Career Questions and Answers
Unemployment file 4 second appeal?
Asked by lonely planet
worked as delivery truck driver with this company for 9.5 years and I was a good employee. one day after driving for 2 hrs I had to use a restroom so bad and I couldn't wait I urinated in sealed bottle water I had, later I forgot it in truck and was found buy someone so they gave me last and final warning. week later they found another bottle in my truck I told them it wasn't mine but they didn't believe me .the trucks are driven by different drivers everyday . they told me they might do a test at the clinic I said ok . but they never did and fired me . I filed for unemployment and they denied me I filed for an appeal and still denied me I am filling for a second appeal in writing . would like some help on what should I write . this is my last chance I have 20 days left . Thanks
Asked by lonely planet
worked as delivery truck driver with this company for 9.5 years and I was a good employee. one day after driving for 2 hrs I had to use a restroom so bad and I couldn't wait I urinated in sealed bottle water I had, later I forgot it in truck and was found buy someone so they gave me last and final warning. week later they found another bottle in my truck I told them it wasn't mine but they didn't believe me .the trucks are driven by different drivers everyday . they told me they might do a test at the clinic I said ok . but they never did and fired me . I filed for unemployment and they denied me I filed for an appeal and still denied me I am filling for a second appeal in writing . would like some help on what should I write . this is my last chance I have 20 days left . Thanks
A:
Best Answer:
(If permitted, go in person.) Good morning. My name is Dan Smith. I'm the claimant in this matter. I was hired by Company X on January 1, 1998 as a delivery truck driver. I was fired on __ after aCoke bottle was found in a truck that I had been assigned the day before. I have been told that the bottle contained urine. I have been fired and denied unemployment benefits because my employer believed that it was my urine. I'm here today to ask you to overturn the decision denying my application for unemployment benefits. There are at least three reasons to do so: (1) Relieving oneself in a manner that is discrete and sanitary is not misconduct; (2) Forgetting to remove the evidence of having relieved onself (sort of like forgetting to flush), is not misconduct; and (3) Whether or not any of this is misconduct, I didn't do it. As I explained in the hearing on [date], the week before I was fired, I had a bit of an emergency that I resolved by urinating in a water bottle. This may sound a little unusual, but the truth is that truck drivers do not always have readily available restroom facilities. OSHA requires that no one wait unnecessarily to have access to a restroom, and I couldn't wait and I didn't. Unfortunately, on this occasion, I slipped the bottle behind the seat and didn't think of it again until it had already been found by Driver Tom Jones. Rather than just throw the bottle out, Mr. Jones--or someone else--examined it, determined that it contained my urine, and--after 9.5 years of successful service to this company--I was given a final written warning threatening my termination. Then, the Coke bottle appearing to contain urine was found the next week. Again, the bottle was not just tossed but was examined to determine its contents and a culprit was sought. Apparently it was thought to contain urine, Company X decided that it belonged to me and fired me. I'm at a bit of a disadvntage trying to defend myself against this charge, because I did not do it. With DNA technology being what it is today, there is no reason we should have to be guessing at who did this, but we are, and unfortunately for me, the guess is both wrong and the cause of my present unemployment. However, lets say this were a different case and somebody did twice urinate in a bottle. Nobody should ever be denied unemployment benefits for relieving themselves. That is exactly what this is. Delivery drivers do not have bathrooms down the hall. We go when we can, where we can. No one has alleged that the person who left the coke bottle in the truck improperly exposed himself or did anything observably improper or unsanitary. No one has alleged that I exposed myself or did anything observably improper or unsanitary when I relieved myself into a water bottle the week before. What I did do, and what I was written up for, was little more than going to the bathroom and forgetting to flush. Forgetting to flush is tacky. It's not how my mother raised me or what I normally do. I personally don't see it as a firing offense, but my employer did. I guess that's their perogative. But this is not about whether I should have been fired, this is about whether my conduct was so egregious that I should be denied a small unemployment benefit to help me get by until I'm next able to find work. It's my understanding that unemployment benefits should only be denied for significant misconduct. My employer has the burden of proving that