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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27259
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Hi there, below is the scenario. I worked at a retail store

Customer Question

Hi there, below is the scenario.

I worked at a retail store and was fired about 2 months ago for breaking a policy. There was a policy that employees could not access friends/family accounts and there own. About 4 months ago i accessed my account by accident, but did nothing in the account. I think i accidentally clicked my account because HR even stated nothing was changed in my account. Anyway, they write me up for that and i sign it stating that i was confused since I don't remember logging in and since I didn't change anything why I am getting punished.

second time, I was at work with someone who is known as a supervisor in the store. It was really busy and we were really short staffed. He was helping out my friends girlfriends sister on her account while i was helping another customer. At some point he needed to help me on my computer and he decided we would switch customers. We switched computers and about half way into the transaction i noticed it was a family/friends account. So i asked him what i should do and he called the manager, the manager said it was fine to proceed and we shouldn't have any problems. I even asked him again, and he told me to proceed and process the transaction.

3 weeks later I was fired for that reason. In one week i go to an appeals hearing to fight for my unemployment. What do you think the chances are of me winning? I was told by my supervisor and manager to go ahead and process the transaction, but i did break policy. What are the best options here?

I really appreciate it.
Submitted: 8 months ago.
Category: California Employment Law
Expert:  LawTalk replied 8 months ago.

Good morning,

I'm Doug, and I'm very sorry to hear of the situation. My goal is to provide you with excellent service today.

While there was a stated policy which was broken, if this person who directed you to go ahead and violate the policy for one reason or another was a Manager and your supervisor, then if the violation directed by your manager caused you to be terminated, then you should be able to show that you are not fired for cause and that you are eligible for unemployment benefits.

You will definitely want to subpoena the supervisor/Manager that directed you to continue with the transaction once you learned that the customer you were waiting on was a friend of a friend of a friend.

You do not need an attorney to pursue your appeal, though it is generally to your benefit to use one---simply because they are familiar with the process of the appeal.

This is an administrative hearing and the Hearing Officer will assist you in getting through the hearing. You have a right to present testimony, and any evidence you have to rebut the reason why you are being denied. If your former employer has documentary evidence that will assist you in your appeal you can ask the UI Hearing Office to issue a subpoena to your company on your behalf for the specific documents that you need to present your case. You can also subpoena witnesses.

Here is a link to quite a bit of information which can help you prepare for the hearing. I realize that the site is located in a state other than your particular state of residence, however, unemployment appeals across the country all essentially the same in format and therefore the information here is applicable to your situation as well:

http://www.ok.gov/oesc_web/Services/Unemployment_Insurance/UI_Appeal.html#GETTING%20RECORDS%20FOR%20THE%20HEARING


If you can show through your own testimony, and that of the Manager who you will want to subpoena, then based on your stated facts it would appear that you have an excellent chance of winning your benefits. The simple fact is that a Manager has the ability to bend the rules when it is in the best interests of the employer. And let's face it---the account of a friend, of a friend, of a friend is hardly the sort of thing that is going to lead to abuse, and the fact that as soon as you determined that is what you had, and you reported it, it would have been a terminatable offense for you not to follow the direction of your Manager and complete the transaction. It was a management decision and you should NOT be held responsible.

You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug

Customer: replied 8 months ago.

Thanks Doug, Great Information.


 


Now I can get my supervisor to attend, but my manager lives to far away. Is there a way I can have her write a letter or call during the appeal? Or is my supervisor (the guy who told me to go ahead with it) good enough.


 


Also, Do you think an attorney is necessary for this situation? It seems pretty straight forward, but I have never been through this process and I do not want to lose because of my lack of knowledge in the court system.

Expert:  LawTalk replied 8 months ago.

Good morning Blake,

You can try to set up an appearance by phone for her. If you want to try that, speak with the clerk of the appeal tribunal about setting that up. This will generally only work with a willing witness---so if she is hesitant about speaking on your behalf---subpoena her. But so long as she lives in the state---you really should serve her with a subpoena----to not do so could jeopardize your case---unless you decide that if she doesn't’t testify that you will be okay with just the supervisor.

Everyone always wants to know if an attorney is necessary---and the answer must be that an attorney always knows more than you do---they have more experience and they know the system. You can represent yourself if you want, as I explained. Having a knowledgeable attorney would give you an advantage over you acting as your own attorney.

I can't tell you how much of a difference an attorney will make in your case---some people do just fine, and other choke under the pressure and the new environment.

However, if you lose here, you can always retain an attorney for the next appeal to the Board of Review.

I wish you success Blake!

If you have additional questions, you may reply back to me using the Reply to Expert link.

Please also keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

I wish you the best in your future.

Doug

Expert:  LawTalk replied 8 months ago.
Good evening Blake,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards XXXX XXXXXXXX.

Is there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug

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