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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33506
Experience:  Retired (mostly)
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Good Morning ~ You answered a question for me 1/4/2012.

Resolved Question:

Good Morning ~
You answered a question for me 1/4/2012. I am the insurance adjuster who substitute teaches. As I mentioned I substitute teach for 2 school districts A and B. School district A protested my unemployment benefits and after the telephone interview with the EDD rep, the EDD ruled in my favor. School district A then appealed the decision and an appeal hearing is pending. The date has not yet been set.

As you mentioned my objective is to win this hearing so I want to prepared in advance. Let me give you some facts about this case. School district A calls the subs they DO NOT use an automated system. On the day I learned they were protesting my benefits I contact 2 of the women that call subs (there are a total of 4 women that call subs, and at one time or another, I have spoken to all of them)I also reached the risk manager who s/w the EDD rep. I asked all 3 people that day the same question. 1) Do you keep records of the day and time I rejected a job offer? They all stated no, they do not keep specific records. One of the women explained that they have a sub list of approximately 50 subs and they call about 20 on the list each week. I have been working in a class for this district and received a call asking if I could sub that day. So, they seem to lack proper documentation and congruency. What is a good way to articulate this?

From reviewing the CUAIB site my job will be to prove with documentation that I did not decline a job offer 1257B, was able and available for work 1253C, and that I did not willfully misrepresent the facts 1257A. I want to start organizing my documentation and start getting my thoughts organized.

Should I pull my phone records showing that I called the district inquiring about work? Bring payroll stubs from school district B providing evidence that I work for school district B and that I have decline some jobs offers with school district A because I was working for school district B. Should I show the dates I worked for school district A and B or only A? I will bring documentation that I had interviews. Should I bring documentation showing illustrating job search efforts? Or is that too much information? I am assuming that the district will not bring the actual employees that I spoke with regarding job offers but will bring statements. Can I use the Hearsay rule?

I understand that I do not have to present evidence that is not in my favor per the CUAIB. The tough part is preparing for this hearing is how much do I include and how much do I say? I can be cross examined in this hearing and I know that I have a tendency to offer too much information. Just how short do I keep my answers w/o sounding like I'm avoiding a question?

Much thanks!
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
Hi,

Thanks for requesting me personally. However, please note that unless you actually use my userid ("socrateaser") in the title of your question, then another expert may jump in and answer. The fact that you direct the question me using the system options only locks the question until it times out. After that, anyone can answer.

That said, I have to run to an appointment, and I will get back with you later today or this evening.

Thanks for your understanding and cooperation.

Customer: replied 2 years ago.
No worries. Thanks. I wil make it a point to useCustomerin the title from now on.
Expert:  socrateaser replied 2 years ago.
[T]hey seem to lack proper documentation and congruency. What is a good way to articulate this?

A: The elements of the able and available issue are: (1) you were offered work; (2) you turned down the work offered; and (3) you did not have good cause for turning down the work offered. You must defeat at least one element to win this issue. So, if the school claims it called you, then you ask the school rep what docmentation it keeps to support the fact that it called you. If the rep said, we don't have documentation -- we just have a list, and we work through it until someone accepts the work. Then you say something like, "So, it's entirely possible that you skipped over my name on the date in question and never called me, correct?" Presumably, the answer to this question is "yes," because the rep has no documentation to support having contacted you. And, that would defeat element #1.

The point here is that using collateral arguments about the school's lack of documentation is only relevant if it resulted in your not being contacted and offered work. Otherwise, if it's esstablished that you were contacted, then it falls to you to explain why you didn't accept the assignment.

Should I pull my phone records showing that I called the district inquiring about work?

A: If your are claiming that you contacted the school and you were told that no work was available on the date in question, then proving that you called is probably useful evidence. Ultimately, however, what matters is whether or not you can prove that you were denied work, and that's mostly about the school's lack of documentation, rather than yours (because your documentation about what you did is self serving and has little evidentiary weight).

Bring payroll stubs from school district B providing evidence that I work for school district B and that I have decline some jobs offers with school district A because I was working for school district B.

A: If you reasonably believed that you would be working for school district B on the day in question, then evidence of your working for district B would be useful.

