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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4999
Experience:  Extensive experience representing employees and management
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I moved to San Diego, CA from AZ this past summer. I have had

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I moved to San Diego, CA from AZ this past summer. I have had a few different jobs here that haven’t worked out for one reason or another. I finally decided to file for unemployment back in Feb. -took forever because I was claiming income from 2 different states and one CA employer had miss-reported my earned wages (I had already received my W-2 so I knew for sure).
On top of that, the day I filed I started a Temporary/Seasonal position for a company that was to last approx. 9 days (part-time) in preparation for and anticipation of a busy Valentine’s Day. I worked for one week-until 2 days before V-day. I was sent home early several times due to lack of work. The last day I only worked about 2 hours. Then the day before V-day, I received a voice message saying they were slower than expected and not to come in. Same thing on V-day.
So I receive a letter from EDD scheduling a phone interview concerning my eligibility for Unemployment. Benefits because my last employer reported my discharge was due to misconduct. During the interview, I explained all this and asked how I was supposed to disprove what the employer had said. She told me that previously the employer had said I was warned of my behavior and sent home one day, then the next day I was fired for repeating the behavior. She would request witness statements from the place of employment and if they confirmed the previous accusations my benefits would likely be denied. Which they consequently were. I think I am also "disqualified" from receiving benefits at all for a period of time for "providing false information"!
I realize "Right to Work" says they can fire me any time for any reason... I just feel like the company should bear the burden of proof when their reasoning behind a discharge is being disputed, just as the Accuser or Plaintiff would have to in court. Whether or not they fired me isn't even the issue, it's their so-called "reason". I have no way to prove my side of the story...all they would have had to do is have me sign some sort of "write-up" or "citation" when they supposedly warned me the first time or 2nd time. If it's their word against mine then why is theirs believed over mine? What ever happened to "Innocent until proven guilty"?! I am allowed to file an appeal but I'm not sure what else I can do... Does the voicemail have any proof value? ...are they allowed to tell me business is slow, but then document it as if they fired me for misconduct?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Fran-mod replied 2 years ago.
Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a professional to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 2 years ago.
Yes I am still waiting for an answer... Your help would be much appreciated!
Expert:  Fran-mod replied 2 years ago.
Sometimes, finding the right professional can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.
Expert:  Fran-mod replied 2 years ago.
Thank you for your patience, your business is very important to us, we are waiting on the Expert with the right expertise to come online. Feel free to let us know if you would like us to continue searching for a professional or if you would like us to close your question. Thank you for your understanding!
Customer: replied 2 years ago.
Yes I still need some expertise...
Expert:  Joseph replied 2 years ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Unfortunately, if your employer does have proof that you were terminated due to misconduct and not through no fault of your own, then you can be denied benefits due to that reason.

Unlike a criminal case, the employer only needs to demonstrate through a preponderance of evidence that you were terminated for misconduct.

While there is a presumption that you weren't terminated for cause, your employer can rebut this presumption throuh demonstrating that you were terminated for misconduct, which it seems like your emploeyr can do in this situation.

Customer: replied 2 years ago.

So the manager's story counts as proof? She doesnt have to provide any kind of documentation or anything?

Expert:  Joseph replied 2 years ago.
Yes, EDD can decide that the manager's statement is enough proof that you were terminated for misconduct, but, most likely, it would need to be bolstered by other statements from your employer or fellow employees, or evidence that you had been written up in the past for misconduct.
Customer: replied 2 years ago.
Well, I only worked there for a week! Was supposed to be 9 total days (not working every day...) of which I worked 7. So I wouldn't be able to get any witness statements (for an appeal) from anyone b/c I didn't really have time to get 2know anyone...
Also u didn't address the other issue--different employer misquoted my total earnings to EDD--I have the W2 to prove it. Is there a way to force them to show what days/shifts they have documented as me working? All the paychecks I got from this employer were missing hours--I'd show them (I always keep track) and they would supposedly be added to the next check. But of course I'd recheck...etc. Anyway, I show up to work 9/24 to work a shift-the very surprised looking manager says "Oh yeah, were gunna have to let u go"--the reason was b.s. so after few days I talked him into taking me back-or so I thought. He said ok come in tomorrow (Friday) at 2 (my normal shift for the past month had been 2-8p M-F). Instead of the next girl coming in @8, a NEW girl showed up about 5:30 saying she'd told the mgr she couldn't make it at 2. I texted the mgr who said I was done for the night. I called and texted for the next 2-3 weeks never receiving ANY response. I finally went in 2pick up my check
Expert:  Joseph replied 2 years ago.
Unfortunately, unless you can prove that you weren't terminated for cause, the fact that your emploeyr misrepresented your earnings to EDD wouldn't be material.

However, if you are granted benefits, you could supply proof of your earnings to EDD in order to receive the correct benefit amount.
Customer: replied 2 years ago.

Relist: Incomplete answer.

 

I moved to San Diego, CA from AZ this past summer. I have had a few different jobs here that haven't worked out for one reason or another. I finally decided to file for unemployment back in Feb. -took forever because I was claiming income from 2 different states and one CA employer had miss-reported my earned wages (I had already received my W-2 so I knew for sure).

