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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6738
Experience:  Significant experience in all areas of employment law.
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I have been getting UI for about three years now, and back

Customer Question

I have been getting UI for about three years now, and back in November (2011), I received one of EDD’s letters with a stub attached. The stub stated that my UI is EXHAUSTED (the word was in all caps). Like any other intelligent human being, I took that to mean I was no longer eligible to receive benefits because I had completely run out of funds. (This is the only time I’d received such a message.)

About a week later, I received a claim form for two weeks (Nov. 13 – Nov. 26th). I was sure that EDD made a mistake because their previous communiqué had said I had EXHAUSTED my claim. So, I put it aside and didn’t think too much about it, until a friend urged me to fill it out and return it ASAP. By then the due date for EDD to receive it had passed (by 10 days, I believe). Nevertheless, I mailed it and then received a letter from them stating they needed to know WHY I was late and that they had scheduled a phone interview to hear my reason. I had the interview on Jan. 3rd and my impression, after explaining the preceding to the agent, was that she’d go ahead and put it through. I made clear that I was thrown off by the word “exhausted.” She added that as soon as I received a claim form in the mail to fill it out and send it back ASAP. I agreed.

Then, on Jan. 5th, I received a bulky letter from EDD stating, “You are not eligible to receive benefits under California Unemployment Insurance Code Section 1253A beginning 11-13-11 and ending 11-26-11 (two weeks) because “you did not show…good cause” for returning the claim form late. If further stated that I had the right to appeal this decision.

Having set up the scenario in tedious detail, I have the following questions:

1) I honestly feel that EDD misled me when they wrote me I had “exhausted” my claim benefits. (Remember, I had never received such an alert before (I have all my stubs to prove it).

2) The agent with whom I spoke told me in essence that I had satisfied her questions and that she would Release the money. None was forthcoming.

3) I have at least 20 more weeks of UI (according to the agent). Why have I not received any claim forms for December, 2011? EDD now owes me $2700 and I haven’t seen a dime.

4) Do I have to go through the whole adjudication process on something as simple as this? After all, they told me I had no more money coming—that’s the only reason I didn’t return the claim form right away. I finally did return it—late—with the belief that there was a misunderstanding and that they sent it to me in error. But I wanted to double-check.

5) What do you recommend I do to get the UI (not just the two weeks, but all of December)?

Thanks in advance,
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. Let me answer each of your inquiries separately:

1) I honestly feel that EDD misled me when they wrote me I had “exhausted” my claim benefits. (Remember, I had never received such an alert before (I have all my stubs to prove it).

Language that the EDD uses in a denial letter would typically not serve as a basis for a law suit, even if you found it confusing. However, it can be used in an appeal as a reason justifying your failure to immediately respond and re-file your claim. It's my understanding that the EDD is now refusing your claim on this basis.

2) The agent with whom I spoke told me in essence that I had satisfied her questions and that she would Release the money. None was forthcoming.

Again, unfortunately, the EDD would typically not be bound by the statement of an agent in this circumstance. The agents have limited authority and sometimes make mistakes. If they were held accountable for every incorrect thing that they said, this would conceivably become a giant loophole in the administration of benefits. (i.e., "if it can't be done, simply say an agent told you it could be")

3) I have at least 20 more weeks of UI (according to the agent). Why have I not received any claim forms for December, 2011? EDD now owes me $2700 and I haven’t seen a dime.

It is only speculation, but it would seem as though the EDD stopped sending you forms because they believed you were no longer eligible to receive benfits once you failed to timely submit the first form.

4) Do I have to go through the whole adjudication process on something as simple as this? After all, they told me I had no more money coming—that’s the only reason I didn’t return the claim form right away. I finally did return it—late—with the belief that there was a misunderstanding and that they sent it to me in error. But I wanted to double-check.

Yes, you must follow the EDD procedure to correct this error, if in fact an error has occurred.

5) What do you recommend I do to get the UI (not just the two weeks, but all of December)?

An individual in this circumstance would typically need to file a first level appeal. For information on how to do so, visit this link: http://www.edd.ca.gov/unemployment/First_Level_Appeal.htm

Note that you must act quickly to file an appeal within the required time limit. For information regarding EDD appeals more generally, visit this link: http://www.edd.ca.gov/unemployment/FAQ_-_Appeals.htm

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: 6738
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Oops-- one more question: if you were me, would you just kiss off $900 rather than try to get EDD to change their mind? Money, as you know, is scarce, and to deny someone who is basically living hand-to-mouth that much money is really quite a blow. I guess they don't really care.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you for your followup. The rules of Just Answer prohibit me from advising you on what to do--I can "just answer" questions about the law. That said, if it were me, I would do everything possible to obtain benefits owed to me, especially given the limited finances I would already have as an individual collecting unemployment.

