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Lombardi Law Firm

Fired for taking an excused leave of absence? Not misconduct


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8/1/2014
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It’s pretty normal to feel like you’re doing something wrong when you have to call in an absence to work, even if you’re not playing hooky.  You might be sick, or maybe you’re caring for an ill family member.  Usually employers are understanding and it’s not a huge issue.  But if you have to miss a lot of work, even if you have a really good excuse, your employer might get annoyed—especially if it’s a small business.  You could end up losing your job.

Peter Duchesne (not his real name) was an employee in a very small company.  He had a family emergency, and his employer, Cindy Peeples (not her real name) let him take a leave of absence, telling him to take all the time he needed, and that his job would be waiting for him when he came back.  A month later, Mr. Duchesne called Ms. Peeples to tell her his planned date for coming back—he’d be out about six weeks total—and she turned the tables on him.  She explained to him that this was a small company that couldn’t afford to deal with the issues he was facing, and that he should look for a job with a larger company that had insurance and benefits.  Mr. Duchesne had been fired.

Mr. Duchesne reasonably applied for unemployment benefits and was found ineligible.  He appealed.  His employer’s argument was that he had been discharged for misconduct, and for that reason should be denied unemployment benefitsAdministrative Law Judge Duane Golden decided the appeal, determining that Mr. Duschesne hadn’t been discharged for anything constituting misconduct, and granted him unemployment insurance benefits.

Mr. Duchesne’s employer’s argument was fundamentally flawed for a few reasons.  First of all, it can be misconduct if you miss too much work; people have been fired and denied unemployment benefits for missing far less work than Mr. Duchesne missed.  The key difference, though, is that Mr. Duchesne’s absences were excused—and excused absences don’t count when you’re calculating excessive absences for the purpose of misconduct.  Usually, an excused absence is something along the lines of a sick day for which you have a doctor’s note, or a day when you have jury duty and the court gives you a note to take to your boss.  But in this case, Ms. Peeples gave her employee a quite liberal excused leave of absence.

Even if this wasn’t enough to grant Mr. Duchesne unemployment benefits, his employer failed to give him adequate warning prior to termination.  When did his employer find that his absences were excessive?  We don’t know—she never communicated that to him.  She never issued a warning to him that his job was in trouble, and it isn’t clear which absence was the straw that broke the camel’s back, so to speak.  Maybe it was after two weeks of absence, or three.  Unless Ms. Peeples was firing Mr. Duchesne specifically for missing work that day, then she was firing him for past acts of misconduct.  Firing an employee for a past acts of misconduct—even actual, real misconduct, such as unexcused absenteeism or fighting on the job—cannot keep the employee from getting unemployment benefits in Iowa.

People usually have a good reason for missing work, but sometimes they get fired for it anyway.  Don’t let that keep you from applying for unemployment benefits in Iowa.  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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