "lack of performance". No additional details or reasoning is given beyond this. I worked the best I possibly could with the references I had and the time I was given. They sent one email communication stating my job was in jeopardy. Later that week I was removed from my project and reassigned to a new project. I began work on that project on a Friday. Upon returning Monday, I completed the first part, went to a scheduled training mandated by the company from Tuesday through Thursday, and was released on Friday at 10am. Up until this first formal communication and after the communication was sent, I made sure to perform my duties to the best and fullest of my ability up until the time of my release. There were some in-passing comments that we needed to get the program updated from the live version, but no formal discussion had taken place about my performance. The company generated no formal documentation of these discussions either. The only formal written communication I recieved was the email stating I was under close watch and there was no room for errors. Usually you sign something, but these guys are so small (10 people) they don't have an HR, and I didn't sign anything acknowledging a verbal pushes or the email. I didn't even sign an intellectual property agreement when I started, nor was I directed to an employee handbook / company policies. I simply filled out my W2 stuff, my healthcare form, and that was it. I hadn't signed a single thing after that or provided any additional information about the company's rules / processes.

I have never had to go through an appeals hearing before, and I never lied about any of the work I performed on my resume. Everything on my resume is true to the fullest possible extent, and I do have people I can call that I can ask to testify on my behalf if necessary(their availability is another question altogether).

I want to know what I can do to make the best case possible for myself to ensure that I continue to have my UC benefits until I find another job. I have no family here or anyone to rely upon,and I cannot afford to relocate back to PA, so my benefits are all I have to keep a roof over my head until I find a new job. I'm worried and I really want to be prepared to the fullest extent possible to ensure my benefits continue. When questioned, how should I build my case? What should I know to be properly prepared for this hearing? Does my employer have a leg to stand on since their memo contradicts the DOL-800 that's required under OCGA 34-8-190(c)? I'm not sure if it matters but the memo is signed by the vice president, but the DOL-800 sent in the mail after is signed / dated by the owner. It appears that someone has filed the appeal on my employer's behalf (perhaps an attorney?). If there is anything more I need to add, or additional questions please ask.

 

[quincy]

Thanks, ShadowBurnXYZ.

Watch for commentator to post.

 

[ShadowBurnXYZ]

Thanks, ShadowBurnXYZ.

Watch for commentator to post.

thanks for sending me in the proper direction.

 

[quincy]

Not a problem.

While you wait for additional information to be provided here, following is a link to the Pennsylvania Department of Labor and Industry's "Appeal Information FAQs" which answers some of your questions:

http://www.uc.pa.gov/appeals/Pages/Appeal-Information-FAQs.aspx#.VxM3oprD9ok

Good luck.

 

[commentator]

All you know and all you need to know is that you have firm ground to stand on. As you said here, "I made sure to perform my duties to the best and fullest of my ability up until the time of my release." And then of course there is your statement that everything that is on your resume is true and can be verified if necessary.

And then, of course, you can lightly touch on what sort of warnings or indications you might have had that you were not performing up to par, and what you did, if such warning were received, to improve your performance.

In other words, the only way that you can be fired for good cause poor performance is if you (1)had the capability of performing the job in the first place, and had been successfully performing the job and (2) suddenly decided for reasons of your own to stop performing the job adequately (like maybe decided to sabotage the work, or take naps under your desk instead of doing the work) and (3) were adequately informed by the company that your performance was NOT up to par and you deliberately, definitely decided not to change your performance and keep your job.

Companies can ask you to do anything, including "spin straw into gold." But if the task was such that your best efforts could not accomplish it, this was not and will not be considered a valid misconduct reason for discharge.

If you had lied on your resume and did not have the skills that you had indicated to them that you had, the response of the unemployment office would have be that the company should have checked your references more thoroughly before hiring you. It happens all the time. People apply, saying they can, for example, operate a backhoe. They are hired, and it turns out they don't even know how to start the backhoe. Response -- you people should've checked his references to make sure he could do what he says he could do. It is not found against the applicant, who may actually have falsified/embroidered/embellished his resume a bit, (no surprise!) it is found a bad hire by a company which should've checked him/her out more thoroughly.

When you are in the hearing situation, which will be adjudicated by the interstate adjudication unit, doubtless by telephone conference call, you will be given a chance to state your case, and if you do so as well and professionally and concisely as you have done here, you'll be fine, IMHO. Just be sure to work in as often as possible that you did your work to the very best of your abilities.

