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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5221
Experience:  Extensive experience representing employees and management
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Could you tell me about CA state laws about being denied unemployment

Customer Question

Could you tell me about CA state laws about being denied unemployment sect 1256 (breaking a rule concerning the use of a time clock) I plan on to appeal with this letter and was wondering if the decision could be reversed. Or if there is anything else I need to know? I disagree with the Departments decision dated 8/28/2012 because:

When I first started working at the xxxxx , we swiped in and out on a time clock with our xxxxx ID cards. This was a hassle free system that worked virtually all the time. When it came to use of the time clock, they gave us a 6 minute grace period...anything over 7 minutes and we were considered late. So let’s say one arrives at 6:05 pm for a scheduled shift at 6, they would still be ‘on time’ and paid for that quarter hour. But if one arrived at 6:09 they would be considered late and would not get paid for that quarter hour. The point is, 6:05 was equal to 6, and 6:09 was equal to 6:15. We were never paid by the exact minute. Then a few years ago came the finger scanners to punch in and out. These did not work well. Most of the time my finger wouldn’t scan, so I couldn’t punch in and out. I was not the only one. The problem was so bad that our managers just left out a daily sign in and out log that sat out in front of the room service time clock. My management never made it clear to me that I needed to sign in and out at the exact minute that I started and stopped working. They even signed me in and out many times without asking me exactly what the time was that I arrived or left, as sometimes work was so hectic and the hours were so mixed up they would just even it out where it made sense. The times I did sign in and out I would round off just like they did for payroll.
Another huge issue was overtime. The company always tried to avoid paying overtime even if it meant hurting the business and the guests because “money was tight.” On many occasions I would work overtime and would be signed out by management or myself earlier than I actually left so they didn’t have to pay overtime. They told me they would make it up to me later by “adding the overtime onto the next days time clock sheet.” Most of the time I would let it go and not be paid. On many occasions I would look at my paycheck and notice a whole day of work missing. This past year on Mother’s Day for example, I’m a mother and came in that day and was never was even paid for it! (Please see WMS time-sheet attached). Also, many times my lunch break was after the 5 hour legal cut off (because the bar was so busy I had no time to take a break, and this happened on a lot especially on weekends when I was cocktailing all alone!) and I would be signed in and out by my management before the 5 hour break exception so they would not get in trouble for it. I also rarely received my 10 minute breaks. I know they are unbelievably understaffed so I accepted it and continued to work hard, many times 6 days a week...because I am truly a company oriented person and tried to help relieve the stress that my immediate supervisors had concerning overtime and break exceptions. I was a manager at an extremely busy bar for 16 years and I completely understand what they were dealing with from upper management. I loved the bar and the hotel so I had no problem giving them extra time.
So, after years of punching in and out with a grace period of 6 minutes, all of the finagling of signing in and out incorrectly by my management and myself to avoid break variances, overtime, and anything else that was not “legal in the handbook”, it’s safe to say I was completely blindsided by all of this. Not only was all of this going on without consequence, I was never reprimanded, written-up, or even told that I needed sign in and out to the exact minute or I would lose my job.
I have an excellent and well-known work ethic (of which I also practiced for my last employer of sixteen years before I started working at the xxxxx) and I assured them that this would never happen again (now that I knew the importance).— I would make sure of it Since human resources were the ones who brought me into the office on this issue and not my immediate supervisors, I asked HR to ask my managers about my work ethic and how much extra unpaid time I put in (this includes completely organizing, cleaning and alphabetizing the entire bar stock room, putting together a 14 page requisition sheet, making seating charts for the entire Lobby Bar and for the biggest event of the year, the Long Beach Grand Prix, and graphically designing table tents for the Super Bowl, all on my own time!) I also asked HR to inquire about all my unpaid or volunteer overtime. I wanted them to know how much I gave to the xxxxx not just what HR saw on pieces of paper. They ended up firing me anyway (with regret) for the very same things my management carried out on a day to day basis without concern. HR also stated that they would not give any bad references to an inquiring employer. Now I am without my job and without the lifestyle I’ve achieved working so hard for the past 30 years that I am very proud of. I have been an excellent, loyal, extremely hard working employee for the xxxxx for 5 years. I truly think HR was not given all the facts and this dismissal is not warranted. Below is a list of people who can verify my statements first hand.

Jonathan Chretien: XXX-XXX-XXXX
Leslie Ross: XXX-XXX-XXXX ext:6406

Thank you for your time,

Xxxx xxxxx
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Joseph replied 2 years ago.
Hello and welcome to JustAnswer.

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

Are you aware if you did 'technically' break the employee rule regarding the time clock, even though you did not do so intentionally?
Customer: replied 2 years ago.

If my managment is showing me that it's okay to be a few minutes off when signing me in and out, how am I supose to know what the rules are. I was never written up or repromanded for 2 years. Keep in mind that I worked alot more than I got paid for, and my time variances of the 3 times that were less 6 minutes did not affect my pay. Also could you tell me if the employer has changed some of the rules and did so without changing the original employee handbook doesn't it make the original null and void?

Customer: replied 2 years ago.
Relist: Incomplete answer.
I need to know if there is a loophole or ca state law that could help me get my unemployment. If the company changes the rules in the employee handbook doesn't he have to update it and if they don't doesn't it make the original handbook null and void?
Expert:  Joseph replied 2 years ago.
Hello and welcome to JustAnswer.

You definitely have a good case that even if you did allegedly violate an employer's rule, that the rule that you violated was not 'reasonable,' since you had previously been informed by management and shown that it was okay for you to be a few minutes off when signing in and out.

I think your letter will be helpful as the basis of appeal. You would then have an administrative hearing scheduled, where your employer would have the burden to demonstrate that you were terminated for misconduct and not through no fault of your own and that the rule that you allegedly violated was 'reasonable.'

Also, you should file a wage claim against your employer for the amount in overtime you didn't receive and the breaks that your employer required you to work through.

You can file a wage claim using the forms available online here:

http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
Joseph, Lawyer
Satisfied Customers: 5221
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.


What does it mean when you say "demonstrate that you were terminated for misconduct and not through no fault of your own and that the rule that you allegedly violated was reasonable".?

Expert:  Joseph replied 2 years ago.
In order to be ineligible for unemployment benefits you need to be terminated for misconduct and not through no fault of your own.

One of the reasons that you can be terminated for misconduct is if you 'violated a reasonable employer rule.' So your employer would need to demonstrate that you were terminated for misconduct because you violated a reasonable employer rule.

It is the employer's responsibility to demonstrate that this rule actually did exist and that it was a reasonable rule, and that the reason for your termination was your violation of the rule.
Customer: replied 2 years ago.

When I go to my appeals hearing, what do I need to emphasize on the most to win my case?

Expert:  Joseph replied 2 years ago.
You should emphasize that you were never made aware of the employer rule that you allegedly violated and that you were actually instructed that a few minutes difference in when you signed in and out was okay with management.
Customer: replied 2 years ago.

How do I prove that my management didn't enforse this rule?


And do I need to supeana witnesses for the hearing or could I bring notorized statements from them. If so what do they need to write to help me win my case?

Expert:  Joseph replied 2 years ago.
Statements from your co-workers would definitely help in demonstrating that management did not enforce this rule and that you and your fellow co-workers were unaware that the rule would be enforced.

You wouldn't need to subpoena witnesses for the hearing if you can obtain notarized statements or affidavidts from them stating that the rule wasn't enforced and that management had demonstrated that they were okay with employees signing in and out within a few minutes of their actual times.

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Joseph
Joseph
California Employment Lawyer
5221 Satisfied Customers
Extensive experience representing employees and management