Should I show the dates I worked for school district A and B or only A?

A: Evidence is only relevant if it tends to prove or disprove an ultimate fact at issue before the court. You have to compile your evidence to meet the elements of proof necessary to win on the issue. Submitting evidence that doesn't go to prove a particular element is a waste of time. It may be useful to show that you were receiving substantially more work from district B, which is why you turned down work in district A, because you were expecting to be working in district B on the date in question. However, this is only viable if you have already admitted to having turned down work for district A. If not, then it doesn't matter which school you've been working for.

I will bring documentation that I had interviews. Should I bring documentation showing illustrating job search efforts?

A: If the goal is to show that you had a specific reason for turning down work on the date in question, then yes, otherwise it's irrelevant.

I am assuming that the district will not bring the actual employees that I spoke with regarding job offers but will bring statements. Can I use the Hearsay rule?

A: In an administrative law hearing, "all relevant evidence is admissible, unless its probative value is substantially outweighed by the risk of unfair prejudice." In plain English, if a particular piece evidence or testimony is relevant, then it comes in the record, hearsay or not, unless you can show that it is so untrustworthy that admitting it would cause the court to make a decision based on wild assertions.

However, even if hearsay evidence is admitted, it cannot be used in isolation to make any finding. Hearsay can only be used supplement nonhearsay testimony or other evidence. Example:

1. School rep states that you were called, and then offers the statement of the caller, who is not present at the hearing. That statement is hearsay, but it's being used to supplement the rep's statement that you were called.

2. Now, suppose that the rep doesn't state that you were called, but only states that he/she has a sworn declaration from the caller stating that you were called.

The first example can be used to find that you were called. The second example cannot, because (believe it or not), the second example does not supplement the rep's testimony.

Evidence law can be damn difficult (easy for me, because I can make up examples to show you how things work. -- in the midst of a hearing, there are probably only a handful of judges in California would would catch the distinction that I've just described, and probably just as few attorneys.

I understand that I do not have to present evidence that is not in my favor per the CUAIB. The tough part is preparing for this hearing is how much do I include and how much do I say? I can be cross examined in this hearing and I know that I have a tendency to offer too much information. Just how short do I keep my answers w/o sounding like I'm avoiding a question?

A: You can say, "yes," "no" or "I cannot recall." And, of course you can refuse to answer on grounds that your answer may tend to incriminate you (but, pleading the 5th Amendment in a UI hearing would be quite unusual -- I'm just adding it to be thorough).

You don't have to expand on any question. It's up to the questioner to try to elicit the answers.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 2 years ago.
I'm running today let me get back to you on this. I have a few more questions. Thanks.
Expert:  socrateaser replied 2 years ago.
I understand.
Customer: replied 2 years ago.
It perplexes me that in the state of California declining one or two days of substitute teaching can cause me to lose "all" of my unemployment benefits. There seems to be something wrong with that. Any prudent reasonable person would be looking for full time employment and therefore need to decline some work for interviews etc.

I feel like I'm damned if I do and I'm damned if I don't. I didn't keep records until Nov of last year so I don't know what days they are saying I refused work. It was suggested to me that I certify a letter to school A requesting the days they allege I declined work. At least then I feel i could better prepare for this hearing. Or is that just futile? Your thoughts? Or am I just expected to be able to defend myself and bring all of my records for the ALJ and school A to peruse possibly shooting myself in the foot? Because they will probably be doing everything they can to avoid paying unemployment benefits out of their reserve account.
Expert:  socrateaser replied 2 years ago.
The employer has the burden of proof -- you need only defend. You can't force the employer to produce any evidence prior to the hearing, without a subpoena duces tecum or notice of production issued by the ALJ.

Contact the office where your case is to be held and ask for a notice of production or subpoena form for the hearing. Then, you can fill it in with what you want and have it served on the school administration. They will have to produce the records.

