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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1779
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I was fired after a string of write ups the last being that

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I was fired after a string of write ups the last being that I smelled of alcohol on the job. The write ups were mostly false. Before the write ups began I was slapped on the butt by my female scheduling manager. At another time, after saying I was having a bad hair day she said "girls don't care about guys hair, only if they have a 6 pack or the have something special down there and can make a girl happy." At a previous time I overheard a manager saying they fight or string out all unemployment claims. When they terminated me I asked if they were going to fight me on my unemployment claim. The GM answered " I cannot comment on this. I have no other source of income at the present. Should I use that information when I speak to UI moderator? Will it help me get my benefits?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 11 months ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

To receive unemployment in California, you have to prove that you lost your job through no fault of your own. To do this, you have to prove that you were not fired for misconduct. "Misconduct" is an intangible concept which has never been defined by the legislature. In P-B-3, citing Maywood Glass Co . v. Stewart (1959), the Board gave the following definition of misconduct:



The definition of misconduct must be considered in the light of the basic purpose of the unemployment insurance program. As expressed in Section 100 of the Unemployment Insurance Code, this basic purpose is that unemployment benefits are for persons involuntarily unemployed through no fault of their own.


. . . 'fault' means intentional action which the person who claims benefits foresees, or which it may be reasonably inferred he must have foreseen, would tend to produce or prolong a period of unemployment and from which a reasonable person in the claimant's circumstances and with the claim- ant's knowledge and understanding, desiring employment and foreseeing such loss of employment, would necessarily refrain.


Employment-LawExpert :

For a claimant's act to be misconduct, the following four elements must be present, according to Title 22, Section 1256-30(b).

Employment-LawExpert :

  • The claimant owes a material duty to the employer under the contract of employment.

  • There is a substantial breach of that duty.

  • The breach is a wilful or wanton disregard of that duty.

  • The breach disregards XXXXX XXXXX interests and injures or tends to injure the employer's interests.

Employment-LawExpert :

When making a claim for unemployment benefits, you simply must prove that you were terminated for a reason that was not misconduct. Any evidence you have that would lead to this conclusion will result in you receiving benefits.

Employment-LawExpert :

So, should you use this information when you speak to a UI moderator? Absolutely. But you need to be sure you engage the conversation properly. In regards XXXXX XXXXX slapped on the butt, if you were to ever complain about any of this, then writing you up would be considered retaliation for engaging in a protected complaint.

Employment-LawExpert :

If, for example, you rebuked her advances, you should include this when speaking with the EDD.

Employment-LawExpert :

As for the other comments regarding them "stringing out" all unemployment claims, you can definitely add this. The ending decision will come down to a person believing your story over theirs. The company will make you out to be a drunk. A person, who after repeatedly being told not to, continued to come to work drunk.

Employment-LawExpert :

You need to show that 1) this was not true, 2) if it was true that you never endangered anyone, 3) that your work product was always phenomenal, and that 3) the real reason you received these write-ups was because they wanted to get rid of you after you complained of the female scheduling manager slapping your butt.

Employment-LawExpert :

As long as you can make an argument that you lost your job through no fault of your own, you should prevail.

Employment-LawExpert :

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, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day.

Expert:  Brandon, Esq. replied 11 months ago.
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Customer: replied 11 months ago.
I did not complain about being slapped on the butt. I never told anyone and no one saw. Is it too late insinuate I was systematically fired because I did not respond to unwanted advances?
Expert:  Brandon, Esq. replied 11 months ago.
Absolutely not. While you cannot sue them under a theory of a hostile work environment, you can still make the argument for the purposes of unemployment. Remember, all you have to do is argue that you were fired through no fault of your own. If you give a plausible and believable reason as to why what you did did not constitute misconduct, then you will receive benefits. So, you put forth the idea that this is the real reason why you received the write-ups, and that no one on the job will say that you weren't doing your job perfectly. Unless there are significant write-ups with them saying you will be fired if you keep drinking on the job, and you signing those write-ups without complaining about getting them, then you should be okay.
Brandon, Esq., Lawyer
Satisfied Customers: 1779
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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