How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask socrateaser Your Own Question

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34680
Experience:  Retired (mostly)
10097515
Type Your California Employment Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

I was terminated from my job on July 24, 2013, but kept on

Resolved Question:

I was terminated from my job on July 24, 2013, but kept on payroll to August 8. There is a current valid claim on file that begins August 9, and I have received an award amount. My concern is that I have a hearing Wed. (tomorrow) to adjudicate the matter by phone. The CA UI dept is asking me the reason I am not working, whether I was warned about my behavior, and so on.
The truth of the matter is that the boss surprised me on my first day back from vacation, and gave the reason for the termination that a colleague at an affiliated office of the same company I worked for had called him and said he had taken issue with my "attitude" during a conference call shortly before I had left on vacation, even though the call had been perfectly amicable, and my associate who was in the same room during the call could think of nothing I may have done wrong during the call. I reported as much to the boss when given this reason verbally for the termination.
There is also the issue of warnings. While there were no formal warnings issued that I had signed, the boss had taken issue after the fact with a couple or three emails - none to clients - where he believed that I may have overstepped my bounds, so to speak. He had also made a big issue of my asking him if he had read an email that I had sent him to attempt shedding light on a client service issue he was asking me to handle, and this was occurring while he was at a conference and needing to check his email on a smartphone.
A worker at EDD with whom I shared this last interaction had told me that in her estimation this did not constitute "a fireable offense."
In all truthfulness, I believe the boss fired me to dump salary, and he has not filled my position in the health insurance dept of the office, where I was the only one to fulfill those kinds of duties. Currently he has staff that have been hired with the money he no longer pays me attempting to do that work, and they are not even legally licensed to perform it.
How might you suggest I proceed at my hearing tomorrow morning?
Thank you.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.

Hello,

You say that your colleague is not comfortable with testifying tomorrow. You could have subpoenaed him to force him to testify -- but, your time has run out at this point.

If you can obtain a sworn declaration from him expressing that he was in attendance at the conference meeting, and that during the meeting he overheard absolutely nothing that would suggest the meeting was anything but unremarkable, that would be admissible evidence in your favor. Similarly, if you can get the person to address your former employer's express claims, and dismiss them as never having occurred during the meeting, then that would also be admissible evidence at the hearing.

A sworn declaration is simply a numbered statement of facts, that begins with:

I [declarant's name], declare:

1. That I am a witness to the matters set forth herein, and if called upon I could and would testify competently of my own personal knoweldge.

2. [state date, time, occurrence of relevant facts]

3. etc.

4. etc.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: [date]

By: _________
[declarant name]
[street, city, state, zip, phone]

The judge must accept the declaration, though without the witness' appearance at the hearing, the judge doesn't have to give the declaration great weight. Nevertheless, if you can't get the witness to testify in person, then the declaration is the next best thing.

Concerning the rest of the situation, you just tell your side of the story. You can state that you've never had any written warnings about anything, and that this entire affair came as a complete surprise. You can speculate about the reason for the termination -- if you know that there are unlicensed personnel doing work that requires a license (and that you have that license), then that would be very important to the judge. Frankly, you ought to report this issue to whichever California agency has oversight -- had you done this before you were terminated, you would have been protected from any termination action, and you would now have a very big lawsuit against your former employer (Cal. Labor Code 1102.5 prohibits retaliation for employee reports to government law enforcement agencies re employer unlawful conduct). Unfortunately, you didn't (presumably), so you have no protection. But, the judge will understand that the employer may have an unlawful goal in mind, and if that's true, then you win the hearing, because the judge is not going to find you to have been terminated for wrongful conduct by an employer which is engaged in illegal conduct.

Please let me know if I can clarify anything or assist you further.

Hope this helps.

Customer: replied 1 year ago.

If I signed an item at the time of dismissal that included verbiage that the employer had terminated me for "poor performance" does that have any bearing on the adjudication?


 


Since there was no relationship between the prior incidents where fault may have been found with the nature of my written communications, whereupon I agreed to be more circumspect in my emails, is it generally correct to draw the conclusion that if I did not renege and "overstep my bounds" as far as the unremarkable activity during the conference call, that I did not commit misconduct in the course of my job duties?


 


Lastly, does it not have to be proven that I committed "gross misconduct" for me to be considered ineligible for UIB?


 


Thank you.

Expert:  socrateaser replied 1 year ago.

If I signed an item at the time of dismissal that included verbiage that the employer had terminated me for "poor performance" does that have any bearing on the adjudication?


