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Learning, Sharing, and Teaching => Ask a Mustachian => Topic started by: PhillyWill on January 16, 2015, 09:39:20 AM

Title: SO fired, kind of.
Post by: PhillyWill on January 16, 2015, 09:39:20 AM
Hi Folks! I have a question about the burden of proof when dealing with a contested unemployment claim. Some background:
     My SO was fired from her job as a server at a trendy gastropub last November under somewhat spurious circumstances. The details might not be too important given the fluid and often shady nature of employment in Philly bars, but I'll be thorough for the sake of storytelling.
     When they hired her last spring (April, I believe) she told them up front that she would be taking three weeks the next November to visit her family in Israel, an annual trip. At the time they said it was fine. Just before leaving this fall she checked in and they said that while they couldn't guarantee as many shifts, they would still have work for her when she returned. The restaurant had hired an additional server by this point. All of this was verbal, I don't believe she has any of it in writing. Upon her return, they stated that they didn't have room in the schedule for her. She asked if she was fired (now in an email) and they didn't respond. She continued to hassle them for a straight answer and they never deviated from simply saying that they didn't have any shifts for her. So, she went on unemployment.
     The most important question here is: by applying for unemployment did she tacitly "quit"? She has already appealed the decision, but was denied. The restaurant's statement to the gov't contained several inaccuracies (length of vacation, when they were notified etc.) but these are difficult to disprove. The one thing that is in writing is the fact that the restaurant insisted that it was still employing her even though it wasn't.
     She's been instructed to return the unemployment money she was given, but that isn't really the issue. This situation bothers me because it feels as if they handled this in such a way as to purposefully avoid actually firing her. Would they have anything to gain from doing this? I realize that unemployment benefits come from Uncle Sam, not the business in question, but this situation seems to indicate a disincentive on the part of the business to lay off or fire my SO.

Title: Re: SO fired, kind of.
Post by: oldmannickels on January 16, 2015, 09:43:33 AM
Businesses get assessed a unemployment tax rate if they have a greater number of people go on unemployment.
Title: Re: SO fired, kind of.
Post by: OR on January 16, 2015, 09:50:31 AM
General rule on these things is your get UI benefits if you lost your job "through no fault of your own".  Now each state has it's own rules interpreting that.  I'd say there are arguments on both sides.  Not checking is right before hand is a bad fact.  Good facts are that she did clear it well before hand and got feedback regarding what would happen.  Of course the facts that the adminstrative law judge decides were true in the eventual hearing could be different from what you stated in your post. 

Sticky stuff.  Best of luck!
Title: Re: SO fired, kind of.
Post by: whydavid on January 16, 2015, 10:09:45 AM
1) In general, "Uncle Sam" doesn't pay unemployment benefits.  Unemployment is administered by the state, using taxes collected from employers, and as oldmanbutters stated those taxes go up based on your history of successful claims filed against you, so the employer does have some incentive not to fire your SO.  When the federal government makes extended unemployment benefits available, those are reimbursed by the federal government, but that would not apply here.

2) Depending on your state, you can sometimes get benefits when you are moved from a full-time to part-time position (i.e. partial unemployment), but I don't know the exact requirements where you live.  If your SO doesn't have an agreement from the employer to provide a certain number of hours, or a well-established history of receiving a certain number of hours, then this probably isn't an option.

As to your actual question, that's really impossible to know without knowing all of the applicable state and local laws.  If you think it's worth it, I would talk to a lawyer about it.  If the trip to Israel had any religious significance, you'd have a much better case.

Title: Re: SO fired, kind of.
Post by: former player on January 16, 2015, 01:48:13 PM
An oral contract is enforceable in law - but only if it can be proven.

Your SO got the job in April, stating that she would want 3 weeks off in November, which her employer said was fine.  I'm assuming though that you don't have any record of this.    Even if you had a record of it, the employment agreement apparently changed in November, as your SO said she would be taking the three weeks and the response from her employer was to change her employment - no guarantee of as many shifts.  Which could be interpreted by the courts as your SO being moved to a "zero hours contract" in return for being allowed 3 weeks off.  I'm guessing most wait staff don't get three weeks off, especially around Thanksgiving and the run-up to Christmas, so this could be seen as a valuable concession by the employer for which a reduction to zero guaranteed hours could be seen as fair.  If this was a new employment agreement, it would mean that when your SO came back from the 3 weeks and there was no room in the schedule the bar was acting in accordance with the newly agreed "zero hours" employment contract.

It's a difficult one to fight.  Your SO would need to prove something along the lines of "1.  There was no change in my employment contract in return for taking 3 weeks off,  2.  My pre-existing employment contract gave me the right to have a certain number of shifts within certain periods of time, and 3. The failure to give me any shifts by the time I started taking unemployment was contrary to my employment contract ."

In any case, it's a wait job in a bar, so hardly a high stakes unique employment.  Your SO's best immediate action would have been to go out and get another serving job in another bar rather than claiming unemployment.

An annual three week trip to Israel does seem quite likely to be an impediment to regular long-term employment.
Title: Re: SO fired, kind of.
Post by: Numbers Man on January 16, 2015, 03:02:31 PM
Sounds like a bad deal for your SO. Since the state has already ruled against the employee. Just let it go and find a new job. I don't think it's worth the stomach acid to keep worrying about it.
Title: Re: SO fired, kind of.
Post by: CommonCents on January 16, 2015, 03:12:26 PM
Penn Law has a volunteer unemployment clinic.  Contact them:

Also, yes, you can collect unemployment for a reduction of hours (e.g. 40 to 20, or 40 to 0), although I can't comment specifically on whether your SO can in this particular case.
Title: Re: SO fired, kind of.
Post by: PhillyWill on January 16, 2015, 03:28:53 PM
Thanks for the responses. I didn't really expect there to be any recourse, I just wanted to develop my understanding of the laws at play in a situation like this. She already has another job with a much more reputable company (paper contract and all!)
Title: Re: SO fired, kind of.
Post by: dragoncar on January 25, 2015, 10:55:35 AM
See if constructive dismissal applies in your state.  They cla she is employed but if she quits because they give her no hours it could be constructive dismissal