Unemployment Hearing Case: Discharged for Absenteeism
By Peg Elofson
Case Analysis: Claimant argues her absenteeism was for reasons outside her control
A company discharged its employee for violating the attendance policy. The employee filed for unemployment benefits, but the state said it denied the benefits because she was discharged for misconduct. The employee appealed, and an unemployment hearing was scheduled before an administrative law judge (ALJ).
At the Hearing
The Employer’s Evidence: The employer testified that the claimant received the employer’s point-based, no-fault attendance policy at hire. The employee was absent and late to work a lot, and her points made her close to the limit in the policy. The employer warned her that more absences could result in her discharge. However, the claimant continued to miss work and arrive late, so the employer discharged her. Of the claimant’s 25 points, she had reported “personal reasons” for almost 50% of them. The claimant was not eligible for FMLA, since she had been with the company for less than a year. The Claimant’s Evidence: The claimant testified she was absent and tardy because of child care problems and health reasons. At the end of her employment, the claimant’s husband had moved away for work, and the claimant’s daughter had moved out. The claimant testified she was unable to find care for her six-year-old son. Since she worked the night shift, she requested a different shift to make it easier to find a babysitter. However, the employer denied her request, because her attendance was unsatisfactory. As a result, the claimant was unable to report to work.
The Hearing Decision
The ALJ found the claimant was not allowed benefits because she was discharged for misconduct connected with the work. The decision stated:
The claimant was absent and tardy from work excessively
Her failure to work her shifts violated a policy she knew about
Her actions were detrimental to the employer’s interests
The claimant appealed. She argued:
The incidents for which she’d been discharged were outside of her control
She had tried several times to address the situation that caused her to miss work, but neither she nor her employer could come up with a solution that would allow her to work her shifts
The Board of Review Decision
The Board of Review (BOR) disagreed with the ALJ’s decision and reversed it. This allowed the claimant unemployment benefits. The Board found that the claimant’s discharge was not for misconduct because:
The reasons that the claimant was absent were outside of her control. The claimant could not leave her six-year-old son home alone.
She attempted to work with the employer to find a way to be able to work her shifts.
Excessive absenteeism in violation of an employer policy can be disqualifying. In this case, the claimant had accrued sufficient points to merit discharge under the employer’s attendance policy. The employer warned her that absenteeism was jeopardizing her job. In similar cases, an employer should try to prove the claimant is aware of the policy and received warnings pursuant to the policy. Also, prove the claimant violated the policy. You can do this by providing the list of absences and incidents of tardiness that accrued points under the policy, as well as the claimant's reasons for the incidents.
The reasons why the claimant was absent or tardy can be significant factors in whether a state allows benefits. In this case, the claimant had difficulty obtaining child care. In fact, the claimant made several attempts to prevent her absence from work: she tried to obtain child care, requested a different shift, and was not qualified for a leave of absence. The claimant’s absences from work were ultimately due to circumstances outside of her control. Prior to participating in a case involving a discharge for absenteeism, evaluate all the unique facts of the case. If you believe the claimant may be allowed benefits, your time could be better spent doing other things. Your unemployment consultants and hearing representatives can review all the facts and help assist in making these types of decisions.