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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1753
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I was called into an after hours meeting with my boss and HR

Customer Question

I was called into an after hours meeting with my boss and HR and given an action plan that changed the scope of my duties as well as what they considered failures in performance and said if I did not comply within 30 days I could be terminated, rather than sign I asked HR if we could come to some other arrangement and was informed I must sign and the indication that if I didn't I would be fired immediately. Rather than sign or be fired I gave them my resignation and they then asked me twice to extend it. Even though I would not sign their action plan I then went ahead and completed the requests on it and offered to tear up my resignation and stay as an employee. My supervisor told me she would not accept my change because I offended her by not signing the action plan and also they were planning to change the position. I have now been gone from the job for a month and filed for unemployment from California EDD and they rejected me because my employer sent them a copy of my resignation letter and EDD stated that I did not investigate other opportunities to not sign the action plan than resigning. California EDD has informed me I have 20 days to dispute the rejection and I can bring representation. Do I have chance of getting a change or have I lost?
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 :

First, let me say that I am terribly sorry to hear that you are in this situation. To receive unemployment, you must prove that you lost your job through no fault of your own. Usually, resigning from your position without good cause immediately triggers a denial of benefits. Unemp. Ins. Code Section 1256 provides: "An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause. . . ." Good cause is defined in Title 22, Section 1256-3(b): "Good cause" exists for leaving work, when a substantial motivating factor in causing the claimant to leave work, at the time of leaving, whether or not work connected, is real, substantial, and compelling and would cause a reasonable person genuinely desirous of retaining employment to leave work under the same circumstances. Generally good cause for leaving work is decided on the facts at the time the claimant left work. Unless there is a timely connection between any alleged reason for leaving and the actual leaving, the employee has waived what might otherwise justify termination of the employment relationship and has negated the required causal connection between any given alleged reason for leaving and leaving. The claimant may submit several reasons for leaving work, some of which, when considered individually, do not constitute good cause. However, if one reason which is good cause is a substantial motivating factor in causing the claimant to leave work, the claimant's leaving is with good cause."

Employment-LawExpert :

However, Title 22, Section 1256-3(c) provides: "Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause."

Employment-LawExpert :

So, had you been fired for not signing, you would have received benefits. Because you resigned, I must unfortunately tell you that things will be very difficult.

Employment-LawExpert :

In Zorrero v. CUIAB, (47 Cal. App.3d 434, 1975): the court stated "[T]he quitting must be for such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the . . . unemployed." Thus, if you can prove that you were in fact going to get fired, and that quitting was the only reasonable alternative open to you, and that you tried to preserve the employment relationship, then you MAY be able to prevail.

Employment-LawExpert :

Especially, because if you can show that the change in your duties was so drastic as to constitute a constructive termination.

Employment-LawExpert :

then you can show that you were technically fired, before you had the opportunity to quit.

Employment-LawExpert :

The good news, is that unemployment usually denies benefits and sets an appeal the second an employer makes any legitimate argument as to why you should be denied benefits.

Employment-LawExpert :

However, I do not want to give you false hope here, because if your employer states that they tried to work with you, and you refused, things may not go well if you do not have any documentation to the contrary.

Employment-LawExpert :

Because to be able to quit in a situation like this, under a theory of constructive termination, you would needed to have allowed the employer an opportunity to remedy the situation, or would have informed the employer that you were not willing to sign, and thus given the employer the chance to allow you to stay in your current position, or some proof that shows that prior to handing them your resignation letter, you did something to try and preserve the employment relationship with the duties you originally had.

Employment-LawExpert :

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

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.

Brandon, Esq., Lawyer
Satisfied Customers: 1753
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 3 other California Employment Law Specialists are ready to help you
Expert:  Brandon, Esq. replied 11 months ago.
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Customer: replied 11 months ago.

Would the fact that I asked them to allow me to make the changes requested but not sign a document I disagreed with show that I tried to preserve the relationship but they declined. Also what about the fact that after completing their requested changes I offered to rescind my resignation. This was the first written warning I received in my entire career and in fact just 3 months prior I received a glowing review and bonus.

Customer: replied 11 months ago.

I have the letter/action plan in which they state if I did not make the required changes in 30 days I could be terminated. Is that valuable in an EDD hearing?

Expert:  Brandon, Esq. replied 11 months ago.
Absolutely. However, the problem with it is that it says you "could" be terminated, not that you "will" be terminated. Thus, to prevail you are going to need to show that you were basically told that you were terminated if you failed to sign, or change job duties. You need to show that you did something to try and keep your job and that because they told you that you had no other option but to change jobs or be fired you were given no option but to provide them with a resignation letter. You are definitely not in an ideal situation, but you still may prevail depending on who the adjuster is that gets assigned to you.

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