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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12024
Experience:  Significant experience in all areas of employment law.
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I'm trying to help my daughter who was fired from her job as

Customer Question

I'm trying to help my daughter who was fired from her job as a medical assistant. she was employed for 8 mos. but had some medical issues that caused her to miss quite a bit of work.
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: california
JA: Has anything been filed or reported?
Customer: she filed an unemployment claim which was denied because her employer lied and said she was a no show no call. on two days
JA: Anything else you want the lawyer to know before I connect you?
Customer: she requested time off on two days and was told it was not approved by her supervisor, but that she could 'call out' which she did... i'm just wondering if the fact that she called out after her time off was denied is a losing battle with edd
Submitted: 6 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 6 months ago.

Hello and welcome.

If you are asking whether your daughter has a chance of winning an appeal for unemployment benefits, then the answer is quite possibly "yes." What she would need to demonstrate is that it was not possible for her to call in any sooner and that she did the best she reasonably could to give her employer notice and comply with her employer's policy regarding absences. So, it's definitely not a losing battle. She just has to demonstrate that she could not have done more to warn her employer sooner that she was going to miss work.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

Customer: replied 6 months ago.
I just want to be clear that on the days they are saying she was a no call no show. she was not sick and had requested the time off. her supervisor suggested that she call in since her time was denied. She trusted that her supervisor would not suggest something that wasnt acceptable practice.
the notice of determination says she lied or with held information from the EDD so she was not eligible for benefits. She mistakenly put 'laid off' on the initial claim...but after speaking to me i had suggested she change it to 'terminated' and write the reason was illness. ...which is what we thought she was being terminated for missing too much work, the EDD office called her and during her interview the gentleman commented that she should have used common sense when completing the application. she is 22 years old and this is the first job she's ever been fired from so there were mistakes made in her initial claim. Will that also be something she needs to address?
Expert:  Patrick, Esq. replied 6 months ago.

Thank you.

Unfortunately, yes, misstating the reason for the separation of employment can itself be grounds for the denial of benefits. she would need to convince the appeal judge that this was a mistake. As for the true reason she was let go--missing work for reasons not relating to illness--it still comes down to whether she reasonably complied with her employer's attendance policy. Her leave request was initially denied, so it would be hard to argue that she originally thought she was missing work with the consent of her employer. She would need to argue that she reasonably interpreted her supervisor's instruction that she "call out" as a subsequent authorization for her to miss work. Whether or not this argument will succeed is tough to say but there is absolutely nothing to lose by appealing.

Again if there is anything more I can do for you just let me know. It's my pleasure....

Customer: replied 6 months ago.
Her supervisor made the suggestion for her to call out in the presence of another employee who is still employed there and confirmed with her the week prior of the days she would be out. We have phone logs that show she made phone calls on the days they claim she was a no show no call . Do we have any recourse or case against the supervisor and or employer for not being truthful? It's not a very high paying job and she is only 22, however this is really the only real work experience she has and now she can't even use it as previous employment history.
Expert:  Patrick, Esq. replied 6 months ago.

There would be no legal claim against the supervisor, no. This is so because unless your daughter had an agreement guaranteeing her employment for a specified period of time she was an at will employee and as such her employer could terminate her for virtually any reason or even no reason at all. So, regardless of whether your daughter can demonstrate that she was mislead her employer was still acting within their rights to let her go.

Getting this witness to sign a sworn declaration or appear at the appeal hearing could be helpful, but there is still the question of whether your daughter should have reasonably interpreted the instruction that she "call out" as an AUTHORIZATION of her leave. Her employer will likely say "The leave was unauthorized because it was denied, but I instructed her to call out that way it was at least documented and so there would be no confusion as to whether she was coming in." So it really comes down to the appeals judge in terms of what they think your daughter should have reasonably interpreted this instruction to mean. I certainly think there is a a chance she could win the appeal, I am just explaining to you what the other argument is.

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 (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes.

Expert:  Patrick, Esq. replied 6 months ago.

Was there anything else I can do for you?

Expert:  Patrick, Esq. replied 6 months ago.

It looks like we may have gotten disconnected. Can you please let me know if you are still able to view my responses to you?