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Zero tolerance for fighting

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					Unemployment Claims in Georgia
          (2011)
       Mrs. Callie Bryan        Dan Murphy
 Jones, Cork & Miller LLP McLocklin & Murphy, LLP
        Macon, Georgia      Winder, Georgia
Selected Cases in Georgia UE
 There are lots of initial
  claims for benefits
 Multiple layers of review
  w/n Dept of Labor
 Claims Examiners may not
  always know/follow “the
  law”
 But we look to where the
  light is…
Individual eligibility
 Eligibility v. disqualification
 Monetary considerations
 Non-monetary
  considerations
   Individual is seeking work
    (generally FT, but…)
   Individual did not
    voluntarily quit
How do you get to Statham from here?
                Pauline Wallace lost her job in a
                 garment factory in Braselton and
                 then declined work in Statham
                 due to lack of transportation
                Eligibility case, not
                 disqualification case
                Employee burden to provide
                 himself with transportation
                  General Rule
Eligibility rule change
 The individual is able to        No one shall be disqualified
  work, is available for work,      “solely because the
  is actively seeking work          individual seeks, applies
  and is bona fide in the labor     for, or accepts only PT
  market.                           work… (if) they worked
 Bona fide in the labor            PT during the majority of
  market amended in 2009            weeks in the base period”
  re: part-time work
   Robinson v. Thurmond (2011)
 Robinson’s position as PT teacher
  eliminated, but offered FT position
  on another shift
   Why did she decline FT work?
 Is decline of FT work a voluntary
  quit?
   Ct: No
 In light of 2009 amendments,
  Robinson is entitled to benefits
The voluntary quit
 Employee may not be
  disqualified from
  benefits if they can
  show good cause
 But the burden is on
  the employee to
  establish good cause
   I quit…or, maybe not…
 Cornett offers to resign teaching
  position w/ Bulloch Academy
   Then refuses to sign letter in
    dispute of $
   But does clean out office
 Ct: Resignation was an
  accomplished fact & denial of
  benefits upheld
 Allen v. Lankford note
“I’m gonna shoot you in the head”
              • Ann Blair quits as cook after verbal
                & physical abuse by Owner
                – Some factual disputes…
              • Ct finds ‘intentional harassment is
                good cause’ and an employee does
                not waive right to leave ‘merely
                because the employee tolerated
                such abusive conduct in the past’
   A good reason to quit?
 Bookkeeper leaves w/ concerns
  over practices & trainee making
  more $?
   Talked w/ IRS regarding same
 She worked 2 months after
  questioning practices, but quit
  mid-shift when learning of
  trainees pay…
    Disqualification for benefits
 Absenteeism or tardiness
 Violation of rules, orders or
  instructions
   Failure to discharge duties
 Property loss or damage
 Intentional conduct leading to
  bodily injury
 Fighting or threatening behavior
 Refusal to submit to drug test
 Falsifying employment records
Carter v. Caldwell
• Incarceration for away
  from work conduct that
  leads to termination
  – Fired for lack of attendance
• Ct finds Mr. Carter is not
  eligible for benefits
• What about ‘mere’ arrest
  (w/ absence) or arrest for
  offense violating other
  rules of BOE?
Whose ‘fault’ is it that I’m not here?
• Roberson in car accident
  (other driver at fault)
• Unable to get to work &
  released
• Ct finds that “he still had
  the responsibility of
  providing his own
  transportation to and from
  work”
• Note McMurray’s
  dissent…
Failure to pass certification test…
don’t worry, it’s not your fault!


• Tanner v. Golden (1989)        • Court holds that since they
• Muscogee Co argues they did      did take the test several times
  not take the test every time     “the only possible conclusion
  offered & did not use staff      is that the claimant’s efforts
  development provided to          to pass the TCT were bona
  assist them in passing           fide.”
                                 • Conscious, deliberate fault?
Compare w/ Troup BOE v. Daniel
                  Board of Review held that
                   since Ms. Daniel ‘did not
                   take full advantage of
                   opportunities for being
                   recertified’ and ‘took the
                   test on only three
                   occasions’ she would be
                   denied benefits
                  Court of Appeals reversed
                   & awarded benefits per
                   previous slide
Childcare conundrum
• Barron released from
  photocopy job when OT
  became required
• She had solved childcare
  problems by deadline to do
  so, released anyway
• Ct: no evidence she knew
  this was the rule or
  position of Bank
You mean that’s wrong?
 Frank Whitfield struggled
  w/ 7 yr old patient,
  pushing him to the ground
 A technique not in the
  ‘Manual for nonviolent
  crisis intervention’
   Prior reprimand for non-
    therapeutic use of
    seclusion
Skinner v Thurmond (2008)
              Skinner’s job was to find & secure
               subK to paint & clean commercial
               properties
              Properties not well maintained,
               counseling and continued to use
               bad subK’s
              Evidence points to lack of qualified
               subK’s & so dirty floor is not
               Skinner’s ‘fault’
   Dude, you can get fired for that?
 Ivey failed a Georgia-Pacific Drug
  Test & was fired
 Ivey admitted to smoking
  marijuana at home
 GP Policy did not comply with
  Drug Free Workplace Rule
 Ct: Employer may still prove
  justification of drug-based
  discharge
Zero tolerance for fighting?
• Ms. Russell fired after
  slapping co-worker
• TNS Mills policy was to
  discharge any employee
  regardless of threat or
  provocation
• Ct: Error for Dept not to
  consider extent to which
  Ms. Russell was provoked.
Department of Labor-Appeals
 Step 1-Claims Examiner
 Step 2-Administrative
  Hearing Officer
   Evidentiary Stage &
    opportunity
   Beware of Hearsay rule &
    implications
 Step 3-Board of Review
 Step 4-Local Superior
  Court
Yamaha (hearsay) rule
• Keith McGahee released
  for sexually harassing co-
  workers & failing to report
  others’ harassment
• He denied both charges
  and no witnesses testified
• Yamaha failed to call
  “apparently readily
  available” witnesses
Teal v. Thurmond (2011)
               Teal failed to account for $50
                collected during bartending shift
                 But never admitted to discrepancy
               Prior warning & company policy
               HR specialist w/ no personal
                knowledge of any facts
Thank you so much…




 …for your kind attention!

				
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