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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7352
Experience:  Significant experience in all areas of employment law.
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Hello, I live in California and was recently laid off

Customer Question

Hello,

I live in California and was recently laid off and then denied unemployment benefits by Code 1256 where my previous employer stated I was discharged from employment due to "Attendance Problems". Below this is another paragraph stating that I did not give the department correct information, I'm assuming this is due to the fact that when I filed for unemployment I marked the reason for leaving due to "Re-structuring of the company" which is one of the reasons I was given in my exit interview, the other stating lately my attendance has not been acceptable.

It is true that i have several missed days, having to call out due to illness. Several individuals at that job including my ex-boss are and have always been aware of any medical conditions, illnesses etc. through the near 4 years I had worked at the company. I always called or texted my boss or contacted other supervisors getting confirmation that I would be out when I was sick, car trouble or a family emergency. I have not skipped work on purpose or anything of that sort. I was given a written warning about 3-4 months prior to my discharge asking to improve my attendance, my boss did not follow up with me with any formal sit downs or write-ups after this point in time and I was under the impression I was in good standing and in no threat of losing my employment. 30 days prior to my discharge my boss mentioned she wanted to follow up on my performance, together we agreed we would revisit it in another month because it was very busy at that time. I wasn't given any other warnings at that time or ever given the impression that I was in danger of being terminated, I had just received a 4 dollar an hour raise 4-5 months before the written warning I did receive.

What are the best steps to appeal this? I do see that I could and probably should have mentioned part of the discharge was due to my employer not happy with my attendance as well as the restructuring of the company but I I chose to give of of the couple reasons we discussed and now I'm sure that looks conflicting. What do I write as an appeal reason? Do I mention that I was given a couple reasons for leaving and just stated one, acknowledge the attendance issue as well and state that I had not been given any warnings for several months and was led to believe i was in good standing with the company? I want to make sure I approach this in the right manner as i was not deliberately with-holding any information from EDD nor was I skipping out on work for no reason, I always received confirmation from a supervisor that I would be out when I was.

Also, when the telephone interview was conducted I was not asked all the questions listed on the back of the telephone interview sheet. I was asked who discharged me, the date I was discharged, and that the president of the company sat with him himself and said that I was a great worker though I've missed days in the past and that I would have a bright future, just not with that company. Before I let the EDD interviewer end the call I specifically asked "Do you need me to answer any of these other questions on the sheet about warnings or anything"? And she said no and that she just needed my ex boss to call her back and give her reasoning, the phone interview last 5 minutes at best. I would have willingfully given the attendance information but she didn't ask anything about it.

Where do I go from here so I can act fast as this has been drawn out since June 18th and I only have so much money saved.

Thank You for your time.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good evening and thank you so much for your question. I am very sorry to hear that you were let go from your job under these circumstances and further that you have now been denied unemployment benefits.

In general, an individual will be eligible to receive UI benefits in the state of California provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), 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 will be the final criteria. This is because individuals who are terminated for "misconduct" are considered unemployed "through fault," since their misconduct was presumably within their control to prevent.

The Unemployment Insurance Code specifically classifies absenteeism as "misconduct" if it results in a substantial breach and disregard of the duty owed to the employer and shows a willful or wanton disregard of and injures or tends to injure the employer's interests.

In evaluating whether this has occurred, the EDD will consider the following questions:

- Did the claimant have permission to be absent? If not,
- Was there a compelling reason for the absence?
- Was the absence an isolated instance?
- Were there prior warnings or reprimands for unexcused absences or other infractions?

See here for more information from the EDD on when an absence qualifies as misconduct: http://www.edd.ca.gov/uibdg/Misconduct_MC_15.htm#Absence

In your circumstance, it would seem the strongest argument would be that your absences were always called in and you always received confirmation from a supervisor in advance of missing work. Thus, your absences were always "excused" notwithstanding the fact you may have received a warning about having too many of them.

With regard to not mentioning the absence issue as the reason you were let go, that can be attributable simply to the fact that you did not believe that was the reason. After all, other reasons, such as restructuring, were given to you and it would appear that the separation of employment took place on reasonably amicable terms.

With these arguments in mind, I would think an individual in your circumstance has a reasonable chance of overturning the preliminary decision to deny you benefits and winning your claim on appeal.

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.
Expert:  Patrick, Esq. replied 1 year ago.
See here for information on how to file your "first level appeal": http://www.edd.ca.gov/unemployment/First_Level_Appeal.htm

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.
Customer: replied 1 year ago.

