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Lawyers--Firing for non-performance to keep from paying unemployment

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HappyAnniversary

Shiny_Rock
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Mar 31, 2007
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Ok, DD works as sales associate at a upscale department store. Sales are in the tank, people aren''t even walking in the store. They had an earlier layoff and those people got a small severence pay. Now many SA are getting written up as non-performers, their sales are below what is expected and if they don''t do better they are going to be fired for non-performance. They recently transferred DD to another department and initially said, no problem if your sales are lower in a new department, we will combine your sales from the past. Yesterday her manager renigned on that promise and she''s being written up for only her Feb sales, not looking at past performance. She''s been written up along with 3 others in a 4 person department.

question: If she''s fired she doesn''t get unemployment, right? because it is "her fault" but how can you make sales when no one is shopping?? It is so obvious the store is trying to get out of any obligation to the employees before the store closes (and it will close, probably very soon) Which seems very unfair to me.

question 2: Would you quit first?, she is very worried about having the history of being fired, and it isn''t a sure thing of course that she''ll find a job fact.

thanks all, I would love anybody''s comments.
 

Deelight

Ideal_Rock
Joined
Oct 4, 2007
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5,543
I know nothing about US labour laws but if I knew I was going to get fired I would quit first and end it on my own terms - and it sounds better when looking for another job.

GL to your daughter :).
 

tlh

Ideal_Rock
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Dec 31, 2008
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4,511
I''d look up the unemployment requirements in your state. But being fired for poor performance, may be considered, "by fault of your own" and she may not be entitled to benefits. This is a tricky slope, and can take some battling... but with the economy the way it is... she might want to build a profile now of what is going on so she has a case... ie showing she was transferred.. does she have anything in writing? I am sorry she is going through this. HUGS!

http://workforcesecurity.doleta.gov/unemploy/uifactsheet.asp
 

Hudson_Hawk

Super_Ideal_Rock
Joined
Nov 2, 2006
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I'm not a lawyer, and I don't know the answer about her being eligible for unemployment, but it's doubtful she'll get severance if she's let go. I would start documenting everything. Have her pull up any and all notices about policy changes and past positive performance. If it turns out she is fired for "lack of performance, she should still file for unemployment and let them make the initial determination of whether she's eligible. If they say she's not eligible because she was fired, she can appeal the decision with the state and show proof of what was going on...

That being said. It's the company's right to set goals, objectives, and standards at any time and fire employees for not meeting the goals and standards that were set.

If she quits she won't get a dime of unemployment. It's better for her to be let go by the company. Many people are getting "fired" and not "laid off". I recently experienced this myself. My company closed and the CEO used the term "terminated" in his closure letter. I was not fired, the company went out of business. I still had to argue that I wasn't "fired" with the state by showing proof of the closure outside of the letter from the CEO (I had media reports of the closure and "termination" of 500+ employees).

In this economy most employers understand what's going on with businesses and the extents those businesses go to to stay afloat. Unfortunately a lot of times those efforts involved [email protected] the little man. I think she can find an appropriate and professional way to communicate what happened in her previous role. If the store closes, there's no one for them to talk to for a reference. She should strategically choose who to list for a references on this job. It should be someone she had a positive relationship with who knows her work ethic and character, and who understands what happened and why she was let go.
 

Italiahaircolor

Ideal_Rock
Joined
Dec 16, 2007
Messages
5,184
I don''t know your particular states labor laws...but, I would seriously encourage her to research them. Find out under what terms she''d need to be terminated in order to collect unemployment...and then weigh that against having "fired" as an explaination as to why you were left your previous postion.

Personally, as someone who reviews resumes and hires in my current position, I have to tell you "being fired" isn''t always a red flag for me...it''s the reasoning behind it that often sways my opinion one way or the other. For example...if a person was fired for theft, then I wouldn''t hire them or waste my time inviewing them. However, if they were fired for missing too many days of work, I''d interview them and get their side of the story. And if they were terminated for low sales in this economy, I''d probably over look it.

Best wishes to her on whatever happens....
 

