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Can this deny me unemployment insurances? Is the company being sneaky?
May 26, 2012 8:24 AM   Subscribe

May be let go for sales performance, company wrote "general misconduct for not achieving monthly target"...is this a play on words to deny me unemployment insurance?

I have worked for 8 months at my present position, which is a high stress sales environment, but cannot keep up with my sales targets and have been placed on probation.

The manager explained stated there's concern over my figures not being a certain standard over the last few months. He explained that he believe its because I am not passionate about my position but feels I can turn this around if I choose. However, then he contracted himself and stated that it's not about my sales figures (that I'm on probation) but rather that I do not have passion for the job and they are concerned over the long term. He ended it off by telling me, that he leaves it up to me to decide and based on how I act that will show them what I decided.

My concern is that the company is trying to spin this around and deny me unemployment benefits (State of New York) by making it seem that I chose to not work there based on how I acted; thereby, denying my claim.

First of all, I work hard during my normal hours of operation 830-530 and put in maximum effort, but I do not stay overtime like everyone else, even when my figures are falling behind. I do not have any benefits, nor do I get paid for overtime, so I do not feel a compulsion to do this (this is why they think I do not care). My performance, in terms of number of opportunities opened a day, is measurable through SalesForce and shows my effort along.

Does the community think they can deny me claims over this? Should I speak to HR and have my letter of probation rephrased from conduct to performance (even if the letter already contradicts itself) Or is that event already because of the reason it gave "not achieving monthly target"

P.S. I have recorded this conversation with my boss.
posted by Wazooga to Work & Money (17 answers total)
 
They can write whatever they want on their reports, the unemployment commission will decide the actual facts. The employer will have to show evidence of actual misconduct.

What you don't want to do is quit. Which is probably what they are trying to get you to do. Which, if you can get a better job lined up, would probably be a good move.
posted by gjc at 8:30 AM on May 26, 2012 [3 favorites]


They can write whatever they want on their reports, the unemployment commission will decide the actual facts. The employer will have to show evidence of actual misconduct.

This is absolutely right. I've been on the other side of it (answering questions on behalf of an employer to determine a former employee's eligibility for unemployment) and they are tough.
posted by ThePinkSuperhero at 8:50 AM on May 26, 2012


Yeah, unemployment commissions send a VERY lengthy form asking for facts, etc., and if the employer says something like "they violated a policy" the employer tends to get a letter asking for the text of the policy and the documentation that the employee knew it was coming. They ask the employer to send photocopies of signed investigation summaries, in cases where they had already sent the signed letter of resignation.

And find a better job if you can - this will not get better for you.
posted by SMPA at 8:54 AM on May 26, 2012


I do not stay overtime like everyone else, even when my figures are falling behind. I do not have any benefits, nor do I get paid for overtime, so I do not feel a compulsion to do this (this is why they think I do not care).

No, that's why they know you don't care. You're not performing up to their standards, and apparently, other people are. Reasonable people can disagree about whether the company is giving you a reasonable goal to live up to or whether you should be putting in "free" overtime. But you're not hitting your targets, and you are dismissing a method that other people appear to be using.

Does the community think they can deny me claims over this?

As gjc notes, they don't have the final say in this. Their use of the word "conduct" rather than "performance" won't make a lick of difference to your local unemployment commission.

P.S. I have recorded this conversation with my boss.

You want to be very careful about doing this and about telling people about it. I don't know where you're from, but that's a crime in a fair number of places.
posted by Etrigan at 8:55 AM on May 26, 2012 [3 favorites]


Find another sales gig. It's not worth the stress of working for these sort, who learned their crap "management" techniques from the likes of Glengarry Glen Ross and Boiler Room.

This is a pretty classic ploy; they want to squeeze you for every last drop of life, and will do whatever they can (including trumping up reasons for letting you go) if you don't acquiesce. It's almost certainly designed to be, at best, emotionally manipulative.
posted by ellF at 8:58 AM on May 26, 2012 [2 favorites]


SalesForce is evil, evil software IMO. I wasn't aware other companies used it. I had to use it at my last long-term job (my only "firing"). And might I say-- even though when I was terminated and it was reportedly for "misconduct"-- I was still granted unemployment. It is truly up to the unemployment office-- not your employer. Even if it is at first denied, I would also appeal the decision. Usually unemployment is on the employee's side in these cases. Good luck to you, and don't worry. You'll find another job!
posted by camylanded at 9:07 AM on May 26, 2012 [1 favorite]


nor do I get paid for overtime,

I am not your lawyer. The following is not legal advice.

