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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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I was discharged from an office for the reason which is unrelated

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I was discharged from an office for the reason which is unrelated to work. I have been working as a director of design for a very large firm (over 3500) employees. We have an access to use cafeteria adjacent to our building. I have been going there to use the salad bar. I get the salad and usually get a salad to go along. I was told by the salad bar employee that I could take the bread. I continue to buy the salad and took the bread. One day, someone pull me to the office and saying I been stealing the bread. I told them, I understood it as bread was free (small salad bar bread, which most salad bar is free). I did not denied for the taking the bread and offer to pay for misunderstanding. I pay them $80.00 and left. Few days later, I was discharged from the office. I asked for the reason and office indicated I was not trustful and unfaithful. I requested for the clarification and they mentioned cafeteria insistences and discharged me. I am not sure this is fair discharged. Is there anything I can do. In meanwhile, I apply for the unemployment and discharged of benefit under section1256 under misconduct under 1260a. I am not certain what this means and can unemployment deny unemployment payment. This was totally innocent mistake. Not sure what to do. Do I need to seek out legal help? Please advice, need to get back to unemployment office by the 7th of December. Thank you very much.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear that you were let go under such unfair circumstances.

Obviously, this was a misunderstanding, but the problem is that an employee's rights in this circumstance are extremely limited. This is because absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

So, while you clearly were not intentionally stealing bread, and while this is a very trivial and unfair reason to fire someone, it is not illegal.

With regard to unemployment benefits, an individual will be disqualified if their employer can demonstrate that they were fired for willful misconduct. Termination for theft would qualify as misconduct and would preclude you from receiving benefits. However, you have a very reasonable argument that you were not intentionally stealing.

It is very important to understandthat how your employer characterizes your temrination is not determinative. Ultimately, it is up to the administrative law judge working for the EDD to determine whether theft occured. If he/she believes that your taking of the bread was innocent, this will not preclude you from receiving benefits, even though your employer terminated you for this reason.

At your unemployment benefits appeal hearing, which I presume you will have if your employer is planning on contesting your claim, it is important to present whatever evidence you can that your taking of the bread was not an intentional theft. If you can prove this to the EDD's satisfaction, you will remain eligible or benefits despite the circumstances of your discharge.

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.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

I am planning on going to unemployment office tomorrow. Do I need to prepare anything? What do I need to bring? Should I request discharge resonning from previous office in writing? Please advice.

Customer: replied 4 years ago.

Like I described above, I need to respond to unemployment office by tomorrow. Do I need to bring anything? Do I need to request anything from my previous office? Anything I need to prepare to bring and any advice on appeal statement. Please advice. Thank you!

Thank you very much for your reply.

It sounds like your claim has already been submitted, contested, and is now scheduled for a hearing. That being the case, you will want to bring any evidence and documentation to support your contention that you did not intentionally commit theft. It would also be wise prepare a formal statement so that your argument is presented in the most cohesive possible manner.

Bring a notebook and pen to take notes. If you don't win, your notes will come in handy for an appeal. You should arrive at the hearing at least 15 minutes early. You'll need the time to park and locate the room where the hearing will be.

The hearing will be tape recorded, so be sure to speak clearly and slowly. You don't want to rush your answers, but you also don't want to take too long before speaking, as that will make it seem as though you're fabricating testimony or are simply unprepared. Try counting to three before responding to each question.

After the hearing, you'll receive a letter in the mail with the judge's decision. The EDD will also release all the checks it's been holding onto. They all may show up at once or not.

Finally, keep in mind that this is an administrative proceeding, NOT a court trial. The rules of evidence and the procedure in general is very different. Things will be much more lax in terms of what is admissible and what is not. The whole process is far less formal. Generally, it is wise to present everything you can in support of your case, even if you dount its admissibility.

Please let me know if you have any further questions and I will be very happy to continue assisting you.
Customer: replied 4 years ago.

Thank you for the response. I am not sure what evidence I need to bring. Only thing I have is check I given to the cafeteria. It is matter of they trust me for my mistake. Except for my words, I do not have anything other than what I have told them truthfully. By the way, my appeal date is not set. I am going to unemployment office to drop off my appeal form Any advice on how to fill out the form? You mentioned this is just administrative proceeding. I hope this is not anything which may stay in record for misconduct. I have very good reputation in the industry and don't have any bad record anywhere and hope this appeal will have any effect on my career and leave bad record. Everything seem very unfair. I paid unemployment tax for over 25year and have to go thru this process (especially it was told to me by cafeteria employee that I could take the bread. I did not think twice of taking piece of bread with my salad). I am almost getting mad for being discharged for innocent mistake. Is there anything I can do with my prior office too?

Thank you again for your reply.

Just Answer is an information service, we cannot provide advice and so I cannot advise you how to fill out the form.

I completely agree with you that what is happening is unfair and I am so sorry for it.

The good news is that a denial of unemployment benefits, if that does indeed occur, will not be discoverable by prospective employers and will not itself ordinarily inhibit your search for future employment.

Although you may not have any documentation or evidence, you have your own testimony, which is a perfectly valid form of evidence at an EDD hearing. Explain as clearly as you can that you believed the bread was free and why. Your assumptions about the bread being free are completely reasonable and a judge will see that.

The general presumption at these hearings is that the applicant IS ELIGIBLE for benefits. Evidence of misconduct must be clear, and based on the facts you have descirbed, I really don't see that.

All the best to you moving forward.