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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Hello, i have an appeal hearing for my unemployment May 12,

Resolved Question:

Hello, i have an appeal hearing for my unemployment May 12, 2012. This is my first hearing so im not sure if i have to lawyer up or just go solo? I was let go do to my perforamnce, I was an underWriter for Chase Bank. As an UW one of my duties is too check customers income to be reviewed for a loan modification. If you get an error for any inomce reason you get a "zero". I was on a final write up, so per my Supervisor i had my inomce checked by her for a second look. She stated she checked it but she really didnt look at the file, I ended up getting a Zero for somehting she could have caught if had given the file a second look. Im not understanding my they are appealing the my Unemployment, it's not like i wasnt working. My close friend is a Supervisor for the same Dept and told me that Chase always appeals and i shoulkdnt worry about it. But now that i fouind out if i loose i woukld have to pay what i have recieved back. Kind of getting worried now. thanks in adavnce for your help.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you have been let go and agree that the circumstances seem quite unfair.

In general, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

At issue in your circumstance is the final criteria--unemployed "without fault," which is defined as unemployed for reasons other than "misconduct." In general, Title 22, Section 1256-38(b)(1) provides: Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct."

However, section 1256-38 goes on the state: "However, misconduct exists if inability, incapacity, or inefficiency is due to one's willful failure to perform to the best of his or her abilities. Thus, if an employee's inadequate performance is the result of circumstances within his or her control and he or she does nothing to improve the performance, there is a willful failure to perform adequately which is misconduct.
It is therefore necessary to distinguish between those cases where the claimant's assignments were beyond his or her capabilities and his or her performance was to the best of his or her ability, and those cases where the claimant knowingly and willfully failed to perform to the best of his or her ability."

So, pursuant to the above stated law, an employee in your circumstance would simply have to demonstrate that they were performing to the best of their ability and that any performance issues were unintentional.

Assuming an individual in your circumstance can prove that performance issues were unintentional and you otherwise meet the remaining criteria set forth above, you should win an appeal against your former employer.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Patrick, Esq. and other California Employment Law Specialists are ready to help you