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Judges split in termination ruling

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In an opinion involving whether a worker was fired for just cause after multiple excused absences, the majority acknowledged the split in the Indiana Court of Appeals regarding the reasonableness of "no-fault" attendance policies.

In Lisa M. Beckingham v. Review Board of the Indiana Department of Workforce Development and Cenveo Corp., No. 93A02-0808-EX-771, Lisa Beckingham appealed the Unemployment Insurance Review Board's denial of her application for unemployment benefits. The board affirmed the administrative law judge's finding she had been fired for just cause for violating Cenveo's attendance policy. Cenveo has an excuse-based policy and the company handbook provided that an employee can be fired for excessive excused absences or tardiness within a one-year period. Beckingham had 14 ½ excused absences within one year.

On appeal, she argued the board improperly determined Cenveo fired her for just cause, that the board should have used Indiana Code Section 22-4-15-1-(d)(3) instead of (d)(2) to rule whether she was terminated for just cause, and the company's attendance policy is unreasonable because it subjected her to termination regardless of her reason for absences.

The appellate court addressed the issue of "no-fault" attendance policies in the Jan. 29, 2009, opinion John D. Giovanoni II v. Review Board of the Indiana Dept. of Workforce Development and Clarian Health Partners, Inc., No. 93A02-0806-EX-545. The majority in that case ruled Love v. Heritage House Convalescent Center, 463 N.E.2d. 478, 482 (Ind. Ct. App. 1983), provided a more sound model for determining eligibility for unemployment benefits when the employee is fired for attendance issues.

But in the instant case, Senior Judge George Hoffman Jr. and Judge Carr Darden held the reasoning set forth in Jeffboat, Inc. v. Review Board of Indiana Employment Security Decision, 464 N.E.2d 377 (Ind. Ct. App. 1984), and Beene v. Review Board of the Indiana Department of Employment and Training Services, 528 N.E.2d 842 (Ind. Ct. App. 1988), is the better rationale for determining the reasonableness of an employer's attendance policy. The majority affirmed Beckingham was discharged for just cause under section (d)(2) and that that I.C. Section 22-4-15-1(d) is disjunctive and an attendance issue may be analyzed under section (d)(2) or section (d)(3).

Judge Edward Najam dissented, voting to reverse the board's determination of Beckingham's claims and remand with instructions it consider her claim under (d)(3). Judge Najam wrote he would follow the reasoning of the majority in Giovanoni that termination for unsatisfactory attendance must be analyzed solely under section (d)(3).

The Review Board of the Department of Workforce Development filed a rehearing request in the Giovanoni case March 2.

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  • Politics...
    It seems to me .. the Judge I went before , seemed determined to rule in favor of the Employer from the get go.. I thought this was showing extreme bias.... Politics... Its like they are in a number crunch to as to not pay benefits to employees... Just Saying...

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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