A: Title 22, Cal. Code Regs. 1256-38(a) provides: "An individual's failure to perform properly or neglect of duty is wilful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests."


Absent wilfulness, gross negligence, or recurrence of negligence after warnings or reprimands, a claimant's failure to perform his or her work properly would not be misconduct.

 

"Poor performance," is not, without more, grounds for denial of benefits. However, I haven't read the document that you reference, so I can't try to judge how the unemployment hearings officer might view the document as affecting the burden of proof.

 

Since there was no relationship between the prior incidents where fault may have been found with the nature of my written communications, whereupon I agreed to be more circumspect in my emails, is it generally correct to draw the conclusion that if I did not renege and "overstep my bounds" as far as the unremarkable activity during the conference call, that I did not commit misconduct in the course of my job duties?


A: Your premise that there was no relationship would cause me to find in your favor. However, that premise may be false, i.e., there may be a relationship between the emails and the conference call. My approach, were I representing you would be to avoid the issue entirely, and instead show that the triggering event did not display any wrongful conduct, therefore, anything that happened prior thereto is irrelevant, since the employer apparently terminated you for your conduct in the conference call -- where nothing remarkable occurred.

 

Lastly, does it not have to be proven that I committed "gross misconduct" for me to be considered ineligible for UIB?

A: No. Repeated negligence or willfullness is sufficient without gross negligence.

Section 1256-38(d) provides:

(1) Repeated negligent performance after prior warning or reprimand and in substantial disregard of the employer's interests is misconduct where the employee has the ability and capacity to perform satisfactorily. Substantial disregard of the employer's interests is determined after consideration of the following criteria:

(A) The number of negligent acts or omissions.
(B) The span of time within which the negligence occurred.
(C) The seriousness of each incident.
(D) The similarity of the incidents.

(2) It is neither desirable nor feasible to establish arbitrary numerical limits or descriptions in determining the number, time span, seriousness, or similarity of negligent acts or omissions which will constitute an employee's substantial disregard of the employer's interests. Rather, the totality of the circumstances of each case must be considered.

Hope this helps.
Customer: replied 1 year ago.

I filed electronically to postpone the hearing to give me more time to secure cooperation of my former associate at the workplace.


 


Prior to such an interview, do I have the right to request any documentation of what the employer plans to present at that time?


 


Thank you again.

Expert:  socrateaser replied 1 year ago.
You can request that the hearings officer issue a subpoena that the employer produce the entire contents of your personnel file at the hearing and that you receive a copy within in a reasonable time prior to the hearing.

The hearings officer (legally termed an "administrative law judge," or ALJ), can deny your subpoena request. But, if the ALJ does deny the request, then this probably means the ALJ thinks this issue doesn't require any of that evidence -- and that more than likely means you're going to win, since you are presumed in advance to be entitled to UI benefits, and it's up to the employer to prove otherwise.

Alternatively, you can make a direct question to the employer to permit you to inspect your personnel file under Labor Code 1198.5. Those records are admissible without the subpoena -- but, the employer may stall, so the subpoena is usually a better option, because if the employer fails to produce the records, then the ALJ will hold it against them.

There is a possible downside to production of the records. You may find something introduced into the file that you do not expect. Employers are infamous for bolstering their case by adding comments into an employee's personnel file, and then claiming that the employee was warned about unacceptable conduct. I know of incidences where the employer has gone so far as to forge the employee's signature on an acknowledgement of a warning and then place it into the employee's file.

There is the possibility that the employer may not introduce any records -- in fact, many employer attempt to force a hearing as a matter of course, and then they never show up to the hearing itself, because they know it's a waste of resources. So, there is an argument in favor of acting like the hearing is of no consequence, not alerting the employer to anything, and then just show up and testify (with your associate's testimony, if you can get it).

To be frank, that's probably what I would do -- if you think that your former employer is of the sort that will stop at nothing.

Large business (e.g., multinationals, DJIA members, etc.) are unlikely to play these games, because they know that the risk of being exposed is more costly than the minmal change in UI charges from EDD. But, smaller businesses with overarching owners and HR departments consisting of one or two employees (who usually are terrified of losing their own job, unless they do what they're told), may be willing to play games and answer questions later.

Not knowing where your ex employer fits into the scheme of things, I can't say which choice to make -- but, you can, now that you are well informed of the possibilities.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34680
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    869
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    332
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3602
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
 
 
 
Chat Now With A California Employment Lawyer
socrateaser
socrateaser
California Employment Lawyer
34680 Satisfied Customers
Retired (mostly)