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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11864
Experience:  Significant experience in all areas of employment law.
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unemployment

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unemployment
Good evening and thank you for entrusting me to assist you.

What is your question regarding unemployment?
Customer: replied 3 years ago.

Hi!


 


I was recently fired from my sales position at Nordstrom. I am wondering how to go about filing for unemployment *if it's possible* and how much I should expect to receive. I was making around 2,000 dollars per month.


 


 

Sara,

Thank you very much for your reply. I'm very sorry to hear that you were let go. Can you please explain what your employer's reason was for letting you go? This may have some impact on your eligibility for benefits.
Customer: replied 3 years ago.

Thank you for your concern, I appreciate it. I returned items back to the store instead of back to the original employees who sold them in order to save time to sell more in my department. I owe the store money for the lost commission and I was let go. This is called "commission fraud".

Thank you very much for explaining.

In general, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (this is usually not an issue if you have been employed for more than a few weeks), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

At issue in your circumstance would be the final criteria--unemployed through no fault of your own. This is because individuals fired for what the law defines as "willful misconduct" will be regarded as unemployed "through fault," since they voluntarily engaged in acts they should have foreseen would result in termination.

The question is whether your "commission fraud" constitutes "willful misconduct." In general, falsifications concerning work records constitute misconduct if the following two conditions are met, in accordance with Title 22, Section 1256-34(e):

- The false statements are wilfully made.
- The false statements substantially injure or tend to injure the employer's interests or are a substantial violation of the employee's obligation to the employer.

So, you can argue that your termination under these circumstances does not constitute "misconduct" through one of two means--that you did not know that what you did was against store policy, or that it did not result in substantial injury to your employer.

If I am understanding correctly, it seems that your "commission fraud" (as your employer is calling it) did result in you being paid more commission that you actually earned, and so your employer can likely argue successfully that this resulted in "substantial injury." Thus, you only remaining argument would be that you didn't know this behavior was against store policy.

If you can argue that you weren't aware what you were doing was wrong, then termination under these circumstances may not constitute "willful misconduct," and thus may not result in your disqualification from benefits. Otherwise, I'm afraid to say that a willful falsification resulting in "substantial injury" to your employer generally will result in disqualification and you will be unable to collect benefits.

There is no penalty for applying for benefits and being rejected, provided you do not make any intentional misrepresentations on your UE application. So, you can and should apply for benefits, and if your employer contests your claim, present your case to the hearing officer who will determine whether you were terminated for "willful misconduct" and hope for a ruling in your favor.

At $2,000 a month in wages, you would likely stand to receive about $230 a week in UE benefits. See here for a table that calculates the exact amount: http://www.edd.ca.gov/pdf_pub_ctr/de1101bt5.pdf

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 3 years ago.

I did not know what I was doing was against store policy and I have to pay them back 550 dollars for the commission fraud, so they will be getting what they deserve back, so therefore there is no substantial injury to the employer, as I am fixing the situation. In this case, does this sound like a promising case to claim unemployment for?


 


"If I am understanding correctly, it seems that your "commission fraud" (as your employer is calling it) did result in you being paid more commission that you actually earned, and so your employer can likely argue successfully that this resulted in "substantial injury." Thus, you only remaining argument would be that you didn't know this behavior was against store policy."

Hi Sara,

The fact that you are now repaying the store for their "loss" would be irrelevant to determining whether a substantial injury occurred. If repaying after the fact were sufficient to negate a "substantial injury," then even actual cash register theft, if caught and repaid, would be insufficient to disqualify a claimant for benefits.

That said, if you did not know that what you were doing was against store policy and you had no reasonable basis of knowing that it was (i.e., there was no written store policy against this behavior and it was not obviously impermissible), then you would have a strong argument that you are entitled to benefits.

I don't want to misled you into thinking this is a sure thing, but if you can argue that you did not nor could have reasonably known that what you were doing was against store policy, then your case for benefits would be very strong.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
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