I have already received a letter of being eligible and what I would get a week, it wasn't until today I got the denile. To piggyback off the information you gave me and give some additional:


 


 


- I always called in or texted a supervisor when I would be out, I also offered to work from home and remote into the system using my personal machine in cases of emergency, they utilized that on a couple occassions and I was not paid for it.

- Anytime I was absent it was for a valid reason. Being ill, car issues, family emergency, I never lied and if they asked for proof I gave it to them (though they never did ask for anything)

- The absence was not isolated, I have struggled with a medical condition off and on and my managers were aware of it, in fact my boss is prescribed medication for the same issue. I did miss quite a few days the last couple months, not consecutive days but once a week every other week or so, however I did keep my boss in the loop with what was happening.

- Over the course of almost 4 years I have been warned in writing twice, the first was quite a long time ago, possibly up to 2 or more years ago. I corrected the action and was given awards and raises (which I do have documented). The last of course being around March or so of this year which was not followed up on, I was just laid off several months later with a couple reasons, attendance being one of them.

In the exit interview I asked why I didn't receive any final warning or probation, anything along the lines to suggest I was in danger of losing my job and they didn't give me much of a reply, I asked if there was anything I could do to save my job and I was told no they were moving on without me.

At this point is it important to include all of this information in a well written letter attached to the appeal paper I have and include documents showing through the years that I have been promoted and had my wages increased? Afterall, who does that for someone who's attendance is unacceptable. Also, should I explain that I wasn't under the impression that it was attendance since I was given several reasons and admit that I know I missed days but always contacted my employer?

Thanks, XXXXX XXXXX do intend on giving your rating. I just need to know what important to include in the appeal letter to give myself the best chances. There are several employees at the company with track records far worse then mine, and they're still at the company.

At this point when I submit my appeal, does this go to a hearing next?

Expert:  Patrick, Esq. replied 1 year ago.

Thank you very much for your reply. It is my pleasure to address your followup questions:

At this point is it important to include all of this information in a well written letter attached to the appeal paper I have and include documents showing through the years that I have been promoted and had my wages increased?

Yes. All of the bullet point information you have included above is relevant and supportive of your claim for benefits. Basically, you want to describe any and all facts which tend to indicate that your absences did not evince a willful disregard for your employer's business operations.

Calling in advance, being absent only for legitimate reasons, your employer indicating that they understand your reasons, your employer promoting you notwithstanding your absences--these things are ALL relevant in demonstrating that neither you nor your employer regarded the absences as misconduct. That, ultimately, is the relevant inquiry.

Also, should I explain that I wasn't under the impression that it was attendance since I was given several reasons and admit that I know I missed days but always contacted my employer?

Exactly. You were given other reasons for why you were being let go, and it was reaosnable for you to assume that you did not believe absences were the motiviating factor. This should definitely be included in an appeal if the EDD specifically cited your failure to provide relevant information as a basis for denial.

At this point when I submit my appeal, does this go to a hearing next?

Yes, the first level appeal is a hearing before an administrative law judge who will read your written appeal and ask you and your employer (who will also be present) questions about the circumstances of your separation of employment.

Please let me know if I can be of any further service.

Patrick, Esq., Lawyer
Satisfied Customers: 7352
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

At this point do all employers decide to fight the appeal or are there cases that it's overturned because they don't want to take it to the next step and spend time at a hearing?

Expert:  Patrick, Esq. replied 1 year ago.
Some employers choose not to fight the claim on appeal, but that does not mean the employee's appeal will succeed. The EDD has an independent obligation to award unemployment benefits, which are funded from tax payer dollars, only to those individuals who satisfy the legal criteria for receiving them. Conceivably, an employer could encourage the granting of UI benefits and the EDD could still deny if it found cause to do so.

So, while the employer's opposition is certainly something that carries weight, it is not determinative either way. Many employers choose not to bother fighting claims on appeal, but that doesn't mean the ruling will necessarily be overturned.
Customer: replied 1 year ago.

So in the case that they decide to not fight it and take it to a hearing do I receive a letter stating whether it's still denied or overturned? And if they do intend on fighting it, I'll get a letter notifying me of a hearing date instead?

How far out is the hearing from appeal usually?

Expert:  Patrick, Esq. replied 1 year ago.
The EDD will conduct a hearing and decide the issue of whether you are entitled to benefits whether or not your employer decides to contest your claim any further.

Within 2-4 weeks of submitting your written appeal, you will receive an akncowledgement letter from the EDD, indicating to which office and judge your appeal has been assigned. Approximately 2-3 weeks later you will receive notice of your actual hearing date.

I hope this helps and good luck.

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