If you don't have sufficient time to get the records prior to the hearing, then you can ask the ALJ to continue the hearing to a new date so that you have time to obtain the records and consider the evidence.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 2 years ago.
Thank you. I will be at the office in the am for the wage hearing and will request the records in the file at that time. If the file lacks sufficient evidence I will serve the subpoena. Precedent Benefit Decision No. P-B-490 Case No. 98-15028 on the CUAIB site appears to re-aalocate the burden of proof back to the claimant, ie, the burden of proof is generally on the claimant to show his/her availability for work (Sanchez v Unemployment Board (1977) 20 Cal.3d55)
Expert:  socrateaser replied 2 years ago.
The burden is on the employee only after the employer proves that it offered work. If the employer has no records of offering you work, then the testimony of the employer's rep is without any personal knowledge and based upon no evidence -- not even hearsay. That means there is no evidence in the record to prove you were offered work and therefore you have no burden to produce any evidence of availability or good cause for refusing work.

Hope this helps.
Customer: replied 2 years ago.
Good Morning ~

And that brings me to a question "when school A leaves me a message for work and I call them back at my lunch beak or asap (I cannot answer my phone while teaching) does that constitute a job offer? By the time I get a chance to call back they have worked down the list and given the job to another teacher. And they give the job away almost immediately. I only have a cell phone and it is not glued to my hip. I do check my messages through out the day.

Another question - school A hired me for the greater chocolate area that includes vanilla and strawberry but then they want me to travel to orange and lime which is approx 30 miles from my home. Do I have an obligation to accept the jobs in the city of orange and lime because it is suitable work? And he job may be for only half a day.

Another question - school A calls me yesterday and leaves a message stating I have a "few hours" of work for you next week. Do I have an obligation to accept a "few hours" of work when I could possibly get a full day of work with school district B next week?

Thank you for your help it is very appreciated!
Expert:  socrateaser replied 2 years ago.
And that brings me to a question "when school A leaves me a message for work and I call them back at my lunch beak or asap (I cannot answer my phone while teaching) does that constitute a job offer? By the time I get a chance to call back they have worked down the list and given the job to another teacher. And they give the job away almost immediately. I only have a cell phone and it is not glued to my hip. I do check my messages through out the day.

A: An offer (whether for employment, or based upon any other contract law theory) is revocable at the will of the offeror. So, if by the time you are able to accept the offer of employment, it has been revoked by the school, because the job was taken by someone else, then you did not, as a matter of law, receive a bona fide offer. Obviously, if you disable yourself from accepting, so that you can avoid work, then that would change the outcome here. But, in general, I don't see the ALJ holding you liable for an offer that you were not in a position to accept due to circumstances beyond your control.

Another question - school A hired me for the greater chocolate area that includes vanilla and strawberry but then they want me to travel to orange and lime which is approx 30 miles from my home. Do I have an obligation to accept the jobs in the city of orange and lime because it is suitable work?

A: See BDG SW150(D). This is a judgment call. AXXXXXbetween Long Beach and Studio City at 9:00 PM is no big deal. The same drive at 6:30 AM will take an hour and a half.

Another question - school A calls me yesterday and leaves a message stating I have a "few hours" of work for you next week. Do I have an obligation to accept a "few hours" of work when I could possibly get a full day of work with school district B next week?

A: Another judgment call. The issue, in my opinion, is whether or not there is a reasonable likelihood that you will be offered full day work with district B, or whether that's wishful thinking. You have to make these arguments based on whether or not they are actually asserted by the employer.

Trying to predetermine every possible argument would require a 50,000 word dissertation. At some point, you have to decide that you've covered the major possibilities, and do a little hand waiving if something else appears at the hearing (e.g., "Your honor, the employer is raising an issue that is so trivial that it is not worthy of the board's consideration." The legal term is "de minimis non curat lex" (lat. trans. "The law does not concern itself with trifles.").

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 2 years ago.
:) agreed. I contacted the ALJ office and they stated I cannot request a subpoena until the hearing date which may not give me enough time to get the records. They are going to have a judge call me back.
Expert:  socrateaser replied 2 years ago.
You can ask for a continuance, so that you have time to consider the employer's records.
Customer: replied 2 years ago.
I am considering requesting a copy of my personnel file from the school district. It is my understanding by law they are required to provide it?
Expert:  socrateaser replied 2 years ago.
An ordinary request will take longer than would a subpoena. You could just add it to your subpoena request form.