Hudson_Hawk

Super_Ideal_Rock
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Nov 2, 2006
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10,541
Even if it looks like she wouldn''t be eligible, she should still apply and appeal if she''s denied. The current policies are based on antiquated situations and things are different today. I imagine the appeals board is looking at each individual situation as opposed to ruling with an iron fist. What''s the worst that can happen, they say no?

Obviously, if your DD thinks the writing is on the wall, she should start conserving her money. Especially if there''s a chance she might not receive unemployment.
 

meresal

Ideal_Rock
Joined
Nov 13, 2007
Messages
5,720
I'm sorry that your daughter is having to deal with this. It can be extremely stressful. Here is my personal story since I was in the same position as your DD...

As manager of a bridal salon, I was "fired" for under performance. When I initially applied for unemployment, I was denied. Since I expected this, I had already gotten all of my paperwork together to appeal it, which my state allows. The state department assigned our case a mediator, and we went back and forth proving that the bridal salon had no marketing budget, which caused my "performance" to be much lower than what they projected we should have done in the first year of business. You can't convince people to buy a dress, when they never come into the store in the first place. Have her start documenting how many people actually come into the store and how much is purchased versus what the store "says" she is supposed to be selling.

Your state should have a Workforce Commission that you can contact to get information about situations like your daughter is in. If she can prove that she is showing up on time, not calling in for shifts, or taking extra long lunch breaks... then she should have a very good case for unemployment, even if she gets fired.

Good luck!
 

Allison D.

Ideal_Rock
Joined
Feb 1, 2008
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2,282
Date: 3/5/2009 8:51:51 AM
Author: Deelight

I know nothing about US labour laws but if I knew I was going to get fired I would quit first and end it on my own terms - and it sounds better when looking for another job.
Given the current state of the world, I''d disagree with this at this moment.

If you quit, you lose any option to unemployment benefits. If you are fired, you may still get them. I''ve seen people in sales who didn''t make their numbers still get unemployment; it depends on the circumstances. If you were doing all the things required and still didn''t meet revenue goals, you may qualify for it.

With the economic condition being what it is, people are getting laid off in droves, prospective employers will presume that more folks are in the job market due to layoffs. Most companies will not confirm why you left; with privacy laws today, most won''t comment about your employment beyond confirming the dates you were employed from and to.

I''d recommend against quitting in most situations.
 

brooklyngirl

Brilliant_Rock
Joined
Oct 9, 2007
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1,071
I say this having worked for an east coast state department of labor for over two years. It won't be a quick and straight claim, but chances are even if you're fired for poor performance, as long as it's not gross misconduct (i.e. you stole money, participated in harrassment, and other things of that nature), the claimant will still receive at least partial benefits.

*Edited for grammar.
 

Allison D.

Ideal_Rock
Joined
Feb 1, 2008
Messages
2,282
Date: 3/5/2009 3:29:55 PM
Author: brooklyngirl
I say this having worked for an east coast state department of labor for over two years. It won''t be a quick and straight claim, but chances are even if you''re fired for poor performance, as long as it''s not gross misconduct (i.e. you stole money, participated in harrassment, and other things of that nature), the claimant will still receive at least partial benefits.
This better sums up what I was trying to say, too.
 

rainwood

Brilliant_Rock
Premium
Joined
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1,475
You''ve gotten some great advice about not quitting, documenting the situation, etc. One of the things that may help in the unemployment benefits decision/appeal is for your daughter to keep track of what is happening with the other employees, both in her department and elsewhere. If she can show a pattern of lots of people being written up for non-performance when that wasn''t the case before, it will be easier to show that this is just the store''s effort to get out of paying unemployment rather than an actual evaluation of people''s job performance.
 

HappyAnniversary

Shiny_Rock
Joined
Mar 31, 2007
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419
Thank you so much for your replies. I have recommended she hang in as long as possible if only because she has her one week vacation coming up soon, and you want to grab that, and the next job isn''t a sure thing. I will definitely have her track customers. I agree being "fired" in this economy is something that future bosses are going to understand. Thanks again.
 
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