Nursing assistant’s repeated disregard of safety procedures was carelessness amounting to misconduct, wasn’t eligible for unemployment benefits
According to the reported decision this employee was fired from her job as a nursing assistant at Stonehill Care Center in Dubuque on January 8, 2014. In her last two months working at the long-term care facility, the employer alleged that these problems had arisen in her employment:
- She transferred a patient without using mandatory safety equipment.
- She left a resident on a toilet without supervision.
- She failed to follow procedure on transferring a resident to a toilet.
- There was an obstruction at the dining room door when residents were supposed to be entering the dining room.
- People reported wet beds and poor care to her employer.
- Numerous residents complained that they no longer wanted her to care for them.
According to her employer this aide had been warned that her job was in jeopardy. After being fired she filed for unemployment benefits and was awarded benefits, but they appealed and then on April 1st, the decision was reversed.
Administrative Law Judge Vicki L. Seeck found that the worker had been fired for misconduct, and was therefore ineligible for unemployment benefits. The law defines “misconduct” as
“conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer.”
A single act of carelessness would not have been enough to be deemed, per se, misconduct—we saw that in the case where a truck driver caused thousands of dollars of damages by getting in an accident. The facts indicated that this employee made careless errors again and again causing Judge Seeck to decide that she “engaged in a pattern of wanton carelessness with regard to the residents in her care” consistently enough to find that misconduct occurred.
But reading between the lines of this decision, there are a few things that aren’t really clear: the decision doesn’t say the fired employee was responsible for the obstruction in the dining room. It doesn’t say that the wet beds and poor care reported were due to her carelessness. And no residents actually provided testimony. While the remainder of the safety violations probably weren't helpful and could be considered bad enough to be considered misconduct on their own, it looks like those stray facts made their way into the decision even though they were of dubious relevance. As Steve Lombardi has taught me lawyers can make a huge difference in these cases. If this aide had had a lawyer, maybe she would have come out looking better because as Steve says, "we would have provided an explanation for every allegation of misconduct to explain it and to place it in the proper context.". Steve says when they want to get rid of you, management can do its best to make you look bad, creating an illusion of misconduct. Unrepresented employees are easy prey for management looking for a scapegoat. Steve says, "This lady simply needed a lawyer."
Ms. Burchett had accepted nearly $1,800 in unemployment benefits between when she was originally awarded benefits and when Judge Seeck reversed the decision. This means that Ms. Burchett was overpaid, and normally when someone is overpaid unemployment benefits, they are liable for paying that amount back to Iowa Workforce Development. There is an exception to this rule only if both of these conditions are fulfilled:
- The claimant didn’t lie or commit fraud in order to receive the benefits, and
- the employer failed to participate in the initial proceeding that awarded benefits.
Judge Seeck didn’t have to look at whether fraud occurred, because Ms. Burchett’s employer did participate in the initial proceeding. This fired worker had to pay back the money she had been awarded.
Here’s what you can learn from this. First, some mistakes you make on the job are bad enough to get you fired—and the more mistakes you make, the more likely it is to be misconduct. Second, if you’re receiving unemployment benefits, keep careful track of the amounts you’re being awarded so you will have some forewarning if you are overpaid and need to pay the amount back. Third, get 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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