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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38901
Experience:  Retired (mostly)
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I was recently terminated and am being denied unemployment

Customer Question

I was recently terminated and am being denied unemployment benefits in the state of California for failing to notify my employer two hours before my scheduled work shift that I would be unable to attend my scheduled work shift, which was a mandatory meeting on my regular scheduled day off. I would have to have called to notify my employer at 5AM or before then to have notified my employer in a timely manner, but I was too ill to move at the time and did not notify my employer until an hour after my scheduled work meeting time.

I also saw a doctor in regard to my illness and was told I was suffering from a high fever due to having the influenza virus in my body.

The unemployment department's given reason was that my former employer had said I have had an excessive amount of write-ups having to do with attendance, but I had only had one 'coaching' up until my termination having to do with attendance / tardiness, having been late for a similar work meeting that I had been unaware of 3-4 months prior.

I have also been written up 3 times for not hitting my sales quota, and 2 times for misconduct. Even though these write ups were isolated incidents from the reason I was terminated, I feel they definitely played a part, but were not the reason given as to why I was terminated. I actually was not given any written statement explaining my termination, as it was only verbal and was asked to sign and date a document that had no actual written reason for my termination, which I refused to sign.

Should I have been denied unemployment benefits because of attendance problems, which was stated on my denial of unemployment benefits letter, or can I appeal and fight this?

Thank you for your time and consideration.
Submitted: 4 years ago.
Category: California Employment Law
Expert:  socrateaser replied 4 years ago.

Practically every employer claims that every terminated employee was fired for insubordination (not following a reasonable rule). EDD increases the employer's unemployment contribution percentage where an employee is fired without a valid reason, so it's entirely natural for the employer to connflate the facts to defeat the employee's claim.

So, the first part of the answer is, "yes," you should appeal, because you have absolutely nothing to lose by doing so.

Failure to meet a sales quota is not grounds to deny unemployment, as long as the employee has done his or her best to perform. And, since that is mostly a subjective issue, the employee's testimony will generally be believed as to whether or not he or she did his best. So, you can throw those two issues off the table.

If you missed a meeting about which you had no notice, then you can't be sanctioned for that reason (assuming that the administrative law judge (ALJ) believes your testimony. Similarly, if you were suffering from a virulent flu, and your physician will give you a note concerning this issue, then you can hardly be found to have been insubordinate, given that even if you had called, you would not have been able to attend the meeting without putting other employees at risk of becoming ill.

This leaves the "misconduct" writeups. If those had nothing to do with attendance, then they aren't relevant, because the employer has already stated that they weren't the reason for your termination. However, you can probably expect that the employer will change its story at the appeal hearing, so that's a risk, unless you have a good reason for your misconduct. Though, if there is a great deal of time between the misconduct and the termination, then you could argue just that: the employer is changing its story, because if the prior misconduct claims were relevant to the termination, you would have been terminated long before now.

In short, you need a credible explanation for every one of the potential claims against you. You also need to try to get a copy of your personnel file, because you may discover that the various "writeups" aren't actually in the file -- which could make the employer appear to be lying about everything.

You have a legal right to inspect your personnel file, and to make a copy. The employer may decide to let you inspect but refuse you any equipment with which to make a copy. So, bring a phone with a camera, or better than that, a handheld scanner and a personal computer, so you can make your own copies. Then, if you think that there are records missing from the file, you can ask the ALJ to order all of your personnel records produced at the hearing, and if those writup records are missing, then you're golden. And, if the records suddenly appear, then you can show your copies and claim that the employer has concealed/spoiled evidence (which is a crime).

The point is you need to be prepared to try to explain away each of the employer's complaints as "de minimis" (trivial) -- which simultaneously trying to find a way to show that the employer is blatently lying about some part of its claim. If you can do this, then you will win.

Regardless, unless you appeal, you'll never know whether or not you could have obtained benefits.

Hope this helps.

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