 

On top of that, the day I filed I started a Temporary/Seasonal position for a company that was to last approx. 9 days (part-time) in preparation for and anticipation of a busy Valentine's Day. I worked for one week-until 2 days before V-day. I was sent home early several times due to lack of business, sometimes after only a 2-hour shift. The day before V-day, I received a voice message saying they were slower than expected and not to come in. Same thing on V-day.

 

So I receive a letter from EDD scheduling a phone interview concerning my eligibility for Unemployment. Benefits because my last employer reported my discharge was due to misconduct. During the interview, I explained all this and asked how I was supposed to disprove what the employer had said. She told me that previously the employer had said I was warned of my behavior and sent home one day, then the next day I was fired for repeating the behavior. She would request witness statements from the place of employment and if they confirmed the previous accusations my benefits would likely be denied. Which they consequently were. I think I am also "disqualified" from receiving benefits at all for a period of time for "providing false information"!

 

I realize "Right to Work" says they can fire me any time for any reason... I just feel like the company should bear the burden of proof when their reasoning behind a discharge is being disputed, just as the Accuser or Plaintiff would have to in court. I have no way to prove my side of the story, I didn't even work there long enough to make contacts with coworkers to be able to collect my own witness statements...all they would have had to do was have me sign some sort of "write-up" or "citation" when they supposedly warned me (they told EDD I had been warned and sent home early on numerous occasions b/c of this misconduct). If it's their word against mine then why is theirs believed over mine? What ever happened to "Innocent until proven guilty"?!I am allowed an appeal but I'm not sure what else I can do... Does the voicemail have any proof value--or are they allowed to tell me they're just not busy enough, but then document it as if they fired me for misconduct?

 

~~Also, the issue with the other employer misreporting my earnings was resolved against me as well, and I even have the W-2 as proof! I don't have a way of proving my dates of employment with them because I didn't clock in/out or have time-slips (other than my own hand-written records keeping track of my hours worked). I assume they must have this information in their systems somewhere for payroll purposes but chose (?) not to provide it to EDD.} Is there a way to force them to show what days/shifts they have documented as me working? All the paychecks I got from this employer were missing hours--I'd show them (I always keep track) and they would supposedly be added to the next check. Nevertheless, of course I'd recheck...etc. Anyway, I show up to work 9/24 to work a shift-the very surprised looking manager says "Oh yeah, were gunna have to let u go"--the reason was b.s. so after few days I talked him into taking me back-or so I thought. He said ok come in tomorrow (Friday) at 2 (my normal shift for the past month had been 2-8p M-F (+Sa & Su)). Instead of the next girl coming in @8, a NEW girl showed up about 5:30 saying she'd told the mgr she couldn't make it at 2. I texted the mgr who said I was done for the night. I called and texted for the next 2-3 weeks never receiving ANY response. When I realized my efforts were futile and they had just used me to cover a shift last minute, I went in to pick up my check. They said they'd mailed it after about a week. Unfortunately, I had recently moved and my former landlord was being uncooperative. I figured, "Whatever, I'm sure it was for the wrong amount anyway," and proceeded to explain to the woman in payroll how many hours I was still owed including some overtime. It took about another week to get a hold of her on the phone and catch her in person to pick up the check. So, even though my last day of work was 9/29 this last check stub states "Ending Date: 10/25/11; Check Date: 10/28/11" which is how I assume the misreporting happened.

 

I'm wondering 2 things about this situation: 1.) Do I have a monetary claim against this company according to Cali. Labor Code concerning how an employer is supposed to allocate an employee's "final paycheck"? 2.) Is there a way to formally request/demand documentation of my dates of employment--specifically, shifts or at least dates of shifts worked?

 

{My EDD claim was to use wages from a public school job which wouldn't pay over summer, so I do need this employer's wages to be correctly documented in order for me to collect--assuming obviously that I get approved for benefits at some point...}

Customer: replied 2 years ago.

(last message sent before I finished writing it...)

 

I called and texted for the next 2-3 weeks never receiving ANY response. When I realized my efforts were futile and they had just used me to cover a shift last minute, I went in to pick up my check. They said they'd mailed it after about a week. Unfortunately, I had recently moved and my former landlord was being uncooperative. I figured, "Whatever, I'm sure it was for the wrong amount anyway," and proceeded to explain to the woman in payroll how many hours I was still owed including some overtime. It took about another week to get a hold of her on the phone and catch her in person to pick up the check. So, even though my last day of work was 9/29 this last check stub states "Ending Date: 10/25/11; Check Date: 10/28/11" which is how I assume the misreporting happened.

 

I'm wondering 2 things about this situation: 1.) Do I have a monetary claim against this company according to Cali. Labor Code concerning how an employer is supposed to allocate an employee's "final paycheck"? 2.) Is there a way to formally request/demand documentation of my dates of employment--specifically, shifts or at least dates of shifts worked?

 

{My EDD claim was to use wages from a public school job which wouldn't pay benefits over summer months, so I do need this employer's wages to be correctly documented in order for me to collect over summer--assuming obviously that I get approved for benefits at some point...}

 

 

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