Unemployment Hearing Case: Discharged for Avoiding Work

Case Analysis: Claimant did not report her absences in order to have them covered by FMLA

Background A company discharged an employee, a telecommuter, for not performing her job duties. She filed for unemployment benefits. The state said she did not qualify for unemployment benefits because her performance was considered to be misconduct. She disagreed with that decision and appealed. So, an administrative law judge (ALJ) held a hearing.

At the Hearing

The Employer’s Evidence: The employer testified that the claimant, who worked from her home, was fired for not working when she was scheduled to work. The claimant had been given the employer’s policies at hire, and one of them prohibited avoiding scheduled work. The claimant’s manager noticed through work systems that the claimant was not performing the work she was supposed to be doing. Her manager tried to reach her several different ways, but the claimant did not respond. Once the claimant’s computer access was turned off, she called her manager and explained that her son was ill, and she was taking care of him. The claimant’s manager looked into whether the claimant’s absence from work was approved for FMLA, and learned that the claimant was not reporting absences as required. She admitted to her manager that she had not been working when scheduled, and was fired. The Claimant’s Evidence:  The claimant testified she was not working during the time the employer was attempting to reach her. She testified that her son was very ill and was in and out of the hospital.  She said that she had been approved for FLMA during that time so that she could take care of her son.

 The Hearing Decision

The ALJ found:

  • The claimant did avoid work for a significant period of time
  • She knew that not working was a violation of the employer’s policy and could result in her discharge
  • The claimant did not report her absences so that they could be covered by FMLA
  • The facts supported a finding of misconduct, and the claimant was disqualified from benefits

The claimant appealed. She argued:

  • Because she was approved for FMLA, her failure to work shouldn't have counted against her.
  • She had a very good reason for not working during that time

The Board of Review Decision

The Board of Review (BOR) agreed with the ALJ’s decision. It stated that:

  • Evidence fully supported the ALJ's decision
  • The decision was correct according to the law


  1. Cases that involve telecommuters and absenteeism can be challenging. In this case, the claimant was not reporting her absences but was also not producing any of her required work.  The employer discovered the problem by using reports from their work system to show that the claimant had not completed her duties. In similar cases, be prepared to present any documentation you have that supports the testimony you plan to offer. This can include: a written policy, proof the claimant received the policy, and printouts showing what your system tracked regarding the claimant. Providing the documentation helps prove the facts you want the ALJ to find.
  2. If the claimant could have done something to avoid the incidents that led to discharge, the state might find misconduct. In attendance-related cases, if the claimant has a compelling reason for missing work, the state can find that there is no misconduct connected with the work.  However, if the claimant could have done something to avoid the incidents but didn’t, the state can decide that the separation is the fault of the claimant, which could lead to disqualification.  If you believe the claimant could have done something (like file for a leave of absence, or properly report absences related to a leave of absence) to avoid being fired, be sure to prove that the claimant was aware of the option and did not do what was necessary.

Read more or download our free Unemployment Hearing Case Guide Book where we examine evidence from 12 unemployment hearing cases, giving you professional insight on the Administrative Law Judge and The Board of Review decisions.   Please remember: Unemployment laws vary from state to state. The result in this case might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific fact.

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