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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12791
Experience:  Significant experience in all areas of employment law.
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I was terminated on Oct 31st, circumstances were based on performance.

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I was terminated on Oct 31st, circumstances were based on performance. I feel the circumstances were not valid, but that is another story. The current issue I have is my unemployment benefits. I was denied unemployment because the company indicated to California Unemployment office that I was still working. The company issued a paycheck to me on Dec 15th, I notified them via phone that I was terminated and to correct this. I received a second paycheck on Wed 31st. I received the denial letter from unemployment on Sat. Dec 1st, because the company indicated that I was still working. What recourse do I have. I will be delayed additional time to receive my unemployment benefits probably another month, and what do I do with the payment from my company. I have left the money in the account, can they reverse this at anytime ? If I am unable to collect unemployment because the company indicates that I am still working, what steps do I need to take to resolve this. I will notify them again today, but wanted to know more information. Thank You for your assistance. Mark
Hello and thank you for entrusting me to answer your question. I am very sorry to hear you were let go.

This seems like a very odd situation. Any idea why your former employer would continue paying you and insist that you are still working when you clearly aren't? And when you say you received a check in December, do you mean November?

I very much look forward to assisting you regarding this matter.
Customer: replied 4 years ago.

Sorry I meant November. Not sure on why they would indicate I was still a active employee. I was acting manager at the facility, and we had a similar situation with a employee that we let go on his expense account. We let him go for fraud on his expense account, and denied payment at my facility for the fraud based expenses. But a couple of weeks went by and I noticed payments on the General Ledger for the same expenses, which were double paid to the former employee. The company indicated that they made a error, and most likely were unable to receive the funds back from the employee. I think the most likely did not handle my termination correctly, incorrectly filling out the paperwork. Not sure but its prevented me from collecting my benefits in the mean time, and we are trying to loan modify the house loan due to my unemployment. These payments are incorrect, and make seem that we are falsifying our statement to the bank for financial hardship. Can I keep the payments in lieu of my UI benefit denial ? Not that I want to, but not sure what to do... Thank You.


Thank you very much for the detailed reply. This must be extremely frustrating for you.

Normally, where an employer pays an employee by mistake, the employer is entitled to return of those erroneous payments. This is a very difficult situation because although the payments have apparently been made in error, the fact these payments have been made is actually having negative consequences for you because it is precluding you from collecting unemployment benefits, to which you are entitled.

An individual in this circumstance doesn't have any "great" options, but the best course of action would ordinarily be to write your employer and explain to them that their negligence in continuing to keep you on payroll is causing you financial harm by resulting in the denial of your claim for UI benefits. In lieu of you bringing a claim for negligence against them (which you would be entitled to do as compensation for the weeks in which you now have been barred from collecting UI benefits), you will waive your claim if your employer will affirm that the erroneous payments will be recharacterized as severance (which will entitle you to keep these payments). It would also be wise to state that your employer's failure to respond to this correspondence within X number of days will be construed as their implied agreement that the erroneous payments so far made and all subsequent erroneous payments made will be construed as severance. That way, you have an argument that you are entitled to these payments even if they don't reply to your letter.

The above approach would give an employee in your circumstance the strongest legal footing, ordinarily speaking, and is the best "fix" to an otherwise poor situation.

Please 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.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.

Customer: replied 4 years ago.

Thanks for your assistance, I will proceed with a verbal conversation and follow up email. As for the errant payments, I will leave them in the account in which they were deposited. Can the employer at any point in time retrieve amounts, 2-3 months down the road without notification to me or the bank. Thanks for all the help, its frustrating to deal with this situation. I just want to move forward...


You are very welcome for the information. Are the payments in your personal bank account or some kind of joint account held in trust between you and your employer?
Customer: replied 4 years ago.

Yes. Personal Bank Account-Direct Deposit. I called HR again, and they indicated that I was still a active employee and they will resolve the situation ASAP. They indicated that they were unaware that I was terminated. I indicated that if I will follow up with a email, and if they do not comply with correcting the situation I will assume that all payments to my account will be counted as severance pay. Thanks again for the help. Mark


You are very welcome. While your employer would have no right to levy your bank account, they could conceivably file a civil lawsuit compelling return of the funds. That would be their sole remedy.

If I have adequately address your concerns, would you be so kind as to provide a positive rating of my service? This is the only way that I receive credit for the assistance I provide on Just Answer.

Best wishes to you moving forward.
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