You can get unemployment benefits in Iowa if you were fired, as long as you weren’t fired for misconduct. And missing a lot of work—excessive absenteeism—can be misconduct. But when is excessive absenteeism misconduct, and when is it not misconduct?
In Cherie A. Hentges v. Texas Roadhouse Cedar Falls LLC, Administrative Law Judge Lynette A.F. Donner decided that even though claimant Ms. Hentges missed four days of work during the three months she worked as a server for Texas Roadhouse, one allegedly for drunkenness, her absences did not amount to misconduct.
Three of Ms. Hentges’s four absences were excused with doctors’ notes, and excused absences do not count when figuring excessive absenteeism. When people say “excessive absenteeism”, what they really mean is “excessive unexcused absenteeism.” There was only one remaining absence, and that is hardly “excessive”: “Even if the final absence was not related to properly reported illness or other reasonable grounds, the employer has not established an overall record of excessive unexcused absenteeism as necessary to establish work-connected misconduct.”
But Judge Donner went a bit further than that. For an employee’s action to amount to misconduct, it has to be “a deliberate act or omission which was a material breach of the duties and obligations owed by the employee to the employer.” Judge Donner determined that this meant that in order for the alcohol-related absence to amount to misconduct Ms. Hentges has to have been previously warned that future absences could cause her to get fired.
Lesson learned: if you’re home sick form work, get a doctor’s note. Think of it as insurance, because it can protect you just as it protected Ms. Hentges. This decision also means that more employers will tell employees when their level of absenteeism is endangering their job.
But here’s the thing: at some level, it’s always going to be he said/she said. Let’s say you were in a situation like Ms. Hentges, but already had a few unexcused absences. If your employer told the judge you had been warned about future absences, and you said you hadn’t been warned, it’s your word against your employer’s. And if you were a judge, would you be more likely to believe someone who missed work due to drunkenness, or one who hadn’t?
Iffy situations like this are why you should have a lawyer. I like to say to my clients, "Help me to help you." If we can help you call the Lombardi Law Firm to speak with attorneys Steve Lombardi and Katrina Schaefer. We can be reached at 515-222-1110 or by emailing us at [email protected] and [email protected] We look forward to your call.
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