I wish you the very best.
Customer: replied 2 years ago.

Hi again,

 

If I have additional questions (I know, I should have waited before I clicked the Accept button). Can you answer or do I need to start a new question? Or can I append money (say $10) to the original question? Thank you

Expert:  Patrick, Esq. replied 2 years ago.
New questions are supposed to be asked in separate posts according to site rules. Also, this is typically a courtesy to the expert, who makes the decision to answer a question (considering how much time and effort it will take to answer) based on the content of the initial inquiry.

That said, since you are evidently a repeat customer with a great track record of accepting answers, I would be happy to assist you with some brief followup as part of this question.

You may also want to consider becoming a subscription customer. Subscription customers are not charged "by the accept" or by the question. It's just a flat monthly rate. I can direct you to customer service for that purpose, if you'd like.
Customer: replied 2 years ago.

Thank you for your generosity. I'm really worried about this and sometimes it's hard to decipher EDD and their rules.

 

I found this online re the timeliness period and wondered if it could pertain to me.

 

The department shall, at the request of the claimant, extend the period prescribed for the filing of a new, additional, continued or reopened . . . claim . . . if the department finds that the failure of the individual to file any such claim . . . within the prescribed time was due to good cause, including, but not limited to, any of the following:

 

(A) He or she acted reasonably in informing the department of pertinent facts and of the need for specific advice as to his or her rights and duties.

 

(B) The department's advice was intended by the department to be the basis of his or her conduct or he or she reasonably believed the advice was so intended, or he or she reasonably relied upon the department which failed to provide advice reasonably necessary to the protection of his or her rights or the understanding of his or her duties.

 

(C) He or she was not aware that the department's advice was misleading, incomplete or erroneous, or through no fault or inexcusable neglect on his or her part was not aware of the true information concerning his or her rights or duties.

 

(7) Mistake, inadvertence, surprise or excusable neglect. However, "good cause" does not include negligence, carelessness, or procrastination, in the absence of circumstances excusing these causes for delay.

 

It would seem that informing me that my claim was "exhausted" would come under the heading of misleading info because it wasn't exhausted at all.

I also sent an email to EDD on 12/17 asking for clarification of my claim status. Would this count as evidence that I was being vigilant? (and that I wasn't procrastinating or being careless) (They responded on 12/23 but I emailed it 12/17--it took them a whole week to respond, which added to the lag time)

(7) Mistake, inadvertence, surprise or excusable neglect. However, "good cause" does not include negligence, carelessness, or procrastination, in the absence of circumstances excusing these causes for delay.

 

As I said, I have been receiving UI for three years and never once have I been late in mailing my claim form. Surely that should count for something and indicate I am conscientious and certainly not negligent or a procrastinator.

 

I plan on including these points in my appeal letter. Do you see anything that I should leave out?

 

BTW, the info I got is here: http://www.edd.ca.gov/uibdg/Miscellaneous_MI_10.htm

 

Thank you

Expert:  Patrick, Esq. replied 2 years ago.
I think all of this certainly makes a very good case that your failure to timely file for the extension was excusable and reasonable. Whether or not the department's advice was "misleading" and whether or not you were "negligent" or "careless" if failing to file are questions of fact, meaning that ultimately it would be up to an administrative law judge to determine, on the facts specific to your situation, whether the above exception to timely filing would apply.

I cannot predict how an ALJ would actually rule on this issue; however, it would seem that you have a very reasonable case that the statements made to you were misleading and that your reliance upon them was reasonable, given the particular circumstances of your situation and the fact that you had always been vigilant in the past.

I sincerely XXXXX XXXXX this helps clarify, and again I wish you the best of luck in resolving this matter favorably.
Customer: replied 2 years ago.

I received four Claim Forms in the mail today-- not one for the late claim, bringing me up-to-date. Not the late one in Nov. but I recall the EDD rep said that if I didn't receive compensation for those two weeks, that they'd append it to my next extension-- words to that effect.

 

You've been terrific and I thank you for your wise answers. :)

Expert:  Patrick, Esq. replied 2 years ago.
I'm so glad that I've been helpful. If you have any questions involving CA employment law in the future, feel free to request me by beginning your question "To LegalPro54"

Enjoy your weekend.

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