California Employment Law
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Thank you for your reply,Customer The information I sent you is an abridged version of the original I intended to send. Is it best to present myself to the judge as I presented myself to you or is it a "less is more" situation? Also, during the UI interview, the interviewer made a point of lecturing me about volunteering my time while claiming a disability. She would not listen to my reasons and I was unable to explain that I was placed on disability to allow my body time to adjust to the chemo as well as allow the medications to begin working, not necessarily because I was unable to work. The chemo makes me very sick for a couple of days every week, even now that I have been taking the medications for more than 3 months. However, my symptoms are now significantly improved and I WANT to return to work. She went on to say that I would be expected to pay these funds back to the EDD. Are you able to comment on this?
Thank you again for the useful and informative feedback. I received the letter of denial today and will compose my appeal letter within the next few days. Is it possible for me to send the letter to you for your review, either through this forum or directly, and to solicit your feedback before I mail it? Also, since I voided the check and returned it to my employer, explaining that the support I gave them was understood to be voluntary, is it appropriate for me to request they reissue it? Is it possible that EDD will not pursue the obligation, once it's noted that I returned the check and my employer reports the reversal of taxes, etc.?
Thank you again for your valuable input. I really appreciate it. There may be a light at the end of the tunnel, afterall. I am grateful that you are a "Just Answer" member. Have a wonderful weekend! If you're any where near northern California, the weather promises to be nice.
Please find my first attempt at a letter of appeal below. I suspect it is too detailed and too long. Also, I did not make reference to the fact that I voluntarily worked without pay while out on short term disability for the two weeks prior to receiving that fated phone call. I also did not mention that I received an unexpected paycheck from my employer for this time or that I voided and returned it. Mentioning this would allow me to further demonstrate my loyalty to the company, but it would also make the letter even longer. I am concerned with the potential implications by ommitting this information. Would you please provide opinion on this? Thank you for your time. ~ Kenda
Letter of appeal:
I am writing to appeal the refusal of my unemployment benefits. I disagree with the Department’s decision, dated 10/30/12, because I submitted my immediate resignation under duress. The comments I made to my employer were made in the heat of the moment and it was not my intent to terminate our employment relationship. Furthermore, my efforts to withdraw my resignation were met with stall tactics from my employer. Please consider the following details.
I have been employed by Drapinski TV in the capacity of Operations Manager for more than 10 years. My immediate supervisor was Ron Drapinski Jr., however I also reported to Sherry Drapinski with respect to bookkeeping matters.
On 08/09/12 I submitted a letter to Ron and Sherry to notify them of some pending medical appointments, specifically a doctor appointment scheduled for 4:30pm on 08/27/12. Additionally, I noted the appointments on our attendance calendar per company policy. While I was at home, I received a late night phone call from Sherry Drapinski at 10:25pm on 08/26/12. According to my Caller ID, the call was made from Ron Drapinski Jr.’s cellular phone, so it was his voice I anticipated hearing. When I answered the phone, Sherry shouted, “What’s this I hear that you are trying to take the day off [tomorrow], so you can make an appointment with your doctor?” I started to explain to her that I had made the appointment nearly three weeks prior and that I did not need the entire day off. Before I could finish speaking, she cut me off, still yelling, told me to be quite and that I would listen to her. She went on to explain, in a raised voice, why my absence would present a staffing problem. When I attempted to remind her about the letter I gave to her and Ron more than two weeks earlier, she said, “How come Ron and I don’t seem to know anything about this letter?” She continued to yell. I was completely blindsided by the nature of this phone call and my emotions ran out of control. As a result, I told her I quit. This was not my intent and I am not proud of my reaction.
Sherry and Ron were on a business trip in Las Vegas, NV at the time of the call and were scheduled to return that following Thursday, 08/30/12. I thought it would be best to address the matter with Ron once he returned from his trip. At 8:26am on 08/30/12, I sent him a text message expressing my hope that he would be open to working things out. He did not reply. I also called him at 4:40pm that same day, but he was unavailable. I tried to call him again at 11:29am the next morning (08/31/12) and Sherry Drapinski answered the phone. She placed me on hold to speak with Ron, then came back to line and explained that although Ron was too busy to talk with me at that time, he would call me the following Tuesday (09/04/12) to discuss the situation. I tried to talk with Sherry about her phone call, but she made it clear that she did not want to discuss it.