I was guilty of that misconduct. The only misconduct of which I have been accused is relieving myself in a manner my employer apparently found distasteful, and inadvertantly leaving behind the evidence. I submit to you that relieving oneself privately without soiling anything is not misconduct. I further submit to you that accidentally leaving behind a bottle of urine (sort of like forgetting to flush)--however distasteful, is not misconduct. And finally, I submit to you that my employer has not made anywhere near a conclusive showing that it was I, and not some other driver who couldn't find a restroom and keep up with his delivery schedule, who left behind that second bottle. Seeing what happened to me, do you really think whoever that other driver is is going to raise his hand and volunteer that its his pee? Of course not. He saw what happened to me. His job is in jeopardy. Sir, please let this employer know that it cannot fire someone for something as basic as going to the bathroom and expect to deprive them of unemployment compensation. I appreciate your time. [If the employer argues that there were other places to have gone to the bathroom, respond something like this, "I can't speak for the fellow who peed in the Coke bottle, but when I peed in the water bottle the week before I was fired, I assure you there was no where easily accessible. And even if I could have gone somewhere 45 minutes earlier, poor restroom planning is hardly the same thing as misconduct.] Hopefully, most of the stuff is in the record. CatLaw is right that you are technically not allowed to introduce new testimony at this point. However, I would not hesitate to add in a small amount of stuff that may not have made it into the original hearing. Not every appeals examiner is going to be a stickler for holding you to whats in the record below. I've seen them actually question witnesses, while opposing counsel sat there helpless. You just never know. And since you don't seem to be represented, the appeals folks may be indulgent. Nonetheless, look into the possibility of getting an attorney. If you had done that a the original appeals proceding, you might not be in this situation at the moment. If you have not already requested a copy of the transcript from the hearing below, do so and read it carefully so that you can refer the appeals examiner (or whatever his proper title is--you'll want to have that correct) to particular pages that may have relevance.
(If permitted, go in person.) Good morning. My name is Dan Smith. I'm the claimant in this matter. I was hired by Company X on January 1, 1998 as a delivery truck driver. I was fired on __ after aCoke bottle was found in a truck that I had been assigned the day before. I have been told that the bottle contained urine. I have been fired and denied unemployment benefits because my employer believed that it was my urine. I'm here today to ask you to overturn the decision denying my application for unemployment benefits. There are at least three reasons to do so: (1) Relieving oneself in a manner that is discrete and sanitary is not misconduct; (2) Forgetting to remove the evidence of having relieved onself (sort of like forgetting to flush), is not misconduct; and (3) Whether or not any of this is misconduct, I didn't do it. As I explained in the hearing on [date], the week before I was fired, I had a bit of an emergency that I resolved by urinating in a water bottle. This may sound a little unusual, but the truth is that truck drivers do not always have readily available restroom facilities. OSHA requires that no one wait unnecessarily to have access to a restroom, and I couldn't wait and I didn't. Unfortunately, on this occasion, I slipped the bottle behind the seat and didn't think of it again until it had already been found by Driver Tom Jones. Rather than just throw the bottle out, Mr. Jones--or someone else--examined it, determined that it contained my urine, and--after 9.5 years of successful service to this company--I was given a final written warning threatening my termination. Then, the Coke bottle appearing to contain urine was found the next week. Again, the bottle was not just tossed but was examined to determine its contents and a culprit was sought. Apparently it was thought to contain urine, Company X decided that it belonged to me and fired me. I'm at a bit of a disadvntage trying to defend myself against this charge, because I did not do it. With DNA technology being what it is today, there is no reason we should have to be guessing at who did this, but we are, and unfortunately for me, the guess is both wrong and the cause of my present unemployment. However, lets say this were a different case and somebody did twice urinate in a bottle. Nobody should ever be denied unemployment benefits for relieving themselves. That is exactly what this is. Delivery drivers do not have bathrooms down the hall. We go when we can, where we can. No one has alleged that the person who left the coke bottle in the truck improperly exposed himself or did anything observably improper or unsanitary. No one has alleged that I exposed