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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5276
Experience:  Extensive experience representing employees and management
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I worked for a company for almost 6 years. In my first year

Customer Question

I worked for a company for almost 6 years. In my first year I was given a written warning re: arriving to work on time. In my defense, I live in Los Angeles and commuted close to an hour each way. Given the unpredictable nature of the traffic here arriving on time (for anything) is an ongoing struggle. Unfortunately, relocating closer to work wasn't possible due to cost. A little over a year ago my company split my work week between two locations. The second location was even further away, extending my already strained commute. Shortly thereafter, I was given a second written warning for arrival time and told a 3rd would be cause for termination. Four days before my termination there was an incident that angered my ex-boss who called me from out of town. After speaking with him, I spent my entire day off, uncompensated, correcting a situation that was not entirely my fault. Four days later I was released and told it was for being late to work. I feel it was related to the other incident. But, because I had two write ups on file and had been late to work recently due to construction on my route, I'm not sure if I have a case. Having never collected unemployment, I didn't tell the EDD representative about the situation that angered my ex-boss - I only repeated the reasons he had given me for the discharge. Thus, I don't feel I advocated for myself. I now have an appeal hearing scheduled but am wondering if I have a case, given the two write ups. Can you advise?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

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

My goal is to provide you with excellent service today.

Having lived in Los Angeles for nearly a decade now, I entirely sympathize with your situation. I had a commute time of nearly two hours and still did not get any sympathy from my employer for even showing up a few minutes late.

Unfortunately, in order to collect unemployment benefits you need to be terminated through no fault of your own. Since your employer had you on file for being late twice and you had been notified that a third time would result in your termination, your employer has a pretty good case that you were terminated for misconduct (tardiness/absenteeism) and not through no fault of your own.

So even if the actual reason for your termination was that you angered your boss over a different situation, your employer still had good cause to terminate you for being late to work three times (including giving you two prior write ups and a warning that if you were late another time you would be terminated).

The only situation in which this would matter is if you angered your boss by complaining about an illegal activity, and he retaliated against you by terminating you. In that case, in addition to being eligible for unemployment benefits, you would also have a cause of action for wrongful termination in violation of public policy.

However, it is illegal for you to work without pay, so if your employer fails to pay you for those hours worked (immediately at the time of termination) then you have a valid wage claim against your employer for the amount you should have received for those hours.

If your employer doesn't pay you for it, you would be eligible to receive up to 30 days of wages as a waiting time penalty in addition to the amount that you are owed in unpaid wages.

You can file a wage claim with the Department of Industrial Relations using the information available online here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Otherwise, although I wouldn't suggest you abandon your appeal, realistically you have a very remote chance of getting unemployment benefits given your situation.

I realize that some of the information I gave you above is not what you wanted to hear, but I hope you appreciate a direct and honest answer, as it would be unprofessional of me and unfair to you to provide you with anything less.

Since my goal is to provide you with the best service today, please don't hesitate to ask any follow up questions.

If you don't have any, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Thank you for your positive rating of my service!

Please contact me on JustAnswer should you have any further legal issues.

You can contact me by placing ‘To Joseph’ at the beginning of your question and/or requesting me directly in the California Employment Law category.

When you receive your Customer Satisfaction Survey from JustAnswer, please rate me highly (9-10)! High customer satisfaction scores ensure that I will continue to provide you and other customers with excellent service and they are greatly appreciated!

Thanks again and best of luck!

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Joseph
Joseph
Attorney at Law
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Extensive experience representing employees and management