I did not hear from Ron on 09/04/12, so I sent him an e-mail on 09/05/12. In the email, I respectfully XXXXX XXXXX desire to withdraw my resignation, explaining that the comments I had made to Sherry were said under duress and that it was never my intention to resign my position. I also expressed an interest to meet with him in person the next day. Ron did not respond to the e-mail, so I tried again to call him at 4:48pm on 09/06/12. He was unavailable, so I left a message. I still did not hear from him, so I called again at 12:35pm on 09/07/12 and he answered the phone. It is my belief that I never would have resigned my position had I not received that phone call from Sherry Drapinski. I wanted to talk to him about the phone call, but he refused to discuss it. Our discussion did not go smoothly and it ended in him becoming too angry to continue. I will provide the details of our discussion at your request. Before Ron ended the call, he said we would continue our discussion the following week.
By 09/12/12, I had not heard from Ron, so I called him again at 5:52pm. He was in a meeting and was unavailable, so I left a message. He again did not return my call. I came to the conclusion that his continued stalling was his way to communicate his lack of desire to work things out or accept my withdrawal of resignation. As a result, I made arrangements with a co-worker to collect my personal belongings. My coworker rounded up my things and I later learned that Ron assisted her. When I arrived to pick up my things, neither Ron nor Sherry was present.
I continued to support Drapinski TV from home until 09/21/12, by monitoring various account activities and sending important information and documents to Sherry via email. I did so out of a continued sense of loyalty and because I truly believed we could work out our differences.
Please take this information into consideration and allow me to appeal the denial of my unemployment benefits.
EDD must permit the hearing. It's not optional, and it does not matter what your stated reason for your appeal may be. By providing your reasoning in writing before the hearing, you are giving the employer an opportunity to "craft" a rebuttal story that may defeat your facts. Were I in your shoes, I would file the appeal form (DE1000), with as little information as possible.The form shows a space where you write your reason for disagreeing with the EDD decision. You could write something like (EXAMPLE):
The legal interpretation of the above:
1. You had an employment agreement/contract.
2. You offered to resign/terminate the relationship under circumstance where the employer knew the offer was not genuine.
3. The employer jumped on your offer, before you could retract.
4. The employer ignored your subsequent attempts to return to work, which in effect was an involuntary termination by the employer -- not a voluntary quit on your part.
That's the "argument" that you would make to the judge, and it's how you must testify so that your testimonial evidence fits within the scope of the legal argument. If the judge accepts your testimony as true, then he/she must grant UI benefits, because you were fired through no fault of your own.
Hello Socratease. I received your response Saturday morning as I was heading out of town. I tried to reply from the road, but my Smart Phone and 4G service wouldn't cooperate.
Attachments are only available to registered users.
I understand the points you made loud and clear. Thank you for giving me another perspective. After working so closely and so long with the family members who run this business and although more than 2 months have passed since the incident occurred, I still fight the tendency to have an emotional response. I wish I could achieve a certain level of impartiality.
Regarding your appeal suggestion above, I never physically tried to return to work, but I did repeatedly try to communicate my desire to do so. Although I made numerous attempts to reach out, I was ignored most of the time, but not entirely. Moreover, my supervisor strung me along for more than 2 weeks with his continual delays and left me "hanging", wondering if I still had a job or not; something that will likely come to light during the hearing. I tailored your paragraph in a manner that I am more comfortable with. What do you think of this:
"In the midst of a heated conversation with one of my supervisors, I offered to resign. I communicated my desire to withdraw my resignation and return to work, but my supervisor seemed to “jump” at the opportunity to take unfair advantage of the circumstances, even though he knew my offer was not genuine. My continued efforts to demonstrate and communicate my willingness to reinstate my employment were repeatedly ignored."
I have spoken to a few people who have been through the appeal process. It sounds like the hearing is frequently facilitated over the phone, although some cases were handled at a hearing facility. I have no idea how mine will be handled. If I have any additional questions regarding the actual hearing, I may drop you a line. In either case, I'll late you know how it goes.
Thank you again for all of the great information, feedback and encouragment. I sent you a $40 tip. I wish I could afford to send more. You have my genuine and sincere gratitude! : )
My UI Appeal hearing is scheduled on 12/12/12. If you could take a moment to reread my original message to you, I have a questions regarding witnesses and evidence.