Do not be surprised if the company representative lies or makes false statements. If they present or try to present false warnings that you are supposed to have received, even signed by you (I've seen this happen) you simply wait till it is your turn to speak, and clearly and quietly say, "I was never given this warning, I have never seen these documents before. This is not my signature. This did not happen.") In an unemployment hearing there is always the assumption that either or both parties may be lying. The hearing officer will attempt to decide who is "most believable." It is not unexpected, not something that you can sue them about, and especially not something you should get angry about. Be polite, listen carefully to the questions you are asked, be professional, brief and to the point.

They have a right to appeal any initial decision, which they have decided to do, and may actually appeal again after this hearing (as you would have the right to do so if it is found against you.) But it sounds as though you had a strong case for approval initially, you were approved, and it is unlikely from what I am hearing that they will get the decision overturned. Good luck to you, let us know how it turns out.

 

[cbg]

the only way that you can be fired for good cause poor performance is if you (1)had the capability of performing the job in the first place, and had been successfully performing the job and (2) suddenly decided for reasons of your own to stop performing the job adequately (like maybe decided to sabotage the work, or take naps under your desk instead of doing the work) and (3) were adequately informed by the company that your performance was NOT up to par and you deliberately, definitely decided not to change your performance and keep your job.

I just want to clarify something here. You can be fired for any reason not expressly prohibited by law. You can be fired because you had a banana on your desk (yes, I really was asked that question on another forum many years ago). You can be fired because you did, or did not, wear green socks to work. You can be fired because you cheer for the Yankees and your boss is a Red Sox fan. And all of those terminations will be legal.

So you can be fired for poor performance without any of commentator's qualifiers being present. It's just that unless at least one of her qualifiers is present, you will likely qualify for unemployment. You will still have been legally fired.

 

[Chyvan]

only worked in Georgia for 2 months in 2016,

While it is this employer's right to fight your UI, it's unbelievable that they are even trying. With only 2 months work, it's unlikely that they are even on the hook for a nickel of your UI benefits. They are doing work that will result in no monetary gain.

 

[commentator]

The average employer knows as little about unemployment benefits and how the whole U.C. system works as the average employee. And do not forget, this is Georgia, which is one of the third world states in the Southeast.

In working with employers, it was not at all uncommon for us to find people who had actually started up businesses totally without being aware of the reality of unemployment benefits, period, for their employees. Educating them was an important part of our job, and in my personal experience, for the most part, employers were twice as stubborn, hard to deal with, and aggravating as claimants.

Everything cbg said was right on, as far as "at will" employment is concerned. My answers deal only with the reality of an unemployment hearing, not the reality of the private sector workplace, where having a banana on the desk is truly a firing offense.

Many employers believe they should have the God given right to hire and fire at will and treat and pay their employees according to their own whims, and if the employees weren't okay with it, they wanted the right to totally end a worker's income, and their very survival if possible. I wish I had a nickel for every time I had that verse in Thessalonians quoted to me, you know the one about if anyone will not work let them not eat......

So even if there is not the remotest chance that this person being approved to draw will affect their unemployment tax rate, even if they are going to get no even minimal charges to their account unless a couple of years from now this person is unemployed and files a claim again, you can't explain it to them. Letting someone draw after they are fired feels wrong to them. They'll fight every claim. They don't make reasonable decisions to expend the time and effort based on knowledge about unemployment law and the likelihood of this person being approved.

And many businesses hire consulting firms which advertise that they will save the employer thousands and thousands by working the unemployment system and stopping people from drawing benefits that are charged to their accounts. And those firms have one trick that they do, and that is to appeal EVERYTHING. Regardless of whether it is worth their time, it is a minimal charge, or it is a total slam dunk laid off for lack of work claim. They bombard the system with paperwork appealing everything and I do mean everything.

So no surprise they are appealing. After all, if things were as they should be, this claimant would have been working for them for less money, or for free, and he'd have been spinning straw into gold for them. And now that he has filed, even though all the wages come from Pennsylvania employers, they find it their duty to fight against the claimant and the bad evil government that wants to take THEIR hard earned tax money and pay it to deadbeats who can't do the impossible for them.

They also tend to think "performance issues" is the huge general absolute best reason to fire someone, and they have a hard time understanding, even after much experience that the unemployment system doesn't see it this way. So thusfar, they frequently lose.

But I am afraid that we are very much in the process of dismantling the unemployment system in this country. Already many southeastern states have cut the number of weeks in a claim dramatically just because they can.

Okay, this is the end of my pre breakfast rant!!