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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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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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