OP, if you are not an exempt worker, this nonpayment of overtime violates both the Fair Labor Standards Act and the New York State Labor Law. You should probably try to schedule a flat-rate consultation with an employment lawyer to determine whether or not your pay structure renders your sales job exempt. You are more likely to be exempt if your are paid on a commission basis, but nobody can render a worthwhile opinion without a full examination of your employment situation. If you are not exempt, you may will be entitled to unpaid wages, unpaid additional pay for the overtime hours worked, and certain other compensatory and punitive damages.
posted by Inspector.Gadget at 9:26 AM on May 26, 2012 [2 favorites]


....may well be entitled...
posted by Inspector.Gadget at 9:27 AM on May 26, 2012


I think you have a reasonable basis for your suspicion that your employer is trying to frame this situation as more than just you not being good at the job, or not meeting the sales targets. But what the upthread posters have said is generally correct: the employer's characterization of the termination is not dispositive.

Also, Inspector.Gadget raises a good point about overtime, since it is unlikely--unless you have an "outside sales" job--that your position exempts you from overtime laws. The facts as you present them are too vague to do more than say it's worth looking into, though. On the other hand, if you're not working overtime anyway, it may be a moot point. This is one of those things that could end up being enormously profitable for any lawyer you hire (lawyers can get typically get attorneys fees when their clients prevail in these cases even if the damages are minimal) but will suck up a large amount of your energy and time for very little financial gain. Nevertheless, it is worth considering.

On the issue of recording the conversation: New York is a one party consent state, so if the conversation took place in New York, this is presumably legal.

Whether you should discuss this with HR: while there is some risk to this, there is also plenty of upside. One of HR's responsibilities is to keep the employer out of trouble. It could be that your employer has good reasons for characterizing your (potential) termination as due to misconduct. But if it's questionable, a good HR person would probably recognize this as more trouble than it's worth and will act to keep your manager in line. This will certainly make receiving unemployment easier, and it will also make the record clear that you weren't fired from this job for misconduct, if that ever rears its head in the future. Having said all that, my gut feeling (so take this for whatever it's worth) is that my confidence that your company has a good HR department is a little low.
posted by MoonOrb at 10:05 AM on May 26, 2012 [1 favorite]


"Failure to perform" is typically not a reason for the state to deny UI benefits, at least in my experience as a former HR person who dealt with numerous New York unemployment claims. NY, in my experience, was fairly employee-friendly. If they lay you off for failing to meet your sales goals, based on what you have written I see no obvious reason why the state would deny benefits. I would not be the one deciding your claim, though, so obviously that's no guarantee.

If you quit your job, your chances at getting UI will be greatly reduced. You would have to show constructive discharge, wherein your employer either unilaterally changed the terms of your employment, or made the conditions of your employment so unpleasant and hostile you had no choice but to leave. I'm not seeing that here.

I do not think the wording of the letter matters and frankly, HR has no reason to change it for you and I'd be surprised if they did. Check your employee handbook to see if "misconduct" is defined/described anywhere. Your employer is calling it "misconduct," but it sounds more like you simply aren't making the grade rather than violating some rule. If/when you file for UI, you will be asked to explain the reason for your termination. Explain that you were unable to meet your sales goals despite working normal hours.

One last thought - is OT mandatory? If so, I could see why this is being termed misconduct. Have you had a problem with attendance? Failing or refusing to work mandatory OT and missing a lot of work could potentially hurt your claim for benefits.
posted by pecanpies at 10:46 AM on May 26, 2012 [1 favorite]


OT is not mandatory actually. The employer just expects you to "take ownership."
posted by Wazooga at 11:09 AM on May 26, 2012


I am a sales manager; IANYSM. I worked in a sweat shop like this for 5 months, so I feel your pain. I do have to say - Sales Force is a tool. Some people who use and abuse the results are also tools, but that doesn't make it an inherent force of evil.

