misconduct and unemployment insurance

Factual Questions
1

I told my friend to go consult a lawyer, but I thought I check in what you guys thought. I was searching the net, and while I think I have a black belt in google-fu, I couldn’t find a straight answer. I’m not looking for legal advice, just some sounding board to throw out some ideas.

My friend was fired from a job for misconduct (blogging, if anyone wants to know). I read his employee handbook, and among other things, it says that posting to message boards, outside e-mail, porn, and the other usual suspects, are not to be tolerated. I couldn’t get over the posting to message boards and outside e-mail thing (outside e-mail servers, like Yahoo). The employee handbook says that such misconduct can lead to termination, but there is no procedure listed in deciding termination.

Anyway, he opens myspace and yahoo mail, and for about three weeks, everything is fine. Then, he gets am e-mail warning from the system saying that his direct supervisor, a non-manager, is being alerted that he violated company policy. The e-mail says that this is a warning, and this is not to happen again. Then, later that week, his supervisor says that she is very disappointed in my friend’s conduct, and says that this will be the last warning. Then her boss, the actual manager, expresses disappointment (but not as bad as the supervisor), and says “Let this be a warning. Those sites can cause damage to our systems…” (then other things he alluded to about worms and viruses.)

My friend takes this warning to heart. He does not, I repeat, does not violate policy again. He rarely opens his internet browser. A week later, he’s fired. He’s in Illinois, which is an at-will state, so he doesn’t contest the firing. He applies for unemployment insurance, and he is denied for misconduct. I found the statute for misconduct, but this was a one-time event. He was warned and allowed to go back to work. Can he still be denied unemployment insurance? Thanks for looking!

2

IANAL, but here in NJ it is my observation that he would not be eligible for unemployment. Being let go “for cause” (as opposed to one’s job being eliminated) makes one ineligible. The employer really didn’t have to give the warning, unless there is a union contract involved that says something to the contrary. He did something that was against the rules, and the rules were clear and available to him.

He could appeal the firing, but it’s not likely IMHO that he’d win. And yes, advice from a real lawyer, specializing in labor law, would be a good thing. There might be a loophole.

The rule you mentioned, about no message boards or outside email, is very common. It’s too much hassle for a company to decide which ones are o.k. and which ones are not. Or whether the employee is using them on his own time (lunch, before or after work) or is spending time on such things when he’s supposed to be working. It’s the company’s computer, power supply, network, etc., and they certainly have a right and obligation to control their use.

3

Unemployment is extremely variable, especially from state to state. It is definitely not unheard of for someone to get unemployment only after appealing. The success of that seems to have as much to do with the state and even the temperament of the decision maker as it does with the grounds for appeal. As an HR person I don’t think your friend has an especially strong case that he lost his job “through no fault of his own.” The intent of unemployment is much more for a case like “We lost our biggest account so we need to let half of you go” than it is for a case like his.

4

There is no penalty for applying, the worst that can happen is it will be denied. What an employer considers cause, and what the state UI consider cause can be very different.

Unemployment insurance is a pain in the ass, but it is green, and can be used to pay some of the bills.

5

I agree with the state to state variables. I am an employer in Florida. I rarely fire anyone but when I do, it is for cause. Not one has been denied unemployment. Some examples for your amazement:

  1. Ex Employee Number one phoned me from jail stating she has been arrested for trying to run over her live in boyfriend with her car and would be out of work for several months or more. I replaced her. She won her claim.

  2. After three warmings, another employee is fired for being short on her cash receipts four times for totals well over two hundred dollars. Initially denied, appealed, she won for not enough proof of misconduct. (???!!!)

  3. Ex Employee number 3 was fired after I received notification from unemployment that she was collecting from her last job while working for me and lying about her employment status. I terminated her for this dishonesty.
    Yup, she was permitted to collect more unemployment.

  4. Last for now. Employee number 4 quit. Q.U.I.T. She applied for unemployment stating the “stress” of her job was making her ill and it was impossible to continue working for the company. She collected for an entire year.

As far as your friends situation, my advice would be to appeal. It seemed to have worked for everyone I ever fired and I had a lot more cause than your friend’s employers.

6

IANAL but I’d definitely say it’s worth an appeal as you describe it: he was told not to continue the internet stuff, but was not immediately terminated. He stopped doing the off-limits stuff… but was fired a week later anyway. They should have terminated him immediately, not told him to stop and then changed their minds.

He may or may not succeed but it’s worth a try.

7

Thanks Mama Zappa, and everyone else. After about 4 hrs of searching, I limited my search patterns to “warned then fired anyway” (or patterns similar), and I couldn’t find anything. All the firings or discharges were after being warned, and the violation continued, sometimes, repeatedly! I just didn’t want to give my friend bad advice (I hate giving advice in general), and I guess I just wanted to see a consensus of the strategy of appealing.

8

In Michigan you can contest the determination. The decision is then made by a MESC referee. The claim includes the previous record of claim protests and problems. Generally it is accepted.