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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I am currently trying to find a way to fight the unfair judgement

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I am currently trying to find a way to fight the unfair judgement given by an appeal judge for denial of unemployment benefits that I recieved for being termiated by a company named Childrens Therapuetic Communities. I worked for this company from 2007 to 2010.
This company is a community of group homes for disadvantaged teenaged boys.

There are various shifts for every position. the shifts include; weekday days and weekday nights, weekend days and weekend nights, there is also an on-call shift. oncall can work days, nights, weekdays, or weekends. If you are assigned to weekend nights like what I worked then you cannot work during the day, but on ocassion you can work on a weekday night if needed. the work shifts are from 12 to 14 hours. This is the reason that working the weekend shift which included Friday Saturday and Sunday.

In order for a person to want to change shifts you had to make the request in writing. In my case I worked weekend nights from 2007 to 2009. I started another job in 2009 but I did not want to let go of my employment with CTC. So I requested in writing to go to "On-Call status. This meant that the company would call you if they needed you or if you wanted to work you called to see if there was a shift available that you could fill that day night or weekend.
My new job kept me busy until 2010 when they layed me off, simutaneously I was fighting to save my home from foreclosure through a program called NAPA. I contacted CTC to see if there was any work available. They actually offered to have me fill a weekend nights position. So I had to make a statement that I was coming off of On-call status and going back to weekend nights. Yet when I swapped days off with a fellow employee to take care of things required for the NAPA program to save my house my supervisor had a problem with this. I informed him that I am working on this program to save my home and periodically I may need some time on the weekend to handle this. He suggested that I put in a letter to return to on-call status so that I can have flexibility to handle my personal issue. I did so, yet I was called in by the main office and I thought it was to assign me to on-call status but instead they gave me termination papers and my last check. I did not understand. To top this off when I began collecting unemployment the company appealed this and stated that I quit my position. We went to court and the judge ruled in their favor for they brought out the letter that I wrote requesting to return to "On-call" status. How can that be? The letter specifically stated that I am requesting to change shifts not to terminate my empolyment. This is also the procedure that was given to us to inform management of our wishes. How can the judge rule in their favor? They used this letter to show that I resigned my position. Now unemployment is having me payback over $2,000 of unemployment benefits that was paid out to me. this is clearly unfair. I would like to take the EDD to court to appeal this. I tried to use the EDD appeal procedure but I had to be at the board at a day and time that they set. I started a new job and there was no way that I could get off to go the day that they set for me, so they threw out my appeal. Can you help?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

I am very sorry to hear about what has happened to you. Indeed, it appears that if they served you termination papers that you did not voluntarily "quit" your position. This would mean that you are presently unemployed "through no fault of your own," and would be entitled to receive benefits provided that you meet the other requirements for eligibility.

An individual in these circumstances will likely need to file a second level appeal with the EDD. You appeal must be submitted within 20 calendar days from the date of the ALJ's initial decision. Visit this link for all the information you need on filing a second level appeal: http://www.edd.ca.gov/unemployment/Second_Level_Appeal.htm This appeal will be heard by the seven-member UE Insurance Appeals Board. The Board has the authority to affirm, reverse or modify the decision of the original ALJ. In some instances, the Board members may return the case for a new hearing.

Another more complex and more costly alternative would be to file a writ of mandate with the superior court. More specifically, CCP 1085 states: "A writ of mandate may be issued by any court to any
inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." In other words, if you can prove that the decision made against you was not reasonably supported by any facts and that the EDD "unlawfully precluded" you from receiving benefits, you may be able to request the Superior Court to issue an order requiring the EDD to reverse its decision.

The procedure for filing a writ is complex and the filing fee is substantial. You may want to contact organizations such as the Legal Aid Society that do pro bono (charitable) legal work to see if any attorneys will take on the case for free. Unfortunately, these are the remaining options once a first level appeal has been denied, typically speaking.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Patrick, Esq., Lawyer
Satisfied Customers: 6263
Experience: Significant experience in all areas of employment law.
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