Anyway, the unemployment people are not going to gig you because your management might try to set up a mismatch between their goals and your performance. Most unemployed people got that way because they didn't live up to their manager's expectations, reasonable or not. Denial of benefits might come because you didn't show up, or quit, etc. I wouldn't bother your HR department about this, as a company like this one is unlikely to have enlightened souls working there.
posted by randomkeystrike at 12:05 PM on May 26, 2012


It's all good. I agree with upstream that they are trying to demoralise you toward quitting (or toward working more hours for the same money).

Qualitative poor performance is not usually a great reason for termination. As has been mentioned, wilful violations of policy can be, but "you're not working hard enough" will be a tough sell on their end. Essentially it boils down to the fact that you are an 'at will' employee, and if they fire you, they did so wilfully and not by any action of your own. As has been mentioned, they will have to prove disciplinary action and the general paper trail leading up to your dismissal, if they're claiming that you violated the employment contract. Unless you have done, it is not apparent that you have anything to worry about related to unemployment.

The thing that they can do is start to make your role more onerous in an attempt to force you to quit. If any material targets or the working conditions change, immediately consult an employment lawyer. If they try and have you agree to anything new by email, request paper copies and do not agree until you have talked to said lawyer.

Also agree with the above posters that this job sounds as if you need to move along. Stay strong and focused, and don't give up anything in the process.
posted by nickrussell at 1:03 PM on May 26, 2012


OT is not mandatory actually. The employer just expects you to "take ownership."

For FLSA and NY Lab. Law purposes, this is often irrelevant - permitting an employee to work is in many cases the same as demanding that he or she work. Again, this will turn on whether or not you are exempt from provisions regulating overtime. I reiterate my suggestion that you speak with an employment lawyer if you have worked any unpaid overtime. FWIW, companies that do not meet their overtime pay obligations are likely to violate your rights in other ways.
posted by Inspector.Gadget at 1:06 PM on May 26, 2012 [1 favorite]


If you really want to work this out you could have your employer write up a list of goals and strategies that are clearly outlined. You're not hitting the sales target, so what are some objective (i.e. not vague "be more committed!") pointers can you SM give you? He's a manager - he's not supposed to sit back and relax, he's supposed to manage - and managing doesn't mean "berate".

When he gives you the typed and signed list, you can go through all of the reasonable goals and make sure you do them.

If there are unreasonable pointers (e.g. unpaid overtime, making 100 calls an hour, etc.) now you have written proof of them.
posted by Lt. Bunny Wigglesworth at 2:27 PM on May 26, 2012 [2 favorites]


The manager explained stated there's concern over my figures not being a certain standard over the last few months. He explained that he believe its because I am not passionate about my position but feels I can turn this around if I choose. However, then he contracted himself and stated that it's not about my sales figures (that I'm on probation) but rather that I do not have passion for the job and they are concerned over the long term.

Bottom line: if you had been meeting your sales figures, the conversation would not have happened.

My performance, in terms of number of opportunities opened a day, is measurable through SalesForce and shows my effort along.

But obviously it's not sufficient, because you're not meeting your targets.

The talk about "passion" and the like is related to where, if you were a borderline case, they might have decided to keep you because you showed potential and cared enough to make it worth their while to continue investing in you.

Now, a reason to be refused unemployment insurance is willful misconduct, and odds are that the employer will try to dispute your claim if you file for unemployment insurance because that means they have money, and they don't want to do that, but losing a job because you're not doing very well at it isn't the kind of thing that qualifies as a breach of policy.

However, if you want to save your job (which it doesn't sound like you do), the operative thing to do would be to start staying as late as everyone else and consistently exceeding your sales targets.
posted by deanc at 2:55 PM on May 26, 2012


You want to be very careful about doing this and about telling people about it. I don't know where you're from, but that's a crime in a fair number of places.

For what it's worth, it's not a crime in New York State as long as at least one party is aware of the recording (the poster him/herself, in this case) and neither end of the phone conversation is occurring in another state that happens to require dual party notification (like, for instance, California).
posted by nobody at 4:37 PM on May 26, 2012


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