Regarding the late night phone call I received from my supervisor, I placed the call on speakerphone so my husband could listen. He heard the last half of the call. He is my only witness to the call. Is it acceptable to bring him as a witness, considering our personal relationship? My supervisor had hired a woman through a temp agency (Renee), with the intent to hire her permanently as the new bookkeeper in the future. She resigned approx 4 months later, about two weeks before the phone call incident, due to the unprofessionalism, hostility and harassment she observed. She actually sited these reasons wanting to leave to her supervisor at the temp agency. She also worked side-by-side with me for more than a month, as well as during the time I voluteered my services while covered under SDI. As a result, she witnessed the physical limitations caused by my RA symptoms. For example, she had do quite a bit of handwriting for me and had to open boxes for me, because my hands were so inflamed that I could not handle a pen or a box knife. She was also aware that I was taking prescription pain killers throughout my shifts, just to manage the pain so I could work. Renee has offered to appear as a witness, however since she did not witness the phone call, is she a valuable witness. Another witness (Joe) stepped forward who hasn't worked for my employer for more than 7 years. He worked there for a year and also resigned due to the unprofessionalism and harassment he observed. Joe has since become a close friend. While I appreciate his support, is his testimony relevant? Finally, Rob (another employee who was fired blatantly in the presence of Renee and other coworkers) has offered to testify, but he was not a witness to anything I experienced, nor did I witness his firing. Rob also had a hearing scheduled for his unemployment benefits, but my supervisor dropped the charges, so the hearing was canceled and his claim was approved. Should I include any of these four individuals as witnesses?
Regarding evidence, I have detailed notes, phone logs, e-mails, letters and text messages regarding the events that lead up to the phone call incident (including that I volunteered while covered under SDI), as well as details of the events that ocurred after the phone call. How do I decide what is helpful to my case and what is superfluous and potentially damaging?
Thank you in advance for your feedback.
Hello Socrateaser. Happy New Year! I hope you remember me. I wanted to let you know how the appeal went. I ended up hiring an attorney from uchelpcenter.com to represent me in the hearing. The hearing was a miserable experience for me. I anticipated that my employer would not "play fair" and that is exactly what he did. I won't go into the sordid details, but I will say that the ALJ seemed to give him a free pass on many things, such as he arrived late for the hearing and she waited for him, his behavior was unprofessional and childish (a lot of outbursts, profanity and the inappropriate use of the word "retard") and she did not have him removed, and finally, he did not have copies of the items he wanted to admit into evidence, so the Judge made the copies for him. I took this all as a bad sign. Ultimately, the Judge upheld the original decision and my claim was again denied. There were many false statements that my former employer made that she incorporated into her final judgement, even though I testifed otherwise. His word against mine and she clearly felt his testimony was more credible. We are in process with the second appeal now. There were multiple documents that I wanted to admit into evidence during the hearing that my attorney did not use, because it did not fit his strategy. I had hoped to submit them during the second appeal, but he explained to me that the board is unlikely to accept them, so he won't submit them now. I am very disappointed to hear this, because I believe the documents I have refute several accusations my former supervisor made during the hearing. My attorney has the audio from the hearing and is going to upload it to Dropbox so I can listen to it again. Anyway, I wanted to thank you for all of your original input, even though I wound up hiring representation. Regardless of the outcome and as horrible as this experience was for me, I would have felt worse about it if I had not tried. If you are interested in reading the Judge's decision or listening to the audio (assuming that's an acceptable practice), please let me know. ~ Kenda
My attorney said he would upload it to dropbox, but hasn't done so yet. As soon as he does, I will reach out to you. The audio was sent to him in the form of a CD and I was not provided a copy. They did not send a transcript. My former supervisor claimed he was not aware that I was volunteering my time when I came back to work and volunteered my time for those 2.5 weeks. He absolutely knew and agreed to it before I came back. He couldn't explain why I did not receive a paycheck in a timely manner along with the rest of the staff. If you recall, he sent me a check for that time without warning about a month and a half later. When my attorney asked him why he took so long to generate the check, he said that I abandoned my job, thereby causing a staffing issue that prevented him from generating it any sooner. Oddly enough, all of the remaining staff received their paychecks in a timely manner during that entire time frame. If he was unable to generate my check, he would have been unable to generate anyone's for the same reason. You may remember that I voided that check and returned it to him immediately. To this day, he has never reversed that check, causing my W2 to be overstated and making it look like I collected wages from them while also collecting short term disability. This is causing a delay in filing my taxes, which may cause me to lose my window of opportunity on some grants I wanted to apply for. I recently received one grant that will cover half my tuition costs to attend the Paralegal Program at a local Calif University, but this issue with my incorrect W2 is holding up the process. I sent written request over a week ago asking that they make the necessary corrections and revise my W2 within 10 business days. They have yet to do so. I will send them one more letter on Monday, this time certified, as well as call the IRS. I don't know what else to do if they refuse to correct my W2.
I wasn't trying to ask a second question. I was just sharing an update on my situation with you. I apologize for appearing to overstep a boundary. That was not my intent. I am really glad you sent that response though, because I didn't realize you could answer questions on that topic. Depending on the outcome in the next few weeks, I may have to take advantage of another (separate) question and I would rather continue working with you.
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