myself or did anything observably improper or unsanitary when I relieved myself into a water bottle the week before. What I did do, and what I was written up for, was little more than going to the bathroom and forgetting to flush. Forgetting to flush is tacky. It's not how my mother raised me or what I normally do. I personally don't see it as a firing offense, but my employer did. I guess that's their perogative. But this is not about whether I should have been fired, this is about whether my conduct was so egregious that I should be denied a small unemployment benefit to help me get by until I'm next able to find work. It's my understanding that unemployment benefits should only be denied for significant misconduct. My employer has the burden of proving that I was guilty of that misconduct. The only misconduct of which I have been accused is relieving myself in a manner my employer apparently found distasteful, and inadvertantly leaving behind the evidence. I submit to you that relieving oneself privately without soiling anything is not misconduct. I further submit to you that accidentally leaving behind a bottle of urine (sort of like forgetting to flush)--however distasteful, is not misconduct. And finally, I submit to you that my employer has not made anywhere near a conclusive showing that it was I, and not some other driver who couldn't find a restroom and keep up with his delivery schedule, who left behind that second bottle. Seeing what happened to me, do you really think whoever that other driver is is going to raise his hand and volunteer that its his pee? Of course not. He saw what happened to me. His job is in jeopardy. Sir, please let this employer know that it cannot fire someone for something as basic as going to the bathroom and expect to deprive them of unemployment compensation. I appreciate your time. [If the employer argues that there were other places to have gone to the bathroom, respond something like this, "I can't speak for the fellow who peed in the Coke bottle, but when I peed in the water bottle the week before I was fired, I assure you there was no where easily accessible. And even if I could have gone somewhere 45 minutes earlier, poor restroom planning is hardly the same thing as misconduct.] Hopefully, most of the stuff is in the record. CatLaw is right that you are technically not allowed to introduce new testimony at this point. However, I would not hesitate to add in a small amount of stuff that may not have made it into the original hearing. Not every appeals examiner is going to be a stickler for holding you to whats in the record below. I've seen them actually question witnesses, while opposing counsel sat there helpless. You just never know. And since you don't seem to be represented, the appeals folks may be indulgent. Nonetheless, look into the possibility of getting an attorney. If you had done that a the original appeals proceding, you might not be in this situation at the moment. If you have not already requested a copy of the transcript from the hearing below, do so and read it carefully so that you can refer the appeals examiner (or whatever his proper title is--you'll want to have that correct) to particular pages that may have relevance.
A:
With CDL drivers in demand, I would spend more energy in looking for aother position than trying to collect UB, it is possible that you may win but the odds are against you
Answered by rwa000
Answered by rwa000
A:
Unfortunately if you have gotten past the appeal in front of a hearing officer/administrative law judge/referee you have little or zero chance of winning. In almost every state the appeal hearing that is run by the judge is really the ONLY place where you are able to make your case. That hearing is where you/your attorney can question the other side, enter evidence into the record, and make proper legal arguments. The legal argument that you/your attorney made at the appeal hearing and the evidence that you submitted CANNOT be added to in any additional writing.
The majority of states allow you/your attorney to write a legal brief to a governing board who review decisions of the judge in the appeal hearing. Again you cannot add evidence or new legal theories to what you/your attorney presented at the appeal hearing. In most states, the boards prefer a legal brief, that is one that cites precedent cases that agree with the legal arguments you/your attorney presented and that shows how your case fits in the current statutes.
If you had an attorney representing you, that is the person who needs to write the brief. It sounds like you did not have legal advice and Yes, the clerks at the unemployment office told you that you did not need an attorney. But they were mistaken. They are not aware of how the laws have become more complex and how the employer's now hire their own attorneys to fight every unemployment claim.
Answered by CatLaw
Answered by CatLaw
A:
That's gross misconduct and you are unlikely to win a 2nd appeal. Put your energy into finding a new job.
-HR Girl
Answered by Nicole R
Answered by Nicole R
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