Hope this helps.

Customer: replied 2 years ago.
And if the judge denies the subpoena?
Expert:  socrateaser replied 2 years ago.
socrateaser, Lawyer
Satisfied Customers: 33506
Experience: Retired (mostly)
socrateaser and 2 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Just read it - I'm not being charged in a criminal offense so I guess I'm entitled to it. I will give your brain a break from me for a while :) but will be in touch.

Thanks :)
Customer: replied 2 years ago.
Hi ~
I just had a conversation with Judge Jones from the ALJ office. He said he would send me a copy of the file but they would not send the school district a letter to produce until the hearing date is set. He also said that they would not send the information to me prior to the hearing. I advised him I contacted the school and asked for the dates and times they say I rejected work and they do not have it? He said the burden of proof is on them and he does not think I should request a letter to produce. He said wait until the hearing and if they bring dates and times then you can ask for a continuance as you were not given the information prior to the hearing and will need a chance to secure my documentation.

Maybe I'm over thinking this. He read what the school alleges - I don't accept much work - not true they give the job to someone else asap - I don't want to work at certain schools - not true - I may have mentioned I did not feel comfortable going back to the school where the parent went ballistic. It doesn't sound like they have much to go on.
Expert:  socrateaser replied 2 years ago.
The judge provided you with legal advice, intended to improve your position over the employer. Doing this may have violated a half dozen different judicial ethical canons, any one of which could get the judge removed from his job.

You may as well advantage of that and do as the judge suggests. Especially since if everything were to go down as suggested, the employer would probably not return to fight again, because it's too time consuming. A continuance could work strongly to your advantage.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 2 years ago.
I did not use his real name as I am sure you are aware but an alias to protect his identity as Jones is a common name. Defending myself w/o clarification of the dates the school is alleging I refused work is futile. I appreciated the clarification on the appeal process as the average layperson has no idea how the appeal process works.
Customer: replied 2 years ago.
Good Morning ~
I received the documentation from ALJ office and the information the school is alleging. She states that I don't accept many job offers, don't like certain schools and thinks some are too far. I pulled my phone records - for example the month of Sept - I worked for them 2 days that month - the 8th and 9th and after that they called me once. I called them 3 times inquiring about work.

Doesn't like certain schools - I have only articulated that I do not feel comfortable subbing for the teacher where the parent went ballistic - I did not feel safe in that situation. Should I even bring that up or just keep my mouth shut?

Thinks schools are too far - I pulled my record and taught at a school 35 miles from my home - round trip 70 miles - the commute each way is about 45 minutes. Sometimes the 70 miles commute if for a 1/2 day. They usually give me short notice and if I'm in orange county at an interview that makes the commute time about an 1.5 - 2 hrs. I don't even think they hired me for those areas. I've also subbed several times in other areas that are far from my home which I can show. I would much prefer to sub for school B though since ALL of their schools are within a 10-20 miles radius. Is it even reasonable to expect a sub to drive 45 minutes one way for a 1/2 day pay?

Then she added that I'm in the school directory with school B (I told her I sub for 2 schools) and went onto say that I may be "earning money with them". All of my wages with both schools have been reported accurately.

We've talked about the burden of proof is on them. They only way they can show I've turned down work is providing phone records, dates and times I turned down work, and their testimony. They don't have dates, or times and their phone records are not going to show that they have called me as much as they allege. What is the ALJ going to be looking for from me? Besides that I have been interviewing and feel compelled to find full time work?

If she brings up that I "may not be reporting all of my wages" should I ignore that or confirm with the judge that all of my wages have been reported correctly, although that has nothing to do with the complaint?

We talked about asking for a continuance if they start pulling out dates and times. Can the ALJ refuse a continuance?

Finally - what are the elements of a closing statement? And what makes a closing statement effective?

Much Thanks.

Expert:  socrateaser replied 2 years ago.
Please open a new Q&A at the justanswer.com home page.

Customer: replied 2 years ago.
I know that some of my questions are redundant. If you would like me